Health Bill [HL]- continued
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EUROPEAN CONVENTION ON HUMAN RIGHTS
Section 19 of the Human Rights Act 1998
384. Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement about the compatibility of the provisions of the Bill with the Convention rights (as defined in section 1 of that Act). Rt Hon. Alan Johnson (Secretary of State for Health) has made the following statement
385. In my view, the provisions of the Health Bill [HL] are compatible with the Convention rights.
Consideration of the European Convention on Human Rights
386. The Bill raises issues with regard to Articles 6 (right to a fair trial), 8 (right to respect for private and family life), 10 (freedom of expression), and 14 (prohibition of discrimination) of the European Convention on Human Rights and also Article 1 of the First Protocol to the Convention (protection of property).
387. The provisions for suspension of persons appointed to NHS and other health bodies in Schedule 3 inserted by clause 19 at Chapter 2 of Part 2 of the Bill may engage Article 6 of the Convention. Similarly the provision for suspension of directors when a TSA is appointed and for termination of office of directors when a trust is coming out of administration (Chapter 1 of Part 2 of the Bill) might also arguably engage Article 6. Some of the pharmaceutical services provisions at clauses 25 to 32 of Part 3 of the Bill may also engage Article 6 of the Convention. These include the market entry provisions which revise the control of entry test for practitioners who provide pharmaceutical services seeking to enter onto a pharmaceutical list at clauses 25 and 26 and the market exit provisions which provide PCTs or LHBs with explicit powers to act where there are concerns about the quality of services provided by a practitioner who provides pharmaceutical services in England or Wales, or, in Wales, also a practitioner who provides ophthalmic services (clauses 28 and 31 respectively).
388. As regards the suspension provisions at clause 19 of and Schedule 3 to the Bill and the provisions for suspension of directors when a TSA is appointed and for termination of the office of directors when a trust is coming out of administration at clause 15 in Chapter 1 of Part 2, the Minister in charge of the Bill considers that Article 6 is not engaged by the provisions. Article 6 applies to a civil right, which may include rights arising from service as a civil servant, a right to continue to exercise a profession, or rights arising from an allowance payable to an office holder. However, appointees to the public office appointments to which the suspension provisions relate are not civil servants. Where such appointees are professionals the suspension or termination of office would not generally prevent them from exercising their profession. And generally, a suspended person would continue to hold office so would be unlikely by suspension to suffer pecuniary loss. A loss potentially arising from the effect of suspension or termination of office on a persons reputation would not be actionable by way of enforcement as a civil right, as there is no general civil right to a good reputation.
389. If Article 6 were engaged in relation to the suspension provisions at clause 19, the Minister in charge of the Bill considers that the procedures for suspension, including in cases not governed by regulations provision for review of suspension after three months, would be fair. Where suspension powers were delegated to the Appointments Commission, if an appointee were to allege that a decision by the Appointments Commission to suspend him was not sufficiently independent, the appointee would be able to judicially review the decision. In relation to the provisions at clause 15, there would be consultation of the NHS Trust or foundation trust before a decision to trigger the TSA regime (which will result in suspension of the directors), and a fair procedure would apply before a decision to terminate the office of a particular director when a trust is coming out of administration. Both of those decisions would also be subject to judicial review. The right of appeal provided by judicial review in these circumstances would be a right which satisfies the requirements for appeal of Article 6. Therefore, the Minister in charge of the Bill considers that the provisions are compliant with Article 6.
390. Similarly, with regard to the pharmaceutical services provisions at Part 3 of the Bill, a decision by a PCT to refuse to admit a practitioner who provides pharmaceutical services to a pharmaceutical list and decisions taken by a PCT or LHB to impose a notice or withhold payments from pharmacy practitioners may arguably engage Article 6. However, such decisions would be subject to rights of appeal so satisfying the requirements of Article 6. In the case of a practitioner in England, a right of appeal against a decision of a PCT refusing admission to the pharmaceutical list is conferred by section 130 of the NHS Act. The regulation-making power in new section 150A inserted into the NHS Act by clause 28 requires that provision be made in the regulations for rights of appeal against decisions of PCTs to impose sanctions or withhold payments under that section. In the case of practitioners in Wales, the regulation-making power in new section 106A of the NHS (Wales) Act inserted by clause 31 requires that provision be made in the regulations for rights of appeal.
