When I say the Independent Safeguarding Authority (ISA) contravenes the rule of law, this is what I mean. The Human Rights Act 1998, which brings the European Convention on Human Rights (ECHR) into British law clearly states:
Article 7 No punishment without law
1 No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
And yet that’s exactly what the ISA is all about – the ISA is set up to be a judge, jury and executioner for everyone’s employment rights. By its own admission it operates to a lower standard of proof than a criminal court for its Vetting and Barring Scheme (VBS):
Some applicants will be given eight weeks in which to make “representations” against the move to bar them, but those with serious convictions against their names will have no opportunity to do so.
However even those who are allowed to tell their side of the story may struggle to clear their names, as ISA guidance states clearly that it operates to a lower standard of proof than a criminal court.
“Assessing whether something happened on the ‘balance of probabilities’ means, simply, whether it is ‘more likely than not’ that something happened,” the document says.
If an individual’s representations fail and they are barred, they will be unable to work with children or vulnerable adults and face prosecution if they seek jobs in these fields.
They then have three months in which to launch an independent appeal to a body called the Upper Chamber, which will comprise a judge and two “non-legal members”.
However the applicant cannot simply appeal against the decision to bar them, or the subjective opinion of the risk they pose made by the ISA.
Guidance states: “You can only seek permission to appeal against the decision of the ISA on the ground that it made a mistake no any point of law, or in any finding of any fact which it has made and on which the decision was based.”
This could be that it interpreted a law wrongly; made an error in its own procedure; or had no evidence to support its ruling.
The guidance adds that “the decision whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact”.
If this appeal fails, individuals may try to take their legal fight to the Court of Appeal.
But they may have to wait for as long as a decade before they are allowed another chance to challenge the ISA’s ruling – with older applicants facing a longer wait than younger ones.
The guidance states: “A decision to include a person on a list means that they will be barred from the entirety of the workforce affected for a minimum period of one, five or ten years depending on the individual’s age.”
Under-18s will be barred for a year before their cases can be reviewed; 18- to 25 year-olds will have five-year bans and anyone over 25 must wait 10 years. They must prove they no longer pose a danger before they are cleared to work with children [or vulnerable adults - Ed]
In other words even if the justice system hasn’t determined that certain offenders (and this government has created an unprecedented number of those) should be denied the freedom to work with children and/or ‘vulnerable adults’, the ISA, without even using evidence which would be admissible in a court of law, can. It’s a flat-out contravention of the Human Rights Act, with a torturous (and threadbare) right of appeal, and for what benefit? The ISA wouldn’t have detected Vanessa George – how could it? For that matter when its entire operation is based on determining ‘risk’ by means of a graph matrix how will it ever catch people who genuinely pose a risk to vulnerable groups?
The Independent Safeguarding Authority must be abolished.
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