Appendix 2: Letter dated 6 December 2007 to Ben
Bradshaw MP, Minister of State for Health Services, Department
of Health
The Joint Committee on Human Rights is considering
the compatibility of the Health and Social Care Bill with the
United Kingdom's human rights obligations.
Thank you for your letter dated 26 November 2005
on the Bill. The further explanation of the Government's views
provided in that letter will be helpful in assisting our work
on this Bill. However, it is unfortunate that we received your
letter almost two weeks after the Bill was published and several
days after the Bill had its second reading in the House of Commons.
We consider that in so far as the purpose of this
Bill is intended to enhance protection of the rights of patients
and users of health and social care services, it may be considered
to have a positive, human rights enhancing role. However, the
Committee would be grateful if you could provide a further explanation
of the Government's view that the proposals in the Bill are compatible
with the Convention rights guaranteed by the Human Rights Act
1998. In particular, we would be grateful for an explanation
of the Government's views on a number of matters which we consider
capable of raising significant human rights issues.
(1) Compulsory Powers and Public Health
(Part 3)
Clause 119 of the Bill amends the provisions of the
Public Health (Control of Disease) 1984 Act ("the Public
Health Act") and includes a number of provisions which will
either grant or enable the use of compulsory powers, including
powers of quarantine and compulsory medical examination. The
Explanatory Notes explain that the Government accepts that a number
of the new provisions may engage a number of Convention rights.
The Government has given particular consideration to provisions
"relating to quarantine, isolation, detention, medical examination,
and powers of entry in respect of public health investigations."
The Explanatory Notes explain that the "purpose of these
provisions is to protect the public from significant public health
risks and the Convention itself envisages that certain rights
can lawfully be interfered with on public health grounds. Safeguards,
such as limits on the period in respect of detention, quarantine
or isolation, are also built into the legislation to minimise
impact on individuals". There is more extensive analysis
of the Government's views on Convention compatibility with Articles
5 (the right to liberty), 6 (the right to a fair hearing), 8 (the
right to respect for private and family life), Article 11 (the
right to freedom of association) and Article 1, Protocol 1 ECHR
(the right to the peaceful enjoyment of possessions), in both
the Explanatory Notes and the accompanying impact assessment.
The Impact Assessment accompanying this Part of the Bill explains
that the Government has also considered Article 9 ECHR (the right
to freedom of religion and belief).
The Committee has a number of specific questions
about these provisions which clearly raise significant human rights
issues.
(a) General
The Impact Assessment which accompanies the Bill
explains that the Government considers that existing legislation
is "insufficiently equipped to deal effectively with today's
public health concerns."
1. Can the Government provide evidence, either
from the past application of the Public Health (Control of Disease)
Act 1984, or otherwise, that the powers in that Act are inadequate
to deal with "today's public health concerns". Have
there been any cases where the powers in that Act, or in other
legislation, such as the Civil Contingencies Act, have been inadequate
to meet a significant risk to public health. In particular have
there been:
a. Any cases of potential contamination, such
as cases of radiation poisoning, during which local authorities
or central Government were unable to respond adequately to a serious
risk to public health; and/or
b. Any cases or outbreaks of diseases not
covered by existing legislation, during which local authorities
or central Government were unable to respond adequately to a serious
risk to public health; and/or
c. Any cases where a person was suspected
of being infected by a relevant disease, but was not suffering
from symptoms, and so was not covered by the existing legislation,
where local authorities or central Government were unable to respond
adequately to a serious risk to public health.
A significant amount of the detail in this part of
the Bill is delegated to secondary legislation.
2. I would be grateful if you could provide
the Committee with a copy of any draft Regulations prepared or
proposed for the purposes of Part 3 of the Bill.
(b) Contamination and the Right to Liberty: Application
of Article 5(1)(e) ECHR
The Government considers that these provisions will
only potentially engage the right to liberty guaranteed by Article
5 ECHR. The Explanatory Notes explain that, in the Government's
view, a quarantine imposed under these provisions may generally
only engage Article 8 ECHR. Article 5(1)(e) enables a deprivation
of liberty to be justified where it is imposed for the prevention
of the spread of infectious diseases. The Explanatory Notes explain
that "the Department considers that [Article 5(1)(e)] may
be read as allowing the restriction of the right of liberty for
the prevention of the spreading of contamination".
3. Can the Government provide evidence, either
from the past application of the Public Health (Control of Disease)
Act 1984, or otherwise, that the application of powers granted
to either the Secretary of State or a justice of the peace, will
lead to restrictions on individuals which amount generally to
an infringement of their right to respect for private life under
Article 8, rather than a deprivation of liberty for the purposes
of Article 5 ECHR?
