Legislative Scrutiny: Welfare Reform Bill; Apprenticeships, Skills, Children and Learning Bill; Health Bill - Human Rights Joint Committee Contents

Government Bills

Bills drawn to the special attention of each House

1  Welfare Reform Bill
Date introduced to first House

Date introduced to second House

Current Bill Number

Previous Reports

14 January 2009

18 March 2009

HL Bill 32



1.1 The Welfare Reform Bill was introduced to the House of Commons on 14 January 2009 and completed its stages in the House of Commons on 17 March 2009. The Bill was introduced to the House of Lords on 18 March 2009 and will have its second reading on 29 April 2009. Lord Mc Kenzie of Luton has made a statement that the Bill is compatible with Convention rights under section 19(1)(a) of the Human Rights Act 1998 (HRA). An explanation of the Government's view on the Bill's compatibility with Convention rights is provided in paragraphs 403 - 463 of the Explanatory Notes accompanying the Bill.[1]

1.2 On 27 February 2009, we wrote to James Purnell MP, the Secretary of State for Work and Pensions, to ask for further information in respect of human rights issues arising from the Bill.[2] We received a response on 19 March 2009.[3] We publish our correspondence with this report.

1.3 Following our recent practice, we published our correspondence on the Bill and called for submissions from interested individuals and bodies. We received a number of submissions on the Bill which we publish with this Report. We welcome the engagement of the public and interested organisations in our legislative scrutiny work.


1.4 This is the second Welfare Reform Bill which we have considered in as many sessions. [4] It follows the Government consultation paper, No one written off: reforming welfare to reward responsibility and a subsequent White Paper, Raising expectations and increasing support: reforming welfare for the future.[5] The Bill includes powers to establish a 'work for your benefit' scheme for those unemployed and claiming Job Seekers Allowance (JSA) for longer than 2 years;[6] to allow piloting of extended and personalised 'conditionality' in respect of JSA; and to enable the future abolition of income support and the move of all claimants to either Employment Support Allowance (ESA) or JSA.[7] The Bill proposes specific treatment for JSA claimants affected by drug and alcohol dependency;[8] for the purposes of allowing specific functions to be contracted out[9] and for additional sanctions for non-attendance by JSA claimants at interviews and in cases of benefit fraud and violence against Job Centre staff.[10]

1.5 The Bill also provides for a pilot to study increased control of budgets for disabled people seeking support to participate in work, education or other training programmes;[11] new powers for the Child Maintenance and Enforcement Commission[12] and changes to require unmarried parents to register the birth of their child jointly.[13]

1.6 There are a number of significant human rights issues that arise in the context of this Bill. These divide into three categories: a) Welfare reform; b) Powers of the Child Maintenance Enforcement Commission and c) Birth registration.

Welfare, benefits and human rights

1.7 The right to social security and the right to an adequate standard of living are both widely recognised in international human rights standards. For example, the Universal Declaration of Human Rights recognises the right to "security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control".[14] The UK is a party to the International Covenant on Economic Social and Cultural Rights (ICESCR), which similarly guarantees the right to an adequate standard of living and to social security. Article 11 ICESCR makes clear that circumstances where an individual is permitted to become destitute would be in breach of the right to an adequate standard of living, which includes "adequate food, clothing and housing…and the continuous improvement of living conditions".[15]

1.8 In their recent General Comment on the scope of this right, the UN Committee on Economic and Social Rights explained:

    The right to social security is of central importance in guaranteeing human dignity for all persons when they are faced with circumstances that deprive them of their capacity to fully realise their Covenant rights.[16]

    To demonstrate compliance with their general and specific obligations, States parties must show that they have taken the necessary steps towards the realisation of the right to social security within their maximum resources, and have guaranteed that the right is enjoyed without discrimination and equally by men and women…

    Violations include, for example, the adoption of deliberately retrogressive measures incompatible with the core obligations…the formal repeal or suspension of legislation necessary for the continued enjoyment of the right to social security; active support for measures adopted by third parties which are inconsistent with the right to social security; the establishment of different eligibility conditions for social assistance benefits for disadvantaged individuals depending on the place of residence; active denial of the rights of women or particular individuals or groups.

    Violations through acts of omission can occur when the State party fails to take sufficient and appropriate action to realise the right to social security. In the context of social security, examples of such violations include the failure to take appropriate steps towards the full realisation of everyone's right to social security; the failure to enforce relevant laws or put into effect policies designed to implement the right to social security [...].The Covenant is clear that, although States are free to secure its minimum obligations through a variety of means, any failure to meet the minimum standards envisaged will be in violation of the international standards which the United Kingdom has accepted. The Government has recently stressed that it considers that the principle means of securing these rights in domestic law should be through legislation enacted by a democratically accountable Parliament.[17] In our view, in ratifying the Covenant, the UK has made a commitment, binding in international law, to abide by the terms of the Covenant. This requires government, Parliament and the courts to make efforts to ensure the fullest possible compliance with the terms of the ICESCR.[18]

1.9 These broad rights are subject to the principle of progressive realisation within available resources. The right must be secured without discrimination and the State must take deliberate, concrete and targeted steps towards their realisation. The UN Committee has explained that there is a strong presumption in the Convention that retrogressive measures taken in relation to the right to social security are prohibited.[19]

1.10 The European Court of Human Rights ("ECtHR") has long treated contributory benefits as "possessions" for the purpose of Article 1, Protocol 1 ECHR. Any interference with or deprivation of established rights to contributory benefit must strike a "fair balance" between the right of the individual to peaceful enjoyment of their possessions and the public interest and must be "in accordance with law".[20] Although the ECtHR was initially reluctant to extend the protection of Article 1, Protocol 1 ECHR to non-contributory benefits, their recent case-law suggests that all benefits must be treated as possessions protected by the Convention.[21] Individual states do however retain a wide "margin of appreciation" in respect of the establishment of domestic welfare systems: that is to say, the ECtHR allows states some considerable leeway in how they design their welfare systems. [22]

1.11 Although this margin is wide, it is not unbounded. Social welfare systems must be administered in a way that is not arbitrary and is not based upon unjustified discrimination. [23] Changes to existing benefits also must not be such as to take away the very essence of the right to peaceful enjoyment.

1.12 Two additional human rights issues generally arise in the context of welfare administration: (a) the right to a fair hearing by an independent and impartial tribunal when the right to access benefit or to continue to access benefits is determined (Article 6(1) ECHR) and (b) the positive obligation on the state to ensure that individuals are not exposed to destitution and hardship at a level which will endanger their right to respect for private or family life (Article 8 ECHR) or amount to inhuman or degrading treatment (Article 3 ECHR).[24]

1.13 Acute political differences often arise in the context of social welfare. Human rights law may not have a clear answer in respect of many of the questions which arise. However, individuals enjoy a minimum right to social security which supports an adequate standard of living. To be human rights compatible, a scheme of social benefits cannot be administered arbitrarily or on a discriminatory basis. In the light of the Government's view that it is principally for Parliamentarians to secure compliance with the right to social security and the right to an adequate standard of living, we consider that it is important that Parliamentarians subject the Government's analysis of these provisions to close scrutiny for compliance with these minimum standards.

1.14 We note that some NGOs have provided evidence that the current rates of welfare support are currently inadequate to meet the basic needs of many claimants and their families.[25] For example, in a recent report on UK poverty and the economic downturn, Oxfam provided the following statistics:

    Jobseekers Allowance (JSA) for a newly unemployed person over the age of 25 is £60.50 per week (£47.95 for people aged 16-24). The gap between benefits and earnings has almost doubled since 1979 when benefit increases stopped being linked to earnings increases. If that link was still in place, JSA in 2007 would have been £113.26 per week. Increasing JSA in line with earnings since 1997 would give it a value of £75 per week. Recent research by the Joseph Rowntree Foundation into minimum income standards has shown that a single working-age adult needs an income of at least £153 a week 'in order to have the opportunities and choices necessary to participate in society.[26]

1.15 These figures for JSA may be subject to sanctions for failure to comply with conditionality requirements.[27] Some NGOs have expressed their concern that in seeking to increase conditionality in respect of benefits during a recession, undue and ineffective pressure may be placed on claimants and Job Centre Plus staff.[28] In debates during the Bill's passage through the House of Commons, concerns were raised about the quality of the evidence relied on by the Government to support its proposals.[29] Similarly a number of members raised concerns that proposals designed to increase conditionality of benefits, encouraging claimants into work, were not appropriate in economic circumstances where jobs might become increasingly scarce, placing increasing demand on welfare benefits.[30] Others unsuccessfully proposed amendments to increase the minimum level of benefits available to claimants or to reduce the application of the proposals for conditionality to certain groups, including lone parents.[31]

1.16 In the introduction to the White Paper on which this Bill was based, the Minister explained that the purpose of these reforms is to improve the lives of "hundreds of thousands of people". He explained that that the reforms are designed to ensure that more people are supported into work and greater support is given to those who are unable to work. In addition, the Government considered that its goals of ending child poverty and achieving equality for disabled people should be "within reach". He explained the Government's view that there was greater incentive for reform during an economic downturn as reform would "help people through".[32] We commend the Government's intention to support more people, and in particular people who might otherwise be disadvantaged in the employment market, into work. This is consistent with many international human rights instruments which recognise the right to work[33] and with the right to an adequate standard of living. However, the means which the Government propose to achieve these goals must be assessed by Parliamentarians within the UK's wider international human rights obligations. These proposals provide a good opportunity for Government to assess the quality of the current welfare reform system against its international human rights obligations. Parliamentarians should be provided with a clear explanation and supporting evidence of how these proposals will support the right of everyone to an adequate standard of living and ensure that our welfare system will operate in a way which is compatible with basic human rights standards.