391. The suspension powers in Schedule 3 inserted by clause 19 of the Bill and the provisions for suspension of the directors when a TSA is appointed and for termination of the office of directors when a trust is coming out of administration (at clause 15 in Chapter 1 of Part 2) may also engage Article 8. The provision for complaints about adult social care at clause 33 in Part 3 of the Bill contain powers for obtaining and disclosing information and for publication of an adverse finding by a Local Commissioner, which may also engage rights to respect for private life protected by Article 8. Similarly the changes to the jurisdiction of the Health Service Commissioner made by the provision at clause 12 of Chapter 3 in Part 1 of the Bill to enable the Commissioner to investigate complaints about services in respect of which direct payments have been made may engage rights protected by Article 8. The provision at Part 3 of the Bill for disclosure of statistical, anonymised summary data on the income and expenses of GPs and dental practitioners by HMRC at clause 35 in Part 3 of the Bill may engage Article 8.
392. An appointee to a health body suspended under the provisions incorporated by clause 19 of the Bill would continue to receive benefits to which they were entitled by virtue of their office. Therefore, the Article 8 rights that might be affected by loss of employment would be unlikely to be engaged. Suspension would be unlikely otherwise to have consequences which would affect the private life of a person suspended. If the rights were engaged, the procedures which the legislation provides for and the availability of appeal by way of judicial review would be fair. The public interest in preventing a person against whom serious allegations have been made from exercising public office would be balanced against the requirement for protection of the fundamental rights of the suspended person in a proportionate way so that any interference would be justified.
393. As to the provisions for suspension of the directors when a TSA is appointed, and for termination of the office of directors when a trust is coming out of administration (at clause 15 in Chapter 1 of Part 2 of the Bill), the Minister in charge of the Bill considers that suspension or termination of office in those circumstances would be unlikely to have consequences which would affect the private life of the person suspended or removed from office and therefore the rights would be unlikely to be engaged. If the rights were engaged, the procedures which would apply and the availability of a remedy by way of judicial review would be fair. In any event, the Minister in charge of the Bill considers that interference with any rights under Article 8 would be justified to ensure that proper steps could be taken to deal with failing trusts in the interests of running a safe and effective health service.
394. If a Local Commissioner exercising powers under the provision at clause 33 of Part 3 of and Schedule 5 to the Bill in order to investigate complaints about social care interferes with the Article 8 rights of a provider, the Minister in charge of the Bill considers that any interference would be compatible with Article 8. The powers of a Local Commissioner will enable the Commissioner to properly investigate complaints and encourage providers to carry out recommended action. The analysis would be similar in respect of the changes to the jurisdiction of the Health Service Commissioner made by the provision at clause 12 of Chapter 3 in Part 1 of the Bill. The Minister in charge of the Bill considers that the respective powers will pursue a number of legitimate aims including the protection of health and of the rights and freedoms of others and would be proportionate so that any interference would be justified.
395. The Minister in charge of the Bill considers that the provisions for disclosure by HMRC of statistical, anonymised summary data relating to the income and expenses of GPs and dentists at clause 35 in Part 3 of the Bill would be unlikely to impinge on an individuals right to respect for privacy protected by Article 8. The disclosure of the information only in an anonymised, summarised form, for which the provisions provide, would not lead to the identification of any individual. A point could be raised that the initial provision of information to HMRC to enable identification of relevant tax records, although not covered by clause 35, engages Article 8. It might also be argued that further analysis by HMRC of its information for a non tax-related purpose also engages Article 8. Even if it was considered that these actions interfered with the rights of individuals to respect for their privacy, these actions would be proportionate and justified in the interests of the economic well-being of the country as they are essential for financial planning for the delivery of primary medical care in the NHS.