4. Can the Government provide reasons for
its view that the exception to the individual right to liberty
in Article 5(1)(e) of the ECHR can be read broadly to include
detention for the purpose of the prevention of the spread of contamination?
(c) Proposed Compulsory Powers of Justices of
the Peace (New Section 45G - 45J)
The Bill contains broad powers for a justice of the
peace to order health measures in relation to persons (New Section
45G). These provisions apply where a justice of the peace is
satisfied that a person is or may be infected or contaminated
and where that infection or contamination presents or could present
significant harm to human health; there is a risk that the person
might infect or contaminate others; and that it is necessary to
make the order in order to reduce or remove that risk. An order
may include compulsory medical examination, detention, isolation
and quarantine, a requirement to answer questions about one's
health or "other circumstances" and compulsory training
and advice on risk reduction. Powers for a justice of the peace
to make similar orders in relation to threats to public health
posed by things or premises (New Section 45H and 45I).
In your letter, and in the Explanatory Notes, you
identify a number of safeguards which accompany the broad powers
of the justice of the peace to make orders in respect of persons,
things or premises ("a Part 2A Order"), including that
New Sections 45G(7) and 45H(7) require the Secretary of State
to make regulations setting out the evidence that needs to be
provided to a justice of the peace in order to support a decision
that a Part 2A order is "necessary".
5. In light of the importance of this decision,
I would be grateful if you could explain (a) what evidence the
Government considers should be relevant to this decision and (b)
why it is appropriate, in relation to a power capable of interfering
with liberty, to leave these matters to secondary legislation
rather than spell them out clearly on the face of the Bill.
Additional safeguards considered in the Explanatory
Notes include that the Secretary of State may make provision by
regulation, including for a) the type of investigation which may
be undertaken as part of a medical examination; b) the manner
in which measures pursuant to a Part 2A Order are to be taken;
c) who is to be responsible for executing and enforcing such measures;
d) who will be liable for the relevant costs; and d) the payment
of compensation or expenses in connection with such measures.
These are all provisions which are currently provided for on
the face of Part 2 of the existing legislation, which will be
superseded by these proposals.
6. In light of the importance of these safeguards
to the protection of individual rights to respect for physical
integrity, to liberty and to peaceful enjoyment of possessions,
I would be grateful if you could explain:
a. what type of investigation the Government
considers will be covered by a medical examination;
b. what considerations the Government considers
will be relevant to the manner in which measures under a Part
2A Order are undertaken;
c. who the Government envisages will be responsible
for executing and enforcing such measures;
d. what considerations the Government considers
will be relevant to a decision on costs associated with public
health measures under a Part 2A Order;
e. in what circumstances compensation or expenses
be payable in connection with these measures, and, if compensation
is to be discretionary, with whom the relevant discretion should
lie.
7. In light of the importance of these safeguards
to the protection of individual rights to respect for physical
integrity, to liberty and to peaceful enjoyment of possessions,
I would be grateful if you could explain why the Government considers
that it is appropriate to leave these matters to secondary legislation
rather than spell them out clearly on the face of the Bill.
Part 2A orders will be available where a person "is
or may be" infected or contaminated, and that infection or
contamination "presents or could present" significant
harm to human health and there is a risk that the person may infect
or contaminate others. The justice of the peace must be satisfied
that the order is necessary in order to "remove or reduce"
the relevant risk. This, in effect, will mean that the Bill enables
orders enabling detention and compulsory medical examination of
healthy people who are suspected of having any disease or being
affected by any contamination. The only limitation on the exercise
of these powers are the requirements that the relevant infection
presents or could present "significant harm" to public
health and that the measures are considered "necessary"
to avoid the risk of infection or contamination of other people.
8. In light of these limited safeguards, I
would be grateful if you could provide a further explanation of
the Government's view that these provisions are sufficiently certain
to be considered accessible and accompanied by adequate safeguards
to ensure that these powers are exercised in a manner which ensures
that any interference with individual rights, including to liberty,
are strictly required by the danger posed to public health.
9. The proposed power for the Secretary of
State to make regulations imposing restrictions or requirements
on people, things or premises such as quarantine or compulsory
medical examination; is limited to circumstances where there is
a "serious and imminent threat to public health". Can
the Government explain why the power to make Part 2A orders of
a similar kind should not be similarly limited to the most serious
of cases?