Welfare reform: significant human rights issues

1.17 We wrote to the Minister to raise several significant human rights issues in respect of the Bill: a) ESA and work-related activities; b) Work for benefit; c) Work-related activities; d) Conditionality and drug and alcohol dependency; e) Contracting-out; and f) Personalisation, individual budgets and disabled people.

1.18 The first three of these concerns broadly overlap with the controversial issues raised in debate during the Bill's passage through the House of Commons. For the reasons set out below, we remain concerned that the proposals may be implemented in a way which could lead to a risk of incompatibility with Convention rights, namely the right to respect for private life in Article 8 ECHR (and possibly the right to be free from inhuman and degrading treatment in Article 3 ECHR) and the right to enjoy those Convention rights without unjustified discrimination (Article 14 in conjunction with Articles 8 and 3 ECHR).

1.19 Unfortunately, the information available about the operation of these provisions is limited to a skeleton Bill. As is the practice with social security legislation, many relevant details are to be provided in regulations. We asked the Minister for draft regulations and for further information in respect of the Government's plans. The Minister has explained that the Government has not yet completed all of its consultation in respect of some of its proposals and in any event, a number of these proposals will be subject to pilot programmes:

    Any regulations drafted now will not necessarily reflect the circumstances approaching the implementation date and therefore may not be representative of the final regulations.[34]

1.20 The Government has produced an 'extended' or 'detailed' delegated powers memorandum, which is intended to give "an indication as to how" the Government anticipates using the regulation-making powers in the Bill. [35]

1.21 While the detailed delegated powers memorandum provided by the Government aids scrutiny of the proposals in the Bill, it is difficult to scrutinise proposed safeguards for their impact on individual human rights on this basis. We reiterate our previous recommendation that where safeguards are relevant to the Government's view on human rights compatibility, those safeguards should be provided on the face of the Bill. Where the Government 's view on compatibility relies on safeguards to be provided in secondary legislation, we recommend that draft Regulations are published together with the Bill. At the very least, the Government should describe in the explanatory material accompanying the Bill the safeguards it proposes to provide.

1.22 We remain concerned that the implementation of these proposals in a way which respects individual rights will depend largely on their day to day implementation in a manner which is neither arbitrary nor discriminatory and which does not result in any person being incapable of securing an adequate standard of living. While a number of the safeguards identified by the Government may lead to a human rights compatible approach, the effectiveness of these safeguards will ultimately be determined by the ability of individual staff members to implement them. We welcome the Government's recognition that, at least in respect of ESA, the work of Personal Advisers will be critical. The role of Job Centre staff and other service providers will be central to the operation of welfare services in a way which respects the rights of claimants. We consider that appropriate training and guidance will be essential and welcome the Government's commitment to provide this to both Job Centre Plus staff and others.

1.23 Although the welfare reform provisions in the Bill may be capable of being operated in a way which is compatible with individual rights, we remain concerned that without adequate training and guidance for service providers and Job Centre Plus staff, risks may arise in individual cases. Although we have highlighted some of the circumstances where we consider that the proposals present a significant risk of incompatibility, below, it is difficult to assess how the new system will operate in practice. In their General Comment on the right to social security, the UN Committee on the ICESCR has called on States to keep their welfare legislation, strategies and policies under review to ensure that they remain consistent with the requirements of the Covenant.[36] We recommend that the Government should keep the new reformed scheme of welfare benefits under review and should report to Parliament on the operation of the Welfare Reform Act 2007 and any reforms made as a result of this Bill before the introduction of any further welfare reform is considered. This review should include an assessment of the compatibility of the scheme with the human rights standards set out above, including the effectiveness of any relevant safeguards.


1.24 In our report on the Bill which became the Welfare Reform Act 2007, we considered that making receipt of ESA (which replaced Incapacity Benefit) conditional on requirements such as attendance at "work-related health assessments", "work-related interviews" and work-related activity did not pose a significant risk of incompatibility with either Article 8 ECHR or Article 1, Protocol 1. Our conclusion was based on safeguards proposed by the Government being in place and being operated in a consistent manner.[37] ESA has been available to new claimants since October 2008. We wrote to the Minister to ask for information on the operation of the safeguards which had been proposed. The Minister told us that it was too early to have any conclusive evidence on how the safeguards were operating, but that no complaints had been made. We received some limited evidence on the operation of these proposals which suggested that the administration of ESA was having a negative impact on some vulnerable groups particularly those with mental health problems.[38] A Senior Welfare Rights Adviser from Wolverhampton City Council told us that the administration of the scheme by Job Centre staff was often ignorant of the needs of people receiving medical care and support in the community and could be confusing and dangerous for claimants:

    [M]any of our service users who have a severe and enduring mental illness will be put in the untenable position of … "either I do what the Job Centre Adviser tells me and keep my benefit, or I do what my consultant psychiatrist tells me and risk losing my benefit".

    In my experience DWP/Job Centre Plus policy makers routinely fail to appreciate both the numbers and severity of illness of those people with severe and enduring mental illness who are living in the community with support from Community Mental Health Teams. [39]

1.25 The CAB consider that sanctions in relation to JSA are currently administered in a way which does not take into account individual claimants with mental health problems or learning disabilities. They consider that further conditionality in respect of JSA and ESA may exacerbate these problems:

    Government indicates that sanctions are a last resort, but CAB advisers report seeing clients who have been sanctioned several times. They are often vulnerable clients with learning disabilities who have failed to understand what is required of them or who haven't attended courses or applied for jobs because the options have been inappropriate to their disabilities or levels of literacy. Without proper probing of claimants' failure to attend and without sufficient Disability Employment Advisers, there is a serious risk that vulnerable claimants will be unfairly and inappropriately sanctioned.[40]

1.26 The reforms introduced by the Welfare Reform Act 2007 have been in force for a very short period of time. Although we agree that there has been inadequate time for an assessment of the safeguards in place, we are concerned that witnesses have told us that certain vulnerable groups, and in particular, those with mental health problems or learning disabilities, are disadvantaged by the administration of the scheme. We are concerned that the Minister has not provided us with any information on how the Government intends to monitor the effectiveness of existing safeguards. Complaints should not be the Government's only source of information about the administration of ESA, a benefit which is targeted at individuals with a spectrum of health difficulties.

1.27 The Welfare Reform Act 2007 introduced certain conditionality requirements for people receiving ESA and requiring claimants to complete work-related activities. The Bill proposes to amend that Act in order to create powers to direct ESA claimants to undertake specified activities. The Bill expressly provides that any direction must be reasonable "having regard to the person's circumstances". It is unclear whether advisers will have the tools necessary to assess an individual's circumstances effectively enough to know when a particular activity is appropriate or not. If work-related requirements place an onerous burden on individuals who are not able to meet them as a result of their mental or physical disabilities, or which may exacerbate their health difficulties, they may lead to an increased risk of a breach of that individual's right to respect for their private life, and peaceful enjoyment of their possessions, without discrimination (Article 14 in conjunction with Article 8 and Article 1 Protocol 1 ECHR). Individuals and groups representing claimants and particularly vulnerable claimants expressed concern about individuals being compelled to undertake activities that were not suitable, subject to the threat of sanctions during the passage of the Welfare Reform Act 2007. Mind has expressed similar concerns about these provisions:

    The Bill will allow Personal Advisers to decide the appropriate activity a claimant should undertake. It is wholly inappropriate for this power to be used to require a claimant to access healthcare provision, take medication and/or access psychological therapies. To do so would blur the boundaries between health provision and social control. [41]

