Communicated on 15 October 2014

FOURTH SECTION

Application no. 31127/11 J.J. against the United Kingdom and 6 other applications (see list appended)

STATEMENT OF FACTS

A list of the seven applicants is set out in the appendix.

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

The Safeguarding Vulnerable Groups Act 2006 (“SVGA” – see “Relevant domestic law and practice”, below) established the Children ’ s Barred List and the Adults ’ Barred List (collectively the “Barred Lists”). Inclusion in one of the Barred Lists precluded that person from taking part in “regulated activity” in relation to the group covered by the list. Seeking to engage in “regulated activity” when not permitted was an offence. Owing to the broad range of circumstances encompassed by “regulated activity”, inclusion in a list in effect precluded an individual from working with the group covered by that list.

The applicants were included in the Barred Lists. They were not given the opportunity before inclusion in the lists to make representations. However, various options were open to them to challenge their inclusion. First, they were able to make representations to the Independent Safeguarding Authority (“ISA”) that they should be removed. Secondly, they were able to seek judicial review of the initial decision of the ISA to include them in the Barred Lists. Finally, under the version of the law in force at the relevant time they were able to appeal to the Upper Tribunal, on a point of law or a mistake of fact, against a decision by the ISA not to remove them from the Barred Lists.

Six of the seven applicants made representations to the ISA. Following the representations, they were removed from the lists. They were included on the lists for periods between two and ten months. T.A. ’ s representatives informed the Court that she intended to make representations but have not provided any information as to their outcome.

The second, fourth and fifth applicants in these proceedings lodged a judicial review of the decision to include them in the Barred Lists. They challenged the process whereby they were included in the Barred Lists. On 10 November 2010, the High Court decided that the SVGA barring scheme violated Articles 6 and 8 insofar as it required the ISA to place individuals who had been convicted of or cautioned for certain offences on the Barred Lists without the right to make prior representations. The court decided that, because the legislation could not be interpreted in accordance with the Convention under section 3 of the Human Rights Act 1998, it had to issue a declaration of incompatibility. The Government did not appeal the High Court ’ s decision.

On 1 May 2012 Parliament enacted the Protection of Freedoms Act 2012. Included in the Act were provisions amending the SVGA to enable representations to be made by affected individuals prior to the ISA making a decision whether to include them in the Barred Lists. The amendments came into force on 10 September 2012.

B. Relevant domestic law and practice

1. The Safeguarding Vulnerable Groups Act 2006

The relevant provisions of the SVGA came into force on 20 January 2009. As noted above amendments to the SVGA came into force on 10 September 2012. All the complaints brought by the applicants are covered by the law which was in force in the period between 20 January 2009 and 10 September 2012.

(a) Procedure for inclusion in the Barred Lists

Section 1 of the SVGA created a body which came to be known as the ISA. Section 2(1) required the ISA to keep two lists of individuals who were considered unsuitable to work with children and vulnerable adults respectively. Sections 2(2) and 2(3) set out that a decision whether to include an individual in the children ’ s and the adults ’ lists was to be determined in accordance with the provisions contained within the relevant paragraphs of Schedule 3 of the SVGA.

Sections 3(2) and 3(3) of the SVGA stated that a person was to be barred from regulated activity with children and vulnerable adults if they had been included in the children ’ s and adults ’ barred lists. Section 5 specified that references to regulated activity relating to children and adults should be construed in accordance with the relevant provisions of Schedule 4 of the SVGA.

Paragraphs 1 and 7 of Schedule 3 to the SVGA provided that, if any of the relevant criteria for those paragraphs, were satisfied the Secretary of State had to refer the person concerned to the ISA who had to include him automatically on the children ’ s and the adults ’ lists respectively without any right to make representations. The relevant criteria were prescribed in regulations made under the SVGA, namely the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009 (“Regulations”) ( see below ). Paragraphs 2(1) and 2(2) and 8(1) and 8(2) of Schedule 3 similarly provided that if any of the criteria prescribed for those paragraphs were satisfied the Secretary of State had to refer the person concerned to the ISA.

Paragraphs 2(3) and 8(3) of Schedule 3 dealt with the steps that the ISA was then required to take. They provided:

“On the reference being made, ISA must–

(a) include the person in the children ’ s barred list;

(b) give the person the opportunity to make representations as to why he should be removed from the children ’ s barred list.”

Paragraphs 2(4) and 8(4) of Schedule 3 provided that:

“If it appears to ISA that it is not appropriate for the person to be included in the list, it must remove him from the list.”

Regulation 4 of the Regulations dealt with the prescribed criteria for including people on the children ’ s list pursuant to paragraph 2 of Schedule 3. Of relevance to these applications was paragraph 5 of Regulation 4 which set out a criterion consisting of being convicted or cautioned of an offence specified in paragraph 2 of the Schedule to the Regulations on or after the relevant date specified in the Regulations.

Regulation 6 of the Regulations dealt with the prescribed criteria for including people on the adults ’ list pursuant to paragraph 8 of Schedule 3. Of relevance to these applications was paragraph 6(b) of Regulation 6 which set out a criterion consisting of being convicted or cautioned of an offence specified in paragraph 4 of the Schedule to the Regulations on or after the relevant date specified in the Regulations.

