Compatibility with the European Convention on Human Rights
33. This is a Private Member’s Bill and the Government is not required to give a statement of compatibility with the Human Rights Act 1998 in accordance with section 19(1)(a) of that Act.
34. The Ministry of Justice has, nevertheless, considered the question of compatibility and has concluded that the Bill is compatible with the European Convention on Human Rights.
35. Article 8 ECHR (the right to respect for private and family life) may be engaged. This is because the taking of a urine sample from the prisoner represents an interference with the prisoner’s physical integrity. However, the Ministry of Justice considers that any interference with Article 8 rights would be in accordance with the law, given the statutory underpinning and published policy on mandatory drug testing, which contains important multi-layered procedural safeguards 1 . Any interference would be in pursuit of one or more of the legitimate aims of public safety and protection of health set out in Article 8(2) and would be a proportionate means of achieving those aims, given the importance of the aims pursued and the safeguards in place around drug testing in prisons.
36. In relation to the extent of the interference, the Ministry of Justice’s position is that any interference is limited in nature, and will not be materially increased by the amendments which are being made to section 16A. On the status quo position, prisoners are already subject to a programme of mandatory drug testing for controlled drugs and certain psychoactive substances. Where, in the future, the same samples will be tested for a broader range of substances (encompassing more psychoactive substances, prescription only medicines and pharmacy medicines) the prisoner will experience no additional interference with their right to respect for physical integrity. The Ministry of Justice does not intend to materially increase the frequency of testing within the existing mandatory drug testing framework.
37. In relation to the power to conduct prevalence testing, this places an existing practice on a clear statutory footing to promote clarity and transparency, rather than representing a departure from the status quo. Again, prevalence testing does not require additional prisoner samples to be taken; rather it relies on the testing of samples that have already been obtained through the mandatory drug testing programme or through voluntary testing. Prevalence testing is conducted on an anonymised basis which means that the results and the associated data cannot be linked to specific prisoners, and no adverse outcome for any individual prisoner can follow.
38. Given that it is accepted that Article 8 of the ECHR may be engaged by the expanded drug testing programme contemplated by the Bill, the Ministry of Justice has also separately considered whether the provisions of the Bill might engage Article 14 of the ECHR.
39. The main consideration in relation to Article 14 is the possibility that the expansion of the drug testing programme to incorporate prescription only medicines and pharmacy medicines may have an adverse differential impact for certain protected characteristic groups, in particular disabled and elderly prisoners, who are more likely to legitimately require prescription only medicines and pharmacy medicines, and therefore may be more likely to test positive for those substances. The potential concern was that a charge might be laid for the disciplinary offence in Rule 51(9) of the Prison Rules 1999, resulting in disabled and elderly prisoners being exposed to punitive action via the adjudications system.
40. The Ministry of Justice has considered the case of DH and Others v Czech Republic 2 regarding indirect discrimination. This acknowledges that a difference in treatment may take the form of "disproportionately prejudicial effects" of a general policy or measure which, though couched in neutral terms, discriminates against a group. Such a situation would amount to indirect discrimination, which does not necessarily require a discriminatory intent.
41. The Ministry of Justice is satisfied that ultimately there will be no disproportionate prejudicial effects resulting from the policy in so far as disabled or elderly prisoners are concerned, and therefore no indirect discrimination arises. This is because there is no intention to take punitive action via the prison disciplinary system for a positive test for legitimately prescribed prescription only medicines, or legitimately supplied pharmacy medicines. Further, whether to lay a disciplinary charge is a matter of discretion rather than a duty under the Prison Rules 1999. Clear policy instructions are in place in the Prison Service Order on Mandatory Drug Testing (PSO 3601) to protect vulnerable individuals and to make sure that no disciplinary action is taken after a positive test where the substance in question was legitimately prescribed or supplied. The Ministry of Justice’s view is that the existing Prison Service Order already contains sufficient safeguards to prevent any disproportionate prejudicial effect.
1 PSO 3601 – Mandatory Drug Testing https://www.justice.gov.uk/offenders/psos
2 (2008) 47 EHRR 3 ECtHR (Para 175)