1.28 We asked the Minister why these new powers were considered necessary, given the limited period of time during which the Welfare Reform Act 2007 has been in force. We also asked for further information on the Government's view that these provisions would be administered in a way which was compatible with the right to respect for private life and which would not discriminate on the basis of disability. The Minister explained that the Government considered that these additional powers would give advisers "the tools to ensure that no one is written off", but did not explain why these new powers were needed in addition to those in the Welfare Reform Act 2007. The Government accepts that these provisions may engage Article 8 and Article 14 ECHR, but believes that there is no increased risk of any breach of Convention rights as a result of enabling advisers to direct an individual to undertake a work-related activity subject to sanction:

    This is because we will apply a range of safeguards to ensure that vulnerable claimants are not directed into inappropriate activities, or sanctioned where they have good cause for a failure to comply with any requirements placed on them.[42]

1.29 We welcome the Minister's reassurance that any direction to ESA claimants to undertake a specific work-related activity will be a last resort and that no direction will be given which is not reasonable having regard to that person's circumstances. We also welcome the Minister's reassurance that further safeguards will be incorporated in secondary legislation, including that an individual's circumstances will include any relevant medical circumstances. We also welcome the Government undertaking that advisers will be provided with detailed guidance on what to take into account when directing an individual into a specific activity. The Minister has told us that the Government will review the training and support provided for advisors in the light of these proposed reforms. Despite the Minister's reassurances, we remain concerned that the proposal to allow Personal Advisors to direct ESA claimants to undertake specific work-related activities may result in an increased risk that ESA could be administered in a way which could lead to a breach of Convention rights in individual cases. We are concerned by evidence which suggests that vulnerable groups, and particularly those with mental health problems and learning disabilities, are disadvantaged rather than supported by conditionality. While the Minister correctly identifies that the right to appeal a direction will be a valuable safeguard, this will not help any claimant who does not clearly understand why a direction has been given and what the implications of failure to comply will be. We recommend that any training and guidance should expressly address how to identify and engage with people with mental health problems and learning disabilities. This training and guidance should encourage staff to engage proactively with supporters, family and other professionals where necessary, appropriate and consistent with the claimant's right to respect for private life. Any training and guidance should be prepared in consultation with disabled people and service users groups.


1.30 The Bill will enable the Secretary of State (and the relevant Scottish or Welsh Ministers in Scotland or Wales) to make regulations requiring an individual to participate in work or "work-related activity" as a condition of continuing to receive benefit. The Government intends to pilot requirements for those who have been on JSA for longer than 2 years, to participate in full time work experience for a specified period. The Explanatory Notes explain that these proposals may engage the right to be free from forced or compulsory labour (as guaranteed by Article 4(2) ECHR); the right to be free from inhuman or degrading treatment (as guaranteed by Article 3 ECHR); the right to peaceful enjoyment of possessions (Article 1, Protocol 1 ECHR); the right to respect for private and family life (Article 8 ECHR) and the right to a fair hearing by an independent and impartial tribunal (Article 6 ECHR).

1.31 We agree that Article 4 ECHR does not preclude individual member states setting conditionality requirements in respect of work, refusal of work offers and continuing receipt of employment benefit. In our view, it is unlikely that a requirement to participate in work or work-related activity of the kind proposed would involve the type or severity of treatment likely to engage Article 3 ECHR. It is important in this connection that this requirement will only apply to JSA claimants, who must satisfy the usual job seekers' criteria. "Work for your benefit" will not be rolled out in respect of those who are not capable of work, including people with disabilities who are claiming Employment and Support Allowance (ESA).

1.32 In respect of the right to peaceful enjoyment of possessions, the Explanatory Notes explain that the Government "considers that these provisions are in the public interest and that they strike a fair balance between the interests of individuals and the interests of the community". They stress that two safeguards exist: (a) that someone's benefit will only be withdrawn when they are "judged not to have good cause for failing to comply with requirements" and (b) the Secretary of State may make provision for hardship payments to be made. These are the same safeguards which the Government explains will ensure that an individual claimant will never be treated in a way which breaches their right to respect for private and family life (Article 8 ECHR).

1.33 The detail of this new scheme will be elaborated in secondary legislation. Much of the detail is unavailable and the safeguards are only provided for in basic, enabling provisions. For example, the Bill enables the Secretary of State to set up a hardship fund, but does not require him to do so.[43] It allows the Secretary of State to set the conditions for hardship payments, and to set the relevant amounts, but does not provide any further information.

1.34 The Bill makes provision for the Secretary of State to allow for the payment of incidental expenses, but does not make clear whether this would include incidental expenses paid by the claimant to enable them to participate in the work or work-based activity (for example, travel costs). [44]

1.35 We welcome the decision of the Government to provide more information on each of these proposed safeguards in the detailed delegated powers memorandum. For example, the Government intends to model its hardship provisions on existing hardship provisions, which would exclude all but those in a 'vulnerable group'.[45] It explains that the pilot regulations will contain certain circumstances which will provide an automatic good cause for failure to participate and will provide Job Centre Plus decision makers with flexibility to take decisions in relation to each individual's circumstances.[46]

1.36 We consider that these proposals could all provide valuable safeguards, but that much will depend on how these proposals will work in practice. Some NGOs, individuals and Members of the House of Commons have argued the Government has ignored its own evidence that these proposals will not encourage people back into work or that in any event, these proposals are inappropriate for current economic conditions.[47] We consider that changes to welfare support designed to meet the right to social security and the right to an adequate standard of living should be supported by evidence. We are concerned by the suggestions that the Government's proposals are not supported by their own comparative research. We welcome the Government's decision to pilot its "Work for your benefit" programme before its proposals are rolled out on a wider scale. We recommend that the pilots should monitor the implications of the proposals for individual rights, including the right to respect for an adequate standard of living, the right to respect for private and family life and the right to enjoyment of those rights without discrimination.


1.37 The Bill also enables the Secretary of State to make regulations requiring other benefits claimants and their partners to participate in "work-related activity" and circumscribing the circumstances when couple claimants can receive ESA as opposed to JSA. One of the principal points of debate in the House of Commons related to the implications of work-related activity and other conditionality for parents.[48] Until recently, lone parents with children under 16 could claim income support. In November 2008, this scheme changed to require all lone parents with a youngest child over 12 to claim JSA instead. This means they must be 'available for and actively seeking work' to receive support. The Government intends that by 2010, all claimant parents with a youngest child over seven must be available for and actively seeking work. The Government intends this Bill to provide a framework to allow parents claiming income support and income based JSA or ESA to be required to participate in work-related activity designed to prepare them for work, subject to sanctions for failure to participate.

1.38 The detailed delegated powers memorandum explains that the Government intends that income-related support or ESA should continue to be available for couples in a household where there is a child under seven. It also makes clear that it is the Government's intention that after 2010, lone parents with children under seven will also continue to receive income support.

1.39 Schedule 1 makes provision for parents of children under seven to be subject to some conditions to prepare them for work or work-related activities. It makes clear that only parents with children younger than one year old will be entirely exempt from preparation for work. These provisions are intended to be piloted in Pathfinder districts. Parents with a child aged one or two will be required to attend a work focused interview and agree an action plan, but will not be required to undertake any other activities. Parents with a child aged three to six will be required to "work closely with their adviser and design their own routeway back to work". This will include requirements to attend work focused interviews, agree an action plan and undertake specific work related activity.[49]

1.40 A significant time was spent in the House of Commons debating the impact of these proposals and amendments were proposed and rejected which would have increased the age when lone parents would be required to prepare for work from one to three or five years old. NGOs, individuals and members have argued that these proposals will not encourage people back into work or work-related activity, but will instead unfairly sanction parents who have no access to appropriate, accessible and affordable childcare.[50]

1.41 During Report Stage, the Minister explained that the purpose of these proposals was to support parents back into work and to reduce child poverty.[51] While we commend these aims, we consider that the administration of welfare benefits in respect of lone parents with children must take into account the welfare of the children concerned and the fact that the majority of lone parents are women. We consider that if these proposals were administered in a manner which failed to adequately take into account the need for adequate, accessible and affordable childcare, they could have a disproportionate and potentially discriminatory impact on lone mothers. We welcome the Minister's reassurance that no parents on JSA will be sanctioned if the fail to participate in "work for your benefit" because they cannot access appropriate childcare and that the absence of childcare will be taken into account when discussing the details of other work related activities for parents.

1.42 These provisions are subject to the same concerns set out above. There is a lack of detail in the Bill itself to enable the Committee to assess whether the safeguards proposed by the Government are really adequate to avoid a risk that individuals will face hardship amounting to a breach of the right to respect for private and family life or even, in extreme cases, inhuman and degrading treatment. The detailed delegated powers memorandum explains that the Government will not extend these proposals until after the evaluation of their operation in the Pathfinders districts. We recommend that these proposals are closely evaluated for their impact on lone parents and particularly any disproportionate impact on women and parents who may not be able to access appropriate and affordable childcare.