(b) Consequences of inclusion in the Barred Lists

As set out above, section 3 of the SVGA resulted in a person being barred from taking part in regulated activity with a group if he was included on the barred list for that group. Section 5 specified the SVGA provisions governing what constituted a regulated activity and therefore in what specific activities a barred person was unable to engage.

Section 7 made it an offence for a person to engage, or to seek to or offer to engage, in a regulated activity despite being unable to because of his inclusion in one or both of the Barred Lists.

(c) Challenges to inclusion in the Barred Lists

In addition to being able to seek judicial review of a decision of the ISA to include him on one of the Barred Lists, in certain circumstances, including those of the applicants, the SVGA gave a person an opportunity to make representations after initial inclusion on the list and subsequently to appeal if inclusion was confirmed by the ISA.

Paragraph 15 of Schedule 3 to the SVGA provided that the Secretary of State could make regulations in order to make provision for the procedure to be adopted by the ISA in any decision it had to take under the Act. In accordance with paragraph 15, the Secretary of State made the Safeguarding Vulnerable Groups Act 2006 (Barring Procedure) Regulations 2008 (“2008 Regulations”). Regulation 2(2) of the 2008 Regulations provided that the ISA had to give notice in writing of the opportunity to make representations to any person who was afford ed that possibility by Schedule 3 to the SVGA. Regulation 2(5) of the 2008 Regulations provided that a person to whom notice was given had 8 weeks from the day on which he was to be treated under those regulations as having received notification of the opportunity to make representations.

Paragraph 16(1) of Schedule 3 provided that a person who by virtue of the SVGA had the right to make representations must be able to do so in relation to all of the information on which the ISA proposed to rely to take its decision. Paragraph 16(3) excluded from the scope of the right to make representations, representations that a finding of fact by a body defined in paragraph 16(4) was incorrect.

In practice, in the period and circumstances covered by the current applications, the letter sent by the ISA, to inform a person that they had been referred to the ISA and included on the Barred Lists, also included notice of the right to make representations and a warning that a failure to do so within the time-limit would result in him remaining on the list.

Section 4 of the SVGA afforded rights of appeal to the Upper Tribunal to people affected by decisions taken by the ISA under the SVGA, including to those it had decided not to remove from the Barred Lists. Section 4(2) specified that such an appeal could only be made on the grounds that the ISA had either made a mistake of law or a mistake in any finding of fact on which its decision was based. Section 4(3) excluded from the ambit of question of law or fact the ISA ’ s decision as to whether it was appropriate to include someone on one of the Barred Lists. Section 4(4) imposed a permission requirement before a person affected by a decision of the ISA could appeal to the Upper Tribunal. Section 4(5) required that unless it found a mistake of law or fact, the Upper Tribunal must confirm a person ’ s inclusion on the Barred Lists. Section 4(6) allowed the Upper Tribunal, if it found a mistake of fact or law, to either remove a person from the Barred Lists or to remit the case to the ISA. Under section 4(7), following a remission to the ISA, and pending its new decision, a person had to be removed from the Barred Lists, unless the Upper Tribunal directed otherwise.

2. The Human Rights Act 1998

Section 3 of the Human Rights Act 1998 (“the Human Rights Act”) provides that:

“(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

(2) This section–

( a ) applies to primary legislation and subordinate legislation whenever enacted;

...”

Section 4 of the Act provides:

“(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.

(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.

...”

Finally, section 6(1) of the Act provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. Section 6(2) clarifies that:

“Subsection (1) does not apply to an act if–

(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or

(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.”

COMPLAINTS

The first applicant complains that the High Court ’ s decision of 10 November 2011 that the relevant provisions of the SVGA could not be interpreted compatibly with Articles 6 and 8 of the Convention deprived him of an effective remedy. He complains that the listing of his name on the Barred Lists was unlawful and that he could not pursue a claim for compensation. He invokes Articles 6, 8 and 13 of the Convention.

The second to seventh applicants complain under Articles 6 § 1 and 8 of the Convention about the procedure for the listing of their names on the Barring Lists. They also complain under Article 13 that they were denied an effective remedy in respect of their complaints.

QUESTION TO THE PARTIES

1. Have the applicants complied with the requirements of Article 35 § 1 of the Convention (see in particular Berry and Others v. the United Kingdom ( dec. ), nos. 19064/07, 31588/09 and 38619/09, 16 October 2012)?

Appendix

No

Application No

Lodged on

Applicant

Date of birth

Place of residence

Representative

31127/11

05/05/2011

J.J.

Born in 1974

Hertford

RadcliffesLeBrasseur , based in London

31139/11

05/05/2011

O.O.

Born in 1964

Newport

Royal College of Nursing (“RCN”), based in Leeds

31694/11

10/05/2011

T.A.

Born in 1968

Stevenage

RCN

31741/11

05/05/2011

A.A.

Bristol

RCN

31758/11

05/05/2011

C.W.

Brecon

RCN

56699/11

08/08/2011

F.O.

Born in 1970

Orpington

Clarkson Wright and Jakes Ltd, based in Orpington

8114/13

06/12/2012

S.U.

Born in 1977

Burnley

RCN