During the Second Reading debate, the Minister was
asked for an explanation of why the Government considered it appropriate
to grant these compulsory powers to justices of the peace, acting
alone, rather than as magistrates in a magistrate's court.[46]
In the existing legislation, local authorities have specific,
defined powers in relation to public health measures and justices
of the peace have specific powers to detain individuals and have
them taken to hospital for examination or treatment. In light
of the new, broad compulsory powers being extended by this Bill
to justices of the peace, it has been suggested that it would
be more appropriate for decisions to be taken ordinarily by magistrates
sitting in a magistrates court with all the support that a court
setting affords. While there may be a need to make provision
for circumstances where, in an emergency, decisions might take
place elsewhere, or be taken in the first instance by a justice
of the peace and later confirmed in a magistrates court, where
a decision needs to be taken which may include an assessment of
whether or not it is necessary to deprive an individual of their
liberty or to subject an individual to a compulsory medical examination,
the extent of prior judicial authorisation will be key to the
assessment of whether appropriate safeguards are in place to ensure
that individual decisions are proportionate and compatible with
individual rights.
10. Why does the Government consider that
it is appropriate for justices of the peace, rather than magistrates
courts, to exercise the broad compulsory powers envisaged in Part
2A?
(d) Proposed regulation making powers
The Bill also proposes broad enabling powers for
the Secretary of State to make additional regulations for the
purpose of "preventing protecting against, controlling or
providing a public health response to the incidence or spread
of infection or contamination". These regulation making
powers are extremely broad and include powers enabling the imposition
of restrictions on persons, things or premises. These powers
include restrictions on gatherings and events and in certain circumstances
may include powers which would otherwise be imposed by a justice
of the peace (i.e. including provisions in relation to persons,
premises and things, such as detention, quarantine, seizure etc).
These provisions include some limited safeguards for the protection
of Convention rights, including the requirement that restrictions
in regulations are only made when the relevant Minister considers,
when making the order, that the "restriction or requirement
is proportionate to what is sought to be achieved by imposing
it". Regulations which impose restrictions or requirements
which would otherwise be imposed by a justice of the peace must
be either "made in response to a serious and imminent threat
to public health" or "the imposition of a restriction
or requirement is expressed to be contingent on there being such
a threat at the time when it is imposed" (New Sections 45C
and 45 D).
11. I would be grateful if you could provide
a more detailed explanation of the Government's view that these
proposals are sufficiently certain and accompanied by adequate
safeguards to ensure compatibility with the Convention rights
considered in the Explanatory Notes, in your letter and in the
Impact Assessment accompanying these provisions.
12. In particular, I would be grateful if
you could explain the purpose that these powers will serve and
why the Government considers that these powers are necessary for
the protection of public health. I would be grateful if the Government
could provide the Committee with any evidence it has that the
broad powers proposed for justices of the peace will be inadequate
to meet any risk of significant harm to public health.
13. In your letter, you refer to proposed
safeguards which accompany these provisions:
a. You rely upon the requirement on the Secretary
of State to consider whether a measure will be "proportionate
to what is sought to be achieved by imposing it". I would
be grateful if you could explain why the proportionality provisions
in the Bill do not refer to the risk to public health which the
Secretary of State seeks to address.
b. The Secretary of State will only be able
to impose specific requirements or restrictions on individuals
when regulations are made either a) in response to a "serious
and imminent threat to public health" or b) where the imposition
of a requirement or restriction is expressed to be contingent
on there being such a threat "at the time when it is imposed".
- Can you explain why it would be necessary
for the Secretary of State to exercise any regulation making powers
under these provisions before a serious and imminent threat arises,
particularly in light of the broad proposed powers for justices
of the peace?
- Can you explain the Government's view that
regulations which enable the imposition of restrictions by the
Secretary of State, conditional on a serious and imminent threat
will be compatible with the requirement for legal certainty imposed
by the Convention and the common law? In these circumstances,
who will determine that a threat is serious and imminent?
- In this context, does the Government consider
that a restriction or requirement imposed under these provisions
should remain in place after the threat level has decreased from
a level which is considered serious and imminent? If so, could
you explain the Government's view that this continued use of compulsory
powers would be compatible with the Convention rights.
c. The Bill provides that the Secretary of
State may for the purposes of giving effect to any international
agreement or "arrangement" amend any enactment. I would
be grateful if you could explain (a) what "arrangements"
the Government consider will be implemented using this provision;
(b) whether this provision will enable the broader amendment of
the Public Health (Control of Disease) Act 1984 than is provided
for in this Bill; (c) whether the Government consider that this
provision will enable the Secretary of State to amend the provisions
of the Human Rights Act 1998 or the Data Protection Act 1998;
and (d) whether there are any other enactments not covered by
the provision, including for example, the Parliament Acts.