1.43 The Bill creates the power for regulations to impose additional requirements on ESA and JSA claimants where "they are dependent on, or have a propensity to misuse any drug" and "such dependency or propensity is a factor affecting their prospects of obtaining or remaining in work".[52] These provisions may also be extended to those dependent on alcohol or with a propensity to similar dependency. The Government has very recently confirmed its intention to explore the extension of this regime to alcohol dependency.[53] These regulations may require a claimant to:

  • attend an interview to determine whether he or she is dependent on or has a propensity to misuse any drug and if so, whether this may be a factor in affecting his or her work prospects;
  • take part in an assessment by a qualified person to ascertain dependency and its effects;
  • take a drug test to help determine dependency.

1.44 Failure to participate in any of these steps may lead to benefit sanctions, including the withdrawal of JSA or the reduction of ESA for up to six months. If drug dependency or propensity to misuse drugs, which affects the claimant's ability to work is established, the claimant may be required to submit to treatment, to participate in further interviews or to take other such steps as may be specified, subject to benefit sanctions for failure to participate without good cause.

1.45 These regulations may also make provision for or in connection with authorising the supply of information held by the police, the probation service or any other prescribed person to the Secretary of State. In effect, these provisions would permit the Secretary of State to enable Job Centre Plus or other benefits staff to gather information about an individual's drug use or treatment, or the effect that this could have on their ability to work, from police, the probation service or any other person. This third category is particularly broad and does not provide any exclusion that would prevent benefits staff from seeking information from medical professionals or others involved in a claimant's ongoing treatment. Regulations may also empower individuals receiving information about an individual's drug dependency to share it with others (although information provided for the purposes of a benefits claim would not be admissible for the purposes of supporting a criminal prosecution).

1.46 Article 8 ECHR provides protection for the individual against compulsory medical treatment and provides guarantees in respect of the disclosure of medical information.[54] It is of particular concern that the Explanatory Notes provide very little explanation of the Government's view that the steps authorised by the proposed regulations will be justified and proportionate to a legitimate aim. In particular, the Government has provided no evidence to support its assertion that benefit compulsion will lead more claimants suffering from drug dependency into treatment. This is in contrast with a number of NGOs that have asserted that these proposals are more likely to force drug dependant claimants into destitution.[55] It is particularly worrying that the Explanatory Notes do not specify any of the safeguards that the Government considers will make these provisions compliant with Article 8 ECHR:

    The Government will put safeguards in place so that [the regulations] will not affect a person's private life and therefore does not contravene Article 8. The Government is satisfied that Article 8 rights are safeguarded, though it takes the view that if it were found that there was an interference it could be justified on the grounds that it was done in accordance with the law and necessary in a democratic society in pursuance of the legitimate aim of safeguarding the economic well being of the country.[56]

Information provisions are considered to be compatible for similar reasons.

1.47 We accept that the protection of public funds by excluding "undeserving" or ineligible claimants from social protection schemes may be a legitimate aim for the purposes of Article 8(2) ECHR. However, where the Government proposes to authorise an interference for this purpose, it must provide justification and appropriate evidence that the interference is necessary and proportionate to meet that aim. This should include evidence of a rational connection between the interference and the aim and that the interference is not disproportionate to the steps taken towards that aim. We asked the Minister for further information in relation to the Government's views on compatibility. We are concerned that the Minister's evidence focused principally on the dangers posed by drugs, rather than the ability of these proposals to reduce drug dependency and encourage people back into work or other economic activity. The Minister states that "there is international evidence to support the link between compulsion and increased engagement with drug treatment", but provides no further information. This is in direct contrast with the evidence of the Royal College of Psychiatrists, which said:

    The College faculty of Addictions has expressed considerable disquiet at the conditionality provisions while welcoming the attempt to assist drug users with their addiction. The issues affecting people with addictions will not improve treatment compliance or the chances that people will obtain and remain in work. On the contrary, they may drive people deeper into poverty and marginalisation. Being coercive in nature the provisions have the potential to undermine the therapeutic relationship between clinician and client.[57]

1.48 We welcome the limitations in the Bill requiring the Secretary of State to report to Parliament before these provisions are extended beyond a pilot programme. In our view, the Government has not provided evidence to support its view that the proposed interference with individual rights is necessary and bears a rational connection to the purpose which it proposes to achieve. On the contrary, we are concerned by the significant evidence of the Royal College of Psychiatrists that these proposals may be counter-productive and could drive some drug users further into dependency and destitution. We are not persuaded that evidence to support the Government's position should be sought during a pilot programme which could pose a significant risk to individual privacy rights. We are particularly concerned that these proposals - and many potentially significant safeguards - are to be contained in secondary legislation. Although the delegated powers memorandum provides some further indication of the safeguards proposed, it lacks the detail necessary to ensure us to ascertain how these proposals will operate in practice. We recommend that these proposals are deleted from the Bill, unless clear evidence is provided to support the Government's view that the interference proposed with the right to respect for private life is necessary and will be accompanied by appropriate safeguards. In any event, we consider that the Bill should be amended to remove (a) the potential for drug testing subject to be undertaken subject to sanction; (b) the power to direct individuals to undergo specific treatment subject to sanction and (c) the proposals in the Bill for extensive information sharing regulations, particularly the proposal for Job Centre Plus officials to pass information gathered under these provisions onto third parties. We propose amendments to give effect to these recommendations, below.

Page 14, line 17, leave out Clause 9

Page 69, line 21, leave out Schedule 3

Page 79, line 9, leave out paragraph 3

Page 80, line 29, leave out paragraph 5

Page 81, line 11, leave out paragraph 6 and insert:

"Regulations may make provision for or in connection with a rehabilitation plan to address a person's dependency on, or propensity to misuse, any drug."

Page 81, line 17, leave out 'to be imposed on a person'

Page 83, line 17, line 5, at end, insert:

"(-) Regulations under paragraph 6 may not impose a sanction in respect of failure to comply with treatment unless recommended by a person having the necessary qualifications or experience and consented to by the person to be subject to the treatment."


1.49 Part 2 of the Bill makes provision for the introduction of pilots to allow direct payments to be paid to people with disabilities in relation to certain support services, including services (a) for the provision of further education, (b) for facilitating the undertaking of further education or higher education; (c) training; (d) support for the purposes of facilitating employment; (f) to enable independent living at home and (g) to enable individuals to overcome barriers to participation (Clauses 28 - 39). These proposals are in addition to earlier pilots of individual budgets for community care, which were previously conducted by the Department of Health. In so far as these proposals are designed to support people with disabilities to greater independence and control and more active participation in the workplace, we welcome them.

1.50 However, we have long called for clarity in respect of the meaning of "public authority" in Section 6 of the Human Rights Act and we are concerned that the Government does not have a clear view on how the protection of the HRA 1998 will operate in respect of public services provided by direct payment.[58] Section 6 requires public authorities to act in a way which is compatible with the Convention rights set out in the Schedule to the Act. The term "public authority" includes "any person certain of whose functions are functions of a public nature."[59] What constitutes a "function of a public nature" is not further defined in the Human Rights Act. In our second report on Meaning of Public Authority, we recommended that:

    … the Government should be prepared to acknowledge that the position in law is currently uncertain. This uncertainty should inform parliamentary debate on whether delegation or contracting out is an appropriate means of dealing with the provision of relevant services, and whether it is desirable to make clear on the face of a Bill that a body is a public authority for the purposes of the HRA.[60]

1.51 A series of court cases, culminating in the judgment by the Law Lords in YL v Birmingham City Council and others[61] in June 2007, has subsequently narrowed what was widely understood to be the scope of the Human Rights Act. By a majority of 3 to 2, the Law Lords ruled that the person concerned could not bring a claim against her private sector care home under the HRA, in relation to the infringement of her right to respect for her private life and home under Article 8 ECHR. Her claim lay solely against the local authority which funded her care. The Government introduced an amendment to the Health and Social Care Bill in the last Session to ensure that publicly funded residents in private sector care homes come within the ambit of the Human Rights Act: but the position in relation to other contracted-out services is not clear. A Government consultation paper on the subject has been promised but has not yet appeared. We have recently criticised the Government's failure to deal with this issue in its Green Paper Rights and Responsibilities: developing our constitutional framework.[62]

1.52 Services purchased through a direct payment may engage an individual in a position of trust and in activities in a person's home and private life. They may be discharging functions which would otherwise be the responsibility of a government body or agency, paid for by public funds. We wrote to the Minister to ask whether the Government considers that private providers of services funded through direct payments are to be treated as public authorities under the HRA and if it does, why it did not make this clear on the face of the Bill. If it does not consider that such providers should be treated as functional public authorities, we also asked the Minister to explain how (and against whom) it proposes that individuals will be able to seek redress for breaches of their human rights.

