House of Commons - Explanatory Note
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EUROPEAN CONVENTION ON HUMAN RIGHTS

301.     The Secretary of State has made a statement under section 19 of the Human Rights Act 1998 that the Bill is, in her view, compatible with the European Convention on Human Rights.

302.     The following issues are considered to be particularly engaged in relation to the Bill, although careful consideration has been given to all aspects of human rights in relation to these proposals.

Part 1: Smoking

303.     The question of whether taking measures of the kind provided for in this Bill to control the use of products which are lawfully on sale to persons over 16 would breach the rights in Article 8 (right to respect for private and family life) was considered. However, it was not felt that, even if such rights were engaged, there would be any breach of such rights. Any interference with such rights is justified on the grounds of protection of health.

Part 2: Prevention and control of health care associated infections

304.     The powers to enter and inspect premises, to obtain and disclose information and to require explanation may potentially infringe an individual's rights under Article 8 of the Convention. However the Department is of the opinion that the provisions pursue a number of legitimate aims, including public safety, the protection of health and the protection of the rights and freedoms of others and it is considered that the provisions are proportionate.

305.     It is possible that the rights in Article 1 of the First Protocol (the right to the peaceful enjoyment of possessions and protection of property) are also engaged but again the provisions are felt to be proportionate to the legitimate aim of protecting public safety and public funds and to strike a fair balance between the protection of an individual's right to property and the benefit to the public as a whole.

Part 3: Controlled drugs

306.     The duty to disclose information and the entry and inspection powers may engage the rights in Article 8. However, in both cases it is considered that any such interference with Article 8 rights would be justified as being for a legitimate aim (the protection of the health of patients or the general public) and proportionate to the pursuit of such aim.

307.     The power of entry and inspection may also engage the rights under Article 1 of the First Protocol. However, it is again considered that the use of such powers, being for the purpose of securing the safe, appropriate and effective management and use of controlled drugs, would be proportionate to the pursuit of the legitimate aim of protecting patients and the public.

308.     It is considered that Article 6 (the right to a fair trial), in particular the right against self incrimination inherent in that Article, may potentially be engaged where a police officer or authorised person inspects stocks of controlled drugs or precautions taken for the safe custody of such drugs as the person in charge of the drugs may have committed an offence under the Misuse of Drugs Act 1971. However it is considered that the limitation on the purpose for which such powers of entry and inspection may be used (for securing the safe, appropriate and effective management and use of controlled drugs) strikes a fair balance between and individual's privilege against self incrimination and the wider benefit to the public as a whole in the proper control of the management and use of controlled drugs.

Part 4: Drugs, Medicines and Pharmacies

Ophthalmic services

309.     The power of entry and inspection, which are necessary to monitor compliance with quality standards and to make providers and suppliers accountable for the funding distributed to them, could amount to an interference with the rights in Article 8 and in Article 1 of the First Protocol. However, it is considered that any such interference would be justified, being for a legitimate aim and proportionate.

Protection of NHS from fraud and other unlawful activities

310.     The powers to require the production of documents in Chapter 3 could be considered to be an interference with the rights in Article 8. Any such interference is considered justifiable. The exercise of such powers will be subject to regulations and to a code of practice. The provisions pursue a legitimate aim, the prevention of crime, the protection of health and the protection of rights and freedoms of others. The powers are considered to be proportionate to that aim and to strike the right balance between the protection of an individual's right to respect for his private and family life and the benefit to the wider public.

311.     Article 6 of the Convention may be engaged where a disclosure is sought from a person in the course of an investigation and in relation to the defences to the criminal charges. However, it is considered that the powers are proportionate and will be exercised in accordance with regulations and a code of practice and that a fair balance is struck between the rights of the individual not to incriminate himself and the benefit to the wider public such as reduction of wastage of resources which may otherwise be spent on healthcare.

Part 6: Transfer of criminal liabilities

312.     It is not considered that these provisions would breach Article 7 (the right not to be held guilty of a criminal offence on account of an act or omission that was not a criminal offence at the time) as the act for which any body to which the liability transferred may be prosecuted would have been an offence at the relevant time.

313.     It is not considered that Article 6 would be contravened as, even if there was difficulty in any particular case in gathering evidence in defence of any charge, such matters could be dealt with by the trial judge in that particular case.

 
 
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Prepared: 27 October 2005