(2) Weighing and Measuring Children (Article
8, ECHR)
The Government explain that it is their view that
although these provisions will engage the rights of children to
respect for their private lives as guaranteed by Article 8 ECHR,
that the Department "is of the view that the proposed use
of data will pursue the legitimate aim of the protection of health."
The Government considers that the proposals will be justified
under Article 8(2) as:
"the information will be gathered in accordance
with the data protection concept of fair processing; the information
will be gathered in familiar school surroundings, in circumstances
where the privacy of the child is protected; personal details
will be removed from the information before it is used for research
or surveillance; and other uses of the information will be restricted.
Finally, regulations will be able to provide for consent to be
refused"
Unfortunately, neither the Explanatory Notes nor
the Minister's letter provide evidence for the value that this
monitoring process will play in securing public health. Similarly,
none of the safeguards which are referred to in the Explanatory
Notes are on the face of the Bill.
14. I would be grateful if you could provide
a fuller explanation of the Government's view that the benefits
which these proposals would present for the protection of public
health are proportionate to the interference with a child's right
to respect for his or her private life which these provisions
would enable. In particular, I would be grateful if you could
explain whether the Government has gathered any substantive evidence
on the value of a national scheme.
15. Could you explain the precise purposes
for which the Government intends to use the data gathered using
these powers, including an explanation of what the reference in
the Explanatory Notes to "surveillance" means?
16. Why does the Government consider, particularly
in light of the justification provided in the Explanatory Notes,
that it is appropriate for key safeguards, such as the right to
withhold consent and the purpose for which information can be
used either with or without identifying material, to be left to
secondary legislation?
17. If draft regulations are proposed or have
been prepared to accompany these clauses, I would be grateful
if you could provide the Committee with a copy.
(3) Meaning of Public Authority: the Application
of the Human Rights Act (Section 6, HRA 1998)
During the second reading debate on the Bill, on
26 November 2007, you commented on the application of Section
6, HRA 1998 to private sector providers of health and social care
services:
"Someone mentioned the Human Rights Act 1998
and independent sector homes. We hope to be in a position to tackle
that in the forthcoming Green Paper on the British Bill of Rights
and duties, which would allow us to deal with the matter in the
wider context of the public authority definition. Including that
definition in the Bill causes a problem because it is so vast.
However, we will strengthen the regulatory powers in the measure
to ensure that the care quality commission can enforce the requirements
in line with the relevant provisions of the Human Rights Act."
(emphasis added)
On the same day, Michael Wills MP, Minister for State
for Human Rights told us that it was the Government's intention
to use this Bill to strengthen the regulatory powers to ensure
that the Care Quality Commission can enforce regulatory requirements
in line with the relevant provisions of the Human Rights Act.
18. I would be grateful if you could tell
us how, precisely, the Government intends to strengthen the regulatory
powers of the Care Quality Commission to ensure that they can
"enforce the requirements in line with the relevant provisions
of the Human Rights Act". In particular:
a. Will you confirm that it remains the Government's
view, expressed in 1998 during the passage of the HRA and again
after the judgment in YL v Birmingham CC, that
private providers of health and social care services exercise
functions of a public nature and should be covered by Section
6, HRA 1998 when exercising those functions?
b. Can you explain why, despite early commitments
by Baroness Ashton, the then Minister for Human Rights, to ensure
that private care home providers would be subject to the application
of Section 6, HRA, a long-term solution for this sector will now
need to await the conclusion of the proposed, lengthy, discussion
on a Bill of Rights for Britain?
c. The Minister for State for Human Rights
has told us that the discussion on a Bill of Rights for Britain
is not considered an opportunity for the Government to depart
from the HRA 1998 or the duties in that Act. Against this background,
why does the Government consider that the debate on a Bill of
Rights for Britain is an appropriate context for the resolution
of the protection gap created by our courts in the intended application
of that Act?
d. Why does the Government consider that the
Care Quality Commission will be able to impose standards equivalent
to the duties imposed by Section 6, HRA in secondary legislation?
e. The Care Quality Commission will only regulate
services in England. How does the Government hope to ensure that
private providers of health and social care services in Wales,
Scotland and Northern Ireland are subject to the same regulatory
standards which the Government propose as a short term solution
to guarantee the rights of service users?