1.53 The Minister explained:

    The relevant services which might be included are deliverable under a variety of statutory provisions with different statutory outcomes. As a result, there is potential for the powers in the Bill to be used to enable disabled people to use direct payments to meet a broad range of needs according to statutory outcomes. The expectation is that, while some of the purchased services will be public functions others, are likely to be essentially private in nature.

    The question of whether a body falls within s.6(3)(b) HRA will depend on the nature of the function that they are performing. Clearly it will not be possible to address this issue until the Government has decided the issue of to which services the right to direct payment will attach. Until the Government has made a decision as to which relevant services are to be included in the right to control and which services might be purchased by disabled persons as "equivalent services", it is not possible to say with certainty that all private providers will necessarily be public authorities for the purposes of section 6 of the Human Rights Act. It would be inappropriate to do so, on the face of the Bill. We do not wish to be unduly restrictive at this point, given that the aim of the provisions is to be as flexible and helpful as possible. However, the Government remains fully conscious of the need to protect individual human rights in any particular circumstances.[63]

1.54 We welcome the Minister's frank acknowledgement that the Government has not yet decided which services may be purchased or facilitated by direct payments. We also welcome the Government's acknowledgement that in its view, in some circumstances, enabling the use of direct payments may limit an individual's capacity to seek redress under the HRA 1998. If a service is provided by a public authority, that service must be provided in a way which is compatible with Convention rights. If it is purchased privately, albeit using public money, the claimant will need to show that the provider was performing a public function in order for the HRA 1998 to apply. The Minister explained the Government's view that in some circumstances, the HRA will not apply. This is in direct contrast to the Government's view that direct payments for services which would otherwise be provided by the NHS would be subject to the application of the HRA 1998. We regret the ongoing confusion about the scope of the meaning of public authority for the purposes of the HRA 1998. We welcome the Government's undertaking to ensure that in making "right to control" regulations the Government will ensure that the human rights of individual disabled people will be protected and that they will have a clear right to redress if the service purchased is properly a public function. However, we consider that, for the avoidance of doubt, the Bill should be amended to make clear that any service which would otherwise have been provided by the Secretary of State or another public authority shall be considered a public function for the purposes of HRA 1998. In the absence of a wider public consultation on the meaning of public authority for the purposes of HRA 1998, we consider that this will provide an appropriate opportunity for a debate on the implications of the duty to act compatibly with Convention rights for private providers providing services purchased using direct payments. We propose a simple amendment for the purposes of debate, below.

Page 41, line 20, insert the following new clause:

Relevant services and the application of the Human Rights Act 1998 (c.42)

"Where any relevant service would otherwise be provided by the appropriate authority or the providing authority, or on their behalf, pursuant to any enactment or through financial assistance provided from public funds, the provision of that service or any provision made to secure that service shall be a public function for the purposes of Section 6 of the Human Rights Act 1998 (c. 42)."


1.55 This part of the Bill provides broad powers for contracting out functions which would otherwise be exercised by Job Centre Plus or other benefits officials, including in respect of the setting of appropriate work-related activity and determining what might be reasonable in an individual set of circumstances.[64] The Government intends 'work for benefit' programmes to be operated principally through contracts with third sector and commercial providers. The Committee has previously asked the Government whether it was appropriate for the Government to contract out this type of function on the basis that the privately owned body exercising the functions may not be considered to be performing a public function and therefore not subject to the duty to comply with Convention rights (Section 6 HRA 1998). In its response to correspondence on similar powers in the Bill which became the Welfare Reform Act 2007, the Minister explained that it was the Government's view that the Secretary of State would retain responsibility for Convention rights, but would ensure that any contract made would "take account of" the Secretary of State's responsibilities under the HRA 1998. The Committee reported that this approach to contracting was unsatisfactory.[65]

1.56 We asked the Minister whether providers of services contracted out under these proposals would be performing public functions. As explained above, when performing public functions, a person or organisation is considered a public authority for the purposes of the HRA 1998 and individuals will be able to bring proceedings against them for any breach of Convention rights. The Minister told us that the functions referred to in Clause 2 of the Bill "are clearly ones of a public nature". However, he added that:

    The Government considers that authorised person exercising functions pursuant to Section 2G(1) and (2) would be regarded as functional public authorities. Section 2G(7) provides (subject to exceptions set out in subsection (8)) for acts done by authorised persons to be treated as done by the Secretary of State. So, for example, where it was alleged that a contractor carrying out a work-focused interview had contravened a benefit claimant's Article 8 rights, that person could bring proceedings against the Secretary of State.[66]

1.57 We welcome the reassurance of the Government that contractors providing services under the proposals in the Bill would be functional public authorities for the purposes of the HRA 1998. We are concerned however that the Minister has suggested that the Bill includes a saving clause that will ensure that individuals may only bring claims under the HRA 1998 against the Secretary of State. We are not certain whether it is the Government's view that individuals would be able to bring a claim against both the service provider and the Secretary of State or whether the Secretary of State would step into the shoes of the provider for the purposes of any claim under the HRA 1998. We consider that any provision which proposes to alter the ordinary application of the HRA 1998 should be accompanied by clear explanatory notes and appropriate justification. We recommend that the Government provides a further explanation of its view. We consider that where individual contractors are providing services which amount to a public function for the purposes of the HRA 1998, they should be subject to Section 6 HRA 1998 (and the duty to act in a Convention compatible way) and individuals should be able to exercise each of the remedies in the HRA 1998 against them directly, as Parliament intended. If it is proposed that a savings clause should divert claims to the Secretary of State, the Secretary of State must assume liability as if 'stepping into the shoes' of the provider. We do not consider that it would be appropriate for the Secretary of State to rely on a lack of knowledge of the conduct of the provider or that the conduct of the provider was incompatible with the terms of the service contract in order to deprive an individual service user of an effective remedy for a breach of their Convention rights. We suggest the following amendment.

Page 8, Line 25, at end insert the following subsection:

"()Anything done or omitted to be done by or in relation to an authorised person (or an employee of that person) in, or in connection with, the exercise or purported exercise of the function concerned is to be treated as the exercise of a public function for the purposes of the Human Rights Act 1998 (c.42)."

1.58 The British Humanist Association told us that it was concerned that services provided by religious groups subject to contract could take place in a discriminatory way. In a recent speech to the Evangelical Alliance, the Secretary of State for Communities and Local Government launched a 'conversation' about a charter for excellence for faith groups providing public services, including the type of services which might be contracted out under the proposals in the Bill. She said:

    The charter would mean that faith groups who are paid public money to provide services promising to provide those services to everyone, regardless of their background. And promising not to use public money to proselytise.[67]

1.59 We asked the Minister to explain how the Government intended to ensure that contractors avoided discrimination in the administration of services. The Minister explained that any contractors would be subject to existing anti-discrimination law and that additional contract compliance measures would be taken to prevent discrimination. The Minister explained that DWP would carry forward existing best practice and that the Secretary of State could terminate the contract of anyone failing to comply with these contractual obligations. The BHA told us that neither of these arguments met its concerns:

    We would like to draw the Committee's attention to the fact that religious organisations have exemptions from equality legislation which allow them to discriminate in their employment practices and in the way they provide services in some circumstances, on the grounds of religion or belief or of sexual orientation, even when contracting to provide welfare or other public services.

    It should be noted that we see contracts - however tight the stipulations are - as a poor second best to legislation for protecting employees and service users from discrimination, for promoting equality, and for protecting human rights - all of which may be especially necessary should the contractor be a religious organisation.[68]

1.60 We most recently considered the right to respect for religion and belief and the provision of public services in our report on the Health Bill. We confirmed our view that the right to respect for religion and belief did not permit public employees to discriminate in the provision of public services, despite specific statutory provisions for conscientious objection in some very limited circumstances.[69] In our report on the Sexual Orientation Regulations, we stressed our view that any exemption from prohibitions against discrimination in public services to permit discrimination by religious organisations would risk incompatibility with the right to enjoy respect for private life without discrimination. In any event, such an exemption would not be required by the right to respect for religion or belief as it would not protect belief, but a particular manifestation of that belief.[70]

1.61 We welcome the reassurance of the Secretary of State for Communities and Local Government that faith groups should not be permitted to discriminate in the provision of public services provided under contract or to use public money to proselytise.[71] We consider that this is consistent with the acceptance of the Government that providers of services contracted out under the proposals in the Bill will be functional public authorities under a duty to act compatibly with Convention rights protected by the HRA 1998. We recommend that any guidance to service providers provide clear direction on discrimination and particular guidance on religion and belief in the provision of public services.