396. The provisions at clause 21 of Part 3 of the Bill for prohibiting the display of tobacco products, regulating the display of their prices and regulating the display of such products and their prices on websites may engage Article 10 (freedom of expression) of the Convention, which protects the freedom of commercial expression. The Minister in charge of the Bill is however satisfied that these provisions are compatible with the Convention. The main purpose of these provisions is to protect public health by protecting children and young people from the promotion of tobacco, with the aim of reducing the take up of smoking by them, and to provide an environment that supports smokers who are trying to quit. The protection of public health is an important counter-balance to unrestricted commercial expression. The proposed restrictions are within the margin of appreciation accorded to a state, justified by the considerable evidence as to the efficacy of the proposed restrictions and proportionate. Evidence from other countries which have introduced display bans show that the potential costs for retail outlets in complying with a display ban need not be high. Such potential costs and loss of profitability of the tobacco industry would be outweighed by potential public health gains in reductions in smoking, particularly among young people.
397. The provisions to enable the Secretary of State or a PCT to make direct payments for health care to patients at clause 11 of Chapter 3 in Part 1 of the Bill might be argued to confer an advantage on a citizen within the ambit of the Article 8 right to respect for private and family life. As initially the power may be exercised only in the context of a pilot scheme, there might then be an issue as to whether any difference in treatment of patients with similar characteristics could arise between a patient within a pilot scheme and one outside the scheme who continues to receive NHS treatment by the traditional route, contrary to Article 14. Article 14 of the Convention prohibits discrimination in the enjoyment of rights under the Convention. However in the recent case, R (Harrison) v Secretary of State for Health (1), Wakefield District PCT (2) and Wakefield Metropolitan District Council (3) CO/4680/2008 and CO/4923/2008, Mr Justice Silber held that the claim to a direct payment was not within the ambit of Article 8 23.
398. Nonetheless the Minister in charge of the Bill considers that if Article 8 were engaged, and if there were a difference in treatment, that difference in treatment would be justified and would be proportionate for the protection of health and in the interests of the economic well-being of the country. The anticipated benefits in learning from schemes would outweigh the risks of not operating such schemes in advance of possible national implementation. Piloting is expected to demonstrate, for example, which care groups are likely to benefit from health care direct payments (in terms of improved health and well-being outcomes), the types of support needed to ensure best use and management of direct payments and how best to operate a scheme. The risks associated with national implementation without piloting include wasting resources, lacking cogent guidance for administering and monitoring health care direct payments and imposing unnecessary administrative burdens on patients. The legislation requires that a pilot scheme must have a specified period and that in the regulations governing a scheme there be provision for review of a scheme. The Minister in charge of the Bill therefore is of the view that the provisions for pilot schemes are justified and proportionate, and the powers to provide for pilots would be exercised compatibly with Convention rights.
399. The provisions for prohibiting or imposing requirements in relation to the sale of tobacco from vending machines at clauses 22 and 23 of Part 3 of the Bill may engage rights to the peaceful enjoyment of possessions or for possessions not to be subject to unnecessary controls protected by Article 1 of the First Protocol. Article 1 of the First Protocol may be engaged also by the provisions for appointing TSAs to deal with unsustainable NHS trusts and foundation trusts at clauses 15 and 16 of Chapter 1 of Part 2 of and Schedule 2 to the Bill, for suspension of persons appointed to NHS and other health bodies at clause 19 of Chapter 2 of Part 2 of and Schedule 3 to the Bill and for the market exit provisions relating to a practitioner who provides pharmaceutical services in England or Wales, or, in Wales, also a practitioner who provides ophthalmic services at clauses 25 to 32 of Part 3 of the Bill.
400. However, the Minister in charge of the Bill considers that prohibiting the display of tobacco products, or regulating the display of their prices, is unlikely to engage Article 1 of the First Protocol in respect of such products. Although the restrictions might make it harder for retailers to sell such products, the European Court of Human Rights has consistently held that a loss of future income does not engage Article 1 of the First Protocol 24. Such prohibition or requirements could however engage rights to the peaceful enjoyment of the premises from which such products are sold, or of the equipment used by manufacturers for producing gantries for the display of tobacco products. Nonetheless, any such interference would be justified and proportionate for the reasons given at paragraph 396 above.
