The House of Lords unanimously found the provisional listing without the opportunity to defend the allegations a breach of the rights to a fair trial and privacy. It also made a declaration of incompatibility, declaring that the relevant provisions of the Care Standards Act 2000 which set out the procedure for being placed on the POVA were incompatible with the those rights. Importantly, the court did not decide how the provisions could be made compatible with Convention rights as it was held that was a matter for Parliament to decide.
The government responded by replacing POVA with the Vetting and Barring Scheme (VBS) with referrals to the Independent Safeguarding Authority (ISA). The new system was provided for in the Safeguarding Vulnerable Groups Act 2006 (SVGA). Under the new system, all new referrals of care workers to the ISA are not provisionally listed. Listing only occurs after an individual has had the opportunity to put forward their own representations and a full investigation has been completed.
Why do the courts have this power?
The declaration of incompatibility is one of the most innovative features of the HRA. It is also important to note that the power may be exercised only by the higher courts and as a measure of last resort, where the legislation cannot be read or given effect in a way which is compatible with the Convention. As Dominic Grieve, the then Shadow Attorney General stated during the parliamentary debates, ‘[the requirement for the courts] to set out the nature and the and extent of the incompatibility...is an indispensable 58