(4) Powers of the OHPA: Fair Hearing by
an Independent Tribunal (Part 2)
Part 2 of the Bill creates a new body, the Office
of the Health Professions Adjudicator (OHPA) and provides that
OHPA will take over fitness to practise cases from the GMC (in
relation to doctors) and the General Optical Council (in relation
to opticians). The Bill provides for the standard of proof
applied during these hearings to be changed from the criminal
standard (beyond reasonable doubt) to the civil standard (on a
balance of probabilities). This standard will also apply to other
regulated professionals in the sector.
In your letter, you refer to the case of Albert
le Compte.[47]
In that case, the ECHR refused to determine
whether disciplinary proceedings involved the determination of
a criminal charge. Instead, the Court gave directions that in
some circumstances, the potential outcome of the proceedings might
be so serious as to require the same guarantees as if the proceedings
involved the determination of a criminal charge. You explain that
it is the Government's view that, when considering more serious
cases, panels will generally apply the "enhanced" civil
standard of proof. It is the Government's view that our courts
consider that this standard is unlikely to lead to a different
result than the application of the criminal standard.
19. I would be grateful if you could provide
a further explanation of the Government's views on the compatibility
of these provisions with Article 6 ECHR, with particular emphasis
on cases which (a) may involve accusations of activity which may
also amount to a criminal offence and (b) cases which may involve
an individual being prevented from continuing in his or her profession.
20. I would be grateful if you could explain
why the Government considers that it is appropriate in circumstances
which may involve allegations amounting to a criminal offence
to leave the use of a higher civil standard open to the discretion
of the relevant panel of OHPA.
(5) Duties and Disclosure (Article 8, ECHR)(Clauses
54, 70 - 71)
CQC: Disclosure of Information
Clause 54 permits the Commission to make information
publicly available in relation to the provision of NHS Care or
adult social services or the carrying on of regulated activities.
This power is subject to Clause 70 which makes it an offence
to disclose confidential information which identifies an individual.
Clauses 62 - 68 and Schedule 4 make provision for CQC to interact
with other bodies, including co-operation and providing assistance.
Clause 70 makes it an offence to knowingly or recklessly disclose
confidential information in so far as it relates to, and identifies,
an individual. Clause 71 includes a number of broad defences to
this offence which include that the disclosure was made to any
person or body in circumstances where the accused reasonably believed
that disclosure "was necessary or expedient for the person
or body to have information for the purpose of exercising functions
of that person or body under any enactment". It will also
be a defence if the disclosure was made for the purpose of "facilitating
the exercise of any of the Commission's functions". Clause
73 relates to the disclosure of information by CQC in the course
of exercising its functions. Disclosure of personal information
will only be expressly permitted if it does not identify the individual
concerned or if it is disclosed with consent. In other cases,
the information may be disclosed, despite any common law rules
of confidence, where "made to any person or body in circumstances
where it is necessary or expedient for the person or body to have
the information for the purpose of exercising the functions of
that person or body under the enactment" or the "disclosure
is made for the purpose of facilitating the exercise of any of
the Commission's functions".
Neither the Explanatory Notes nor the Minister's
letter deal with the general provisions in the Bill which relate
to disclosure and protection of individual personal information.
In its recent work, the Committee has frequently referred to
the right to respect for personal information, as guaranteed by
Article 8 ECHR.
21. I would be grateful if you could explain
the Government's view that these provisions contain adequate safeguards
to protect the right to respect for personal information, in so
far as that right is guaranteed by Article 8 ECHR.
General Duty of Co-operation (Clause 112)
Clause 112 enables the Secretary of State and the
Welsh ministers to make provision requiring "designated bodies"
to co-operate with each other in connection with the sharing of
information which relates to the conduct and performance of health
care workers. The regulations may include certain prescribed
conditions for disclosure. The Government accepts that these
provisions may engage the right to respect for private life as
protected by Article 8 ECHR. The Explanatory Notes explain that
the purpose of any disclosure will be to protect the health and
rights of patients or the general public. Although the Explanatory
Notes correctly identify that this will be a legitimate aim for
the purposes of Article 8(2) ECHR, there is no analysis in the
Explanatory Notes of the Government's view that any disclosure
will be proportionate to that aim
22. I would be grateful if you could explain
the Government's view that these provisions are sufficiently certain
and contain appropriate safeguards to ensure compatibility with
Article 8(2). Specifically, I would be grateful if you could
explain why the Government considers that these proposals are
necessary and proportionate to meet their stated, legitimate,
aim of protecting the health and the rights of patients and the
general public.
I would be grateful for your response to these questions
by 3 January 2007.
46 HC Deb, 26 November 2007, Cols 74 - 75 Back
47
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