13 See, for example, judgment of 19 December 1989, Mellacher and Others, A. 169, p. 25, (1990) 12 EHRR 391.
401. The powers for prohibition of or imposition of requirements in relation to the sale of tobacco products from vending machines at clauses 22 and 23 will not deprive owners of their machines or products. The use of such powers could however be expected to give rise to an interference with the right to peaceful enjoyment of the machines, and any goodwill in the business of supplying the machines, or amount to control on the use of the machines and tobacco products. Nonetheless, a state is entitled to enforce such laws as it deems necessary to control the use of property in accordance with the general interest, provided that the restrictions are not disproportionate.
402. These provisions are aimed at protecting public health. The policy objective is to reduce smoking take-up, prevalence and the number of cigarettes smoked by under 18s, as well as to support smokers seeking to stop smoking. While tobacco vending machines account for only 1% of the overall UK market in tobacco sales, evidence shows that a disproportionate number of young people under the minimum legal age for sale of tobacco obtain cigarettes from this source. Whilst a prohibition on the sale of tobacco from vending machines would impact on the business stability of tobacco vending machine companies, or the imposition of requirements would have a cost impact on them, these measures would be a proportionate means of protecting public health (with a net benefit in life years gained by smokers as against the costs of implementing requirements or a prohibition on the sale of tobacco products from vending machines).
403. Foundation trusts have greater freedoms than NHS trusts for example to invest, borrow, and generate income. When a foundation trust is de-authorised, to avoid potential interference with rights to the peaceful enjoyment of possessions or not to be deprived of possessions protected by Article 1 of the First Protocol, clause 16 of and Schedule 2 to the Bill (inserting new Schedule 10A) contain provision to enable a de-authorised foundation trust to continue to act in accordance with arrangements previously made between the trust and a third party. The Secretary of State also has power to disapply relevant directions or guidance to de-authorised foundation trusts where necessary to protect third party rights. The Minister in charge of the Bill considers that these provisions will ensure that there is no interference with third party rights under Article 1 of Protocol 1 to the Convention.
404. It may be argued with regard to the provisions for suspension of appointees to NHS and other health bodies at clause 19 in Chapter 2 of Part 2 of and Schedule 3 to Bill that there is property in the right to exercise the functions of office from which an appointee might be suspended. The right to quiet enjoyment of such a possession might also need to be respected in the imposition of the proposed suspension provisions on existing appointees. However, the Minister in charge of the Bill considers that the proposed measures for control of any such right through suspension would be proportionate as indicated at paragraph 392 and strike a fair balance between the general interest of the community as regards the standards of conduct and competence of public office holders and the protection of an individuals fundamental rights.
405. Similarly, it might be argued that the provisions inserted by clause 15 in Chapter 1 of Part 2 of the Bill, for suspension of the directors when a TSA is appointed, and for termination of the office of directors when a trust is coming out of administration engage Article 1 of Protocol 1. Even if the rights were engaged, the Minister in charge of the Bill considers that the proposed measures would be proportionate and would strike a fair balance between the general interests of the community as regards the need to take effective steps to intervene in failing trusts and the protection of individuals fundamental rights.
406. Provision for pharmaceutical services in England at clause 28 and for pharmaceutical and ophthalmic services in Wales at clause 31 may indirectly impose restrictions in relation to the practise of a profession by placing conditions on the ability of pharmacists or ophthalmologists to provide services. PCTs in England or LHBs in Wales will have powers to impose sanctions on or withhold funds from underperforming pharmacies, (or, providers of ophthalmic services in Wales) leading ultimately to their removal from pharmaceutical lists or arrangements with LHBs. However, in exercising the powers a fair balance would be struck between the protection of any rights of pharmacists or ophthalmologists and the benefit to the general interest in monitoring the performance of pharmacies. The Minister in charge of the Bill considers that the proposed measures would be proportionate and strike a fair balance between the general interest of the community and the protection of an individuals property rights.
GLOSSARY OF TERMS AND ABBREVIATIONS
Terms used in the Notes
The Convention: the European Convention on Human Rights
Monitor: the Independent Regulator of NHS foundation trusts
Abbreviations used in the Notes
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