Powers of the Child Maintenance Enforcement Commission (CMEC)

1.62 Clause 42 of the bill gives the CMEC the power to make an administrative decision to disqualify a non-resident parent from holding a travel authorisation or driving licence if he fails to pay child maintenance due under the Child Support Act 1991. We are not aware of any similar administrative powers to suspend driving licences or passports for the purposes of sanctions, unrelated to administration by the DVLA or the Passport Agency.

1.63 The Government accepts that these provisions may engage the right to a fair hearing, the right to respect for private life and the property rights of non-paying parents. The Explanatory Notes explain:

    In so far as Article 6 is engaged, the Government is satisfied that there is no breach. There will be a full right of appeal to a magistrates court or sheriff, and the order will be suspended until the outcome of the appeal is known.[72]

1.64 The Child Maintenance and Other Payments Act 2008 gives CMEC the power to apply for these disqualification orders to a magistrates court. These powers are not yet in force. The Government originally intended CMEC to exercise these powers administratively, subject to a right of appeal, and proposed this structure in the Bill which became the Child Maintenance and Other Payments Act 2008. The House of Lords Constitution Committee considered that the power to remove passports from UK citizens should be subject to direct judicial oversight.[73] An amendment suggested by the Chair of that Committee led to the Bill being changed to remove the right of CMEC directly to impose disqualification orders.[74]

1.65 Resolution and Families Need Fathers have raised some concerns about the change now proposed in the current Bill:

    Fundamentally, they conflict with the citizen's direct access to the courts when the state could be seen to be acting in a way clearly against the person's interests and their right to a fair trial.

    If the Commission make these Orders administratively, there are no safeguards to have the matter properly considered.  If the Orders are made administratively, they are effectively being made by Civil Servants, who may be quite junior in position and, again, there are no 'checks and balances'.  The Bill attempts to deal with this by providing that the seizure will only take place by an administrative decision if the individual decides not to appeal to the court. But that is well short of direct and full access to the court. Many of the individuals concerned may be poorly equipped to take sound advice from the legal profession or elsewhere when confronted with the threat to confiscate any of these documents.[75]

1.66 The common law right to a fair hearing may require that an individual is invited to make representations before an order is made and that they are given adequate notice of the intention of CMEC to make a disqualification order. The Bill only provides for the non-resident parent to be given notice of the order when it is made. In addition, in light of the importance of the right to appeal, we consider that this notice should specifically inform individuals of their right to appeal and that the order will not come into force until the appeal is exhausted.

1.67 Resolution and Families Need Fathers told us that administrative failures could undermine the fairness of any process operated by CMEC:

    [T]he provisions depend crucially on CMEC's ability to communicate effectively with the persons whose licence or documents they are confiscating…We understand an individual will have the opportunity to submit an appeal, but this is effectively reversing the burden of proof to the paying party to demonstrate why the Order should not remain in place.[76]

1.68 We wrote to the Minister to raise these concerns and to ask for further information on the Government's view that these proposals will be compatible with the right to a fair hearing, as guaranteed by the common law and Article 6(1) ECHR. The Minister told us that a non-resident parent will be informed in writing that the Commission is considering making such an order and will be given the opportunity to make representations, principally in writing or over the telephone. CMEC will take a number of factors into account in determining whether or not to make an order. In determining whether a non-resident parent has "wilfully refused or culpably neglected to pay maintenance", CMEC will consider:

  • the history of the case, including any previous payment patterns; and
  • whether county court enforcement mechanisms, including the use of bailiffs, third party debt orders or interim charging orders have been attempted or ruled inappropriate.

In addition, before making an order CMEC will consider:

  • the welfare of any child affected by the decision (including the children of the family of the non-resident parent); and
  • representations made by the non-resident parent, including in respect of the impact of the order on his or her capacity to earn a living.

1.69 The Minister told us that guidance would be developed and communicated to staff, prior to these provisions taking effect, on the process which staff should follow when making an order. Unfortunately, there is no provision on the face of the Bill for this process to be followed, nor is there any statutory requirement for adequate guidance to be issued to staff. In addition, CMEC is empowered to contract out many of its functions. We expressed our concern in our report on the Bill which became the Child Maintenance and Enforcment Act 2008, that these contractors may not be subject to the duty to act compatibly with Convention rights. These sanctions could, in principle, be imposed by a private contractor, subject only to appeal and with limited rights to protection for Convention rights. In light of the potential impact of these provisions, we are concerned that there is no clear statutory process which must be followed before an order is made either by CMEC or by a third party contractor. We consider that, should the Government proceed with these provisions, the Bill should be amended to clarify the procedure which should be followed by CMEC when considering an order which could remove a person's driving licence or passport, including the requirement to give the non-resident parent notice of the intention to consider an order and their right to make representations, including in respect of the appropriateness of other sanctions and the effect of any order on their capacity to earn a living. However, for the reasons which we set out below, we consider that in the absence of further explanation by the Government, these proposals should be deleted from the Bill.

1.70 We consider that these proposals engage the right to a fair hearing as protected by Article 6(1) ECHR. We accept the Government's view that there are a number of valuable safeguards provided by the potential for appeal to the Magistrates Court:

  • The Bill provides for a full right of appeal to an independent and impartial tribunal, the Magistrates Court;
  • This appeal will be a full reconsideration of the decision to impose an order to disqualify someone from driving or to remove their passport;
  • The only grounds that they will not be able to consider concern liability orders and the assessment of maintenance, which are subject to separate appeal mechanisms;
  • The order will not take effect until after the opportunity for appeal has expired or any appeal lodged has been determined.

1.71 The right to a fair hearing, as guaranteed by Article 6(1) ECHR guarantees the right to effective access to an independent and impartial tribunal. It is clear, in our view, that without access to a full, effective hearing by an independent and impartial tribunal, the imposition of an order by CMEC alone would be incompatible with the right to a fair hearing. CMEC is neither independent or impartial for the purposes of the ECHR or domestic common law.

1.72 The obligation to secure effective access may require the State to remove any barriers or deterrents to the exercise of a right to a hearing or it may require the State to provide support, including financial support, to facilitate access.[77] The Bill provides for CMEC to recover their costs when an order is affirmed or varied. This could mean that an individual could partially win at appeal, by having the order varied, but could not recover their costs. Under ordinary costs rules, an individual will generally recover any costs of an appeal if they are successful. In the case of a variation, where both parties' cases succeed "in part", the court generally retains discretion over how the costs burden should be distributed. The Minister told us that the Government did not agree that the proposals in the Bill relating to costs could undermine the value of an appeal to the non-resident parent. He explained that it was the Government's view that "any costs imposed will be at the discretion of the courts."

1.73 The Bill would requires costs to be awarded in favour of CMEC in any circumstances where the order is not revoked. Where an order is overturned on appeal, the court will have the discretion to award costs in favour of CMEC, if the court is satisfied that it would be reasonable to do so. We welcome the Minister's reassurance that the intention in the Bill is to make clear that courts will have the discretion to award costs against an appellant if he or she acts unreasonably. Unfortunately, we are concerned that the language in the Bill appears to suggest that in most circumstances CMEC should recover costs, even in circumstances where an appeal has changed the original order significantly. In any event, the requirement that an individual should meet the initial costs of an appeal in order to secure the right to a fair hearing in respect of a sanction represents a significant change from the current position. We are concerned that the costs provisions in the Bill create a significant disincentive to non-resident parents who might seek to appeal. We are concerned that this may create an unnecessary barrier to the right to a hearing by an independent and impartial tribunal, inconsistent with the requirements of Article 6 ECHR. We recommend that, if these proposals are not dropped, the Bill should be amended to ensure that the discretion to award costs in favour of either party remains with the court and that, generally, a non-resident parent will be able to recover their costs in respect of a successful appeal.

1.74 The Administrative Justice and Tribunals Council (AJTC) has expressed its concern about these proposals.[78] It calls for these proposals to be dropped or for an appeal to lie to the First-tier Tribunal rather than the magistrates courts:

    The dual effect of these provisions, therefore, is to downgrade the level of decision making in these cases, whilst at the same time providing an appeal mechanism which is less accessible than for other social security and child support cases. The AJTC is particularly concerned that decisions like these, which affect the fundamental liberties of individuals should not be taken by relatively junior administrators and would urge that responsibility for such matters should remain with the courts.

    Providing for a right of appeal in these cases to the courts creates inconsistency in the treatment of appeals between different classes of decisions of the CMEC. Moreover, the AJTC objects in principle to the introduction of an appeal right which creates a financial disincentive for anyone wishing to exercise their right. It is perhaps worth noting that around 45% of appeals against other child support agency to the First-tier Tribunal are overturned by tribunals, raising concerns about the standard of decision making at the agency.

1.75 The AJTC correctly identifies that the majority of appeals from decisions of CMEC will be to the First-tier Tribunal and that the tribunals system is designed to be accessible and affordable to appellants who will not incur costs at their hearings. However, at present, CMEC must apply to the magistrates for certain enforcement measures. These include orders in respect of committal, curfew, suspension of passports and driving licences. The Bill proposes that some of these powers should now be exercised administratively, subject to oversight of the magistrates. Different due process standards apply under Article 6 ECHR according to whether the decision in question relates to the determination of a "civil right or obligation" or a "criminal charge".

1.76 In our view, the decision to suspend a licence or passport would clearly involve the determination of a civil right or obligation, in so far as it would remove an otherwise lawfully obtained licence or travel document and would interfere with an individual's right to respect for private life and could interfere with his or her ability to work or conduct a business.

1.77 However, in cases involving the determination of a "criminal charge", the full protection of criminal due process protections will apply, including the presumption of innocence and the right to representation, if necessary through access to legal aid. The European Court of Human Rights has held that the higher standard of protection must apply in respect of committal hearings. In Benham v UK, the ECtHR determined that the power of the magistrates to commit someone to prison for "wilful refusal to pay or culpable neglect" in respect of liability order for community charges involved the determination of a criminal charge.[79] By this rationale, safeguards applicable to criminal proceedings must apply in respect of committal proceedings for non-payment of maintenance by a non-resident parent. We consider that the decision to require CMEC to apply to the magistrates court - which has relevant experience of enforcing criminal standards and penalties - for certain enforcement orders is consistent with this requirement. Although the ECtHR recognises that alternative administrative arrangements may be appropriate for the determination of some minor criminal charges, these arrangements are subject to close scrutiny, must be subject to a full, accessible appeal to an independent and impartial tribunal applying appropriate criminal safeguards and may only apply in respect of very minor offences and relatively minor penalties.[80]

1.78 Whether other enforcement proceedings should attract a higher criminal standard of protection is not clear. The ECtHR considers (a) the domestic status of proceedings, (b) the nature of the 'offence' (including whether the measures are applied generally or to a specific group, whether they are enforced by a public body, whether there is a "punitive" or "deterrent" element to the process and whether the imposition of any penalty involves the determination of culpability); and (c) the severity of the penalty. We consider that the imposition of a curfew on a non-resident parent could involve a "criminal charge" or would require similar safeguards to be in place.[81] Not least, the breach of a curfew order may lead to a custodial sentence.[82] We have previously expressed our concern in respect of the increasing use of previously criminal sanctions and powers in an administrative context. For the avoidance of doubt, in our view, CMEC or its contractors should never assume primary responsibility for enforcement through committal or curfew.

1.79 The treatment of disqualification orders is less straightforward. We note that:

  • CMEC will apply the same culpability test applied in Benham, although to a targeted group of individuals (defaulting non-resident parents); and
  • the White Paper which proposed these provisions made clear that their principal purpose was to "sanction" or punish defaulting parents.[83]

1.80 While the penalties imposed are not as restrictive as committal or curfew, they may have a significant impact on individuals, in particular where a licence or passport is necessary for the non-resident parent's work or business. In respect of travel, the right to leave and enter one's country of nationality is recognised in a number of international human rights instruments, including the Universal Declaration of Human Rights[84] and Article 2 of the Fourth Protocol of the ECHR (to which the UK is not a party). Against this background, it is likely that a high standard of scrutiny must be applied to any Order issued by CMEC in order to comply with the right to a fair hearing. In reconsidering whether the non-resident parent has "wilfully refused to pay" or is "culpably negligent", Article 6 may require that any doubt should lie with the non-resident parent. On appeal, the court may be required to treat the hearing as if it were an application by CMEC, requiring evidence the Order has been properly made. Against this background, we can see little value in the proposed changes to outweigh the potential for injustice in cases where sanctions are imposed administratively and non-resident parents are deterred from pursuing an appeal in light of the costs involved.

1.81 We note that the White Paper which originally proposed these changes indicated that in 2005-06, the Child Support Agency (CSA) prepared 1,007 cases for court, seeking either committal or an order in respect of a non-resident parent's driving licence. Of 577 cases which were heard by the court, 3 committal orders were made; 393 suspended committal orders; 3 cases resulted in driving disqualification orders and 36 in suspended orders. The White Paper accepted that these figures represented an improvement: the CSA had traditionally been slow to use enforcement powers. One of the purposes of reform is to send the message that sanctions will be imposed more frequently. We note that previously, the involvement of the court ensured that committal or disqualification was regularly suspended in its effect. While we recognise the legitimate policy aim of securing appropriate support for children by non-resident parents, it would be inappropriate to introduce new administrative sanctions with the principal goal of deterring individuals from pursuing a fair hearing to which they are lawfully entitled.

1.82 We recommend that the Government should clarify whether or not it considers that these proposals involve the determination of a civil obligation or a criminal charge for the purposes of Article 6 ECHR. In our view, the appeal proceedings must necessarily involve a higher degree of scrutiny, with the burden of proof on CMEC to justify the propriety of the disqualification order proposed. We consider that in practice, these hearings will vary little from the current proposal for an application by CMEC for an order. The proposal to introduce an administrative stage only reduces the likelihood that non-resident parents will, in practice, have the disqualification or suspension tested by an independent and impartial tribunal. We recommend that these proposals should be removed from the Bill.

Joint responsibility for birth registration

1.83 The Bill would establish new provisions to deal with birth registration. It would change current rules on birth registration to deal with registration of children born to parents who are not married to each other, or in a civil partnership. The new provisions would effectively create a presumption for joint registration of any birth, together with the names of both parents, subject to some exceptions. The mother would have a duty to register any birth within 42 days. Generally, she would be required to provide prescribed information to the registrar about the father. This obligation would not apply where the child has died, or in the case of still-birth, or where a man has already provided his details to the registrar and the mother acknowledges that this man is the father.[85]

1.84 The mother would not be under a duty to provide information where: i) the child has no father, as it has been born using donor sperm in a case where the HFEA does not recognise anyone as the father; ii) the child's father has died; iii) the mother does not know the identity of the father; iv) the mother does not know the whereabouts of the father; v) the father lacks mental capacity; vi) where the mother has reason to fear for her safety or that of her child if the father is contacted in relation to the registration of the birth and vii) in any other circumstances as may be prescribed.

1.85 Provision is made for a father to register his name against a birth, subject to later acknowledgement by the mother, either before or after the birth. Similar provision is made for a father to refuse to acknowledge parenthood. In both circumstances, a birth may need to be subject to sole registration, subject to further determination of paternity by a court.

1.86 Failure to comply with the relevant regulations will be an offence and may result in a fine of up to £200. Such failure could include a failure by a mother to provide information when required to do so, failure by a father to acknowledge or deny parenthood or failure by a mother to respond to a registration by a father with an acknowledgement or denial.

1.87 If a mother provides false information to the registrar, she might be subject to prosecution for perjury and liable to be sentenced to either a fine or imprisonment up to seven years. In order to be liable to prosecution, a person must wilfully provide a false answer, declaration or statement to the registrar, knowing it to be false. Although the Bill amends the Perjury Act specifically to include the duty of the mother to provide information, officials have explained to the House of Commons library that otherwise providing false information (for example, by a man pretending to be a father) would automatically be covered by the offence.[86]

1.88 The Government accepts that these provisions will engage the separate private and family life rights of mothers, fathers and children, and believes that "interference with the mother's Article 8 rights in requiring her to provide information about the father is appropriately balanced against the child's Article 8 right to know about his parentage and the father's right to respect for his family life under Article 8."

1.89 The Explanatory Notes explain that additional safeguards exist for vulnerable mothers not to have to provide information about the father. Similarly, the Government explains its view that any interference with the father's right to private life, as a result of the requirement that the mother disclose information about him is justified. The reasons for justification are very similar to those cited above: principally to protect the right of the child to know both parents and to encourage unmarried fathers to be involved in the lives of their children.

1.90 Mixed views have been expressed about these changes. Some doubts were expressed about the efficacy of this policy in response to the Government's White Paper. For example, Local Authorities Coordinators of Regulatory Services (LACORS) expressed some concern that registrars would be turned into investigators by the legislation. Rights of Women have expressed some concerns about the use of compulsion to extract information from women:

    Forcing women to justify why they do not want to name a father on a birth certificate is not acceptable. Such an approach, rather than encouraging responsible fatherhood, would in fact penalise and potentially humiliate women.[87]

1.91 The Fatherhood Institute takes a different view:

    The legislation may actually help some vulnerable mothers: in the past, a violent or otherwise seriously problematic unmarried father could simply be 'left-off' the birth certificate, no questions asked. Now if a mother must identify him as a risk in order to prevent his registration, this makes the situation visible and provides an opportunity for support to be provided to both of them: to ensure her safety and to engage with him on behaviour change, or through the criminal justice system.[88]

1.92 Refuge has also expressed concerns about a compulsion based registration process. It does not believe that this approach strikes the right balance between the rights of all parties involved in a birth and that the safeguards proposed may put vulnerable women and children at risk. The Church of England has expressed concerns that the new scheme will place a heavy burden on mothers without any clear benefit, and is disproportionate to the problem identified by the Government:

    [Currently] only 20,250 children are solely registered and not in contact with their fathers. Given that the proposals are to a great extent, concerned with legitimate exemptions to the requirement for joint registrations, the benefits of the legislation stand to affect an even smaller number. The cost of this will be borne, not only by registrars and the courts, but also those mothers who have genuine reasons for exemption from joint registration who will face considerable additional bureaucracy (in contradiction to the expressed aim of supporting vulnerable women).

1.93 Maternity Action wrote to tell us that they welcomed these provisions in so far as they were intended to enable a child to know the identity of its parents and to facilitate contact with both parents. They expressed concern that the Bill did not adequately address the question of parental responsibility and violent fathers. A father will have the right to register his name against the birth and will automatically secure parental responsibility. Maternity Action argue that parental responsibility should continue to be limited to circumstances where an application is made to the court when a mother declares that she has reason to fear for her safety or that of her child if the father were to acquire parental responsibility.[89]

1.94 During Committee Stage in the House of Commons, a number of amendments were tabled in respect of the exemption permitting mothers to withhold information about the father of her child when she has reason to fear for her safety or that of her child. Some members argued that the provisions in the Bill did not go far enough to protect women and children from domestic violence and, for example, that the exemption should extend to cover violence against other children.[90] Others argued that the exception was too widely drawn, noting that protection of victims of domestic violence should be secured through alternative means, including the criminal law, not by excluding a father's name from a birth certificate.[91]

1.95 Law Centre (Northern Ireland) told us that they thought that the new scheme should be welcomed, but that the safeguard in the new regulations would:

    Need to ensure that given the delicate nature of many of the exemption criteria, considerable care is taken to ensure that no further distress is caused to the mother or the alleged father during the registration process. Careful consideration needs to be given to how exemptions are applied and the appropriate burden of proof discharged in order to obtain an exemption from registration.[92]

1.96 We wrote to the Minister to ask a number of questions about how these proposals would work in practice, including for further information about the Government's view that these proposals will not lead to a breach of the rights of women to respect for their private lives. The Minister accepts that these proposals may interfere with a mother's right to respect for private life (as guaranteed by Article 8 ECHR), but explains that the interference imposed by the new duties must be balanced against "the father's Article 8 rights to be involved in his child's life and the child's right to know his parents' identity". We asked the Minister to provide further information about the evidence base to show that these proposals would achieve the Government's aim of enhancing the involvement of fathers in their children's lives and of protecting the right of the child to know its parents. He told us:

    We are seeking, through this policy, to encourage more men to understand and accept their responsibilities as a father. We want both mothers and fathers to recognise that a child has a right to be formally acknowledged by both parents and indeed this act of acknowledging the child is one of the first steps of responsible parenthood.


    We are aiming through this policy to encourage and support the development of a long term involvement on the part of a father in his child's life, and the benefits of parental involvement. We do of course recognise that joint birth registration is merely a starting point for such a relationship, but we believe it is an important and positive milestone for achieving this. Evidence from US research with fragile families demonstrates that early acknowledgement of paternity has significant benefits for both ongoing father-child contact and financial support for the child.

1.97 The Minister explained:

  • The Government has decided to make the provision of information compulsory and liable to prosecution for perjury in order to enhance the effectiveness of its proposed policy. It considers that in the small number of cases where a woman registers the birth of her child independently (around 7 % of births or 50,000 children), there may be a significant number of cases where the father and mother of the child are not cooperating and that women would not provide this information without threat of sanction.
  • The Government has extended the application of the Perjury Act to the provision of information about unmarried fathers. It considers that this is appropriate as the provision of other false information about a birth is also subject to prosecution for perjury. The Government considers that fathers who falsely provide information about their fatherhood of a child (i.e. by maliciously or falsely attempting to register as a father) would also be liable to prosecution for perjury.
  • The registrar's role is to "record the information which he or she is provided with, not to challenge or question it". However, the Minister went on to explain that "in cases, where there are suspicions about the information being provided, the registrar would seek to resolve these with the person concerned in order to enable the birth to be registered". The Minister provided a further explanation of the Government's view on how these proposals will work in practice:
  • The mother attending the register office will, as now, be required to provide certain information concerning the birth. In cases where she is seeking an exemption from the duty to provide information about the child's father (where she is not registering jointly with him) she will need to make a declaration to this effect. We are working with registrars themselves to develop the precise form which such a declaration will take, however a woman who makes a declaration that an exemption applies will not be probed further on this.
  • The Government intends that information about the exemptions will be given as part of the process of registration. Registrars are to be fully trained and existing guidance revised to take account of these changes.
  • In the Government's view, there will be few circumstances where a prosecution for perjury against a mother providing information about a father will be in the public interest. The Minister told us that if a woman in fear of domestic violence falsely stated that she did not know the father of her child, in the Government's view, prosecution would not be in the public interest. The Minister gives two examples where prosecution might be appropriate: (a) when a woman falsely names a man in an attempt to secure citizenship for her child and (b) when a woman falsely names a man in order to harass him.

1.98 The European Court of Human Rights affords States a broad margin of appreciation in respect of their arrangements in respect of birth registrations and the determination of paternity. Article 8 ECHR does however protect the private life and family life interests of unmarried fathers by requiring States to have some mechanism in place by which they may have their paternity legally recognised. Similarly, the right of a child to know his or her parentage is part of his or her right to respect for private life (Article 8 ECHR). However neither of these rights are unbounded and may be limited by the right of the mother to respect for her private and family life and the right of her child to be free from harm (Article 8 ECHR). The State must strike a "fair balance" between each of the interests concerned. Although the ECtHR has determined that in paternity cases, the determination of a fair balance will be weighted in favour of the interests of the child, this may have a different outcome in different cases. In some cases, the ECtHR has recognised that the interests of a child justified the refusal of the registration of his or her biological father on his or her birth certificate[93] and in others, the child's interest in her genetic heritage was weighted in favour of establishing paternity and a paternal relationship.[94]

1.99 The Court has recognised that a number of legitimate mechanisms for the registration of births exist across the Council of Europe and have recognised systems which allow anonymous births or which only permit registration of unmarried fathers after the consent of the mother or an order of the court. In our view, there is nothing in existing case-law or in the evidence presented by the Minister to suggest that the existing system of birth registrations is operating in a manner which will lead to a significant risk of a breach of Convention rights.

1.100 We are disappointed that the Government has provided little evidence to show that these new provisions will lead to more fathers acknowledging paternity and subsequently performing an active role in their children's lives. This change of policy represents a significant change of approach to birth registrations and potentially criminalises any woman who refuses to name the father of her baby. In the absence of clear and compelling evidence that this change will yield improvements in the lives of children who would otherwise be registered solely by their mother, we regard this as an unwarranted interference in the personal privacy and private life of the mother.

1.101 We note the decision to provide exemptions for women who are uncertain about the identity of the father of their child or his whereabouts and those who fear violence. Similarly, we note the provisions which will allow both mothers and fathers to challenge assertions of paternity by refusing to acknowledge a proposed registration. We note the recognition that certain cases may only be resolved by a judicial determination, including in respect of parental responsibility. We consider that without these safeguards, there would be a significant risk that these provisions would fail to strike an appropriate balance between the family and private life rights of mothers, fathers and their children in individual cases.

1.102 Although these changes will affect a relatively limited number of births, they may apply in cases where women are vulnerable, young and/or relatively inexperienced in dealing with administrative authorities. We consider that it would be inappropriate for registrars to be charged with questioning women in detail about their previous sexual experiences or challenging the likelihood that women are able to determine and identify the father of their child and that increasingly intrusive questioning would enhance the risk of a breach of the mother's right to respect for private and family life in any individual case. We welcome the Government's indication that registrars will take a limited role in questioning the answers given by a woman. We are concerned that the Minister has indicated that this role may change in 'suspicious' cases. If the Government proceeds with these proposals, we consider that clear and detailed training and guidance on the operation of these provisions will be necessary in order to ensure that they operate in a way which maintains the delicate balance between the rights of parents and their children. We note the Government's indication that these provisions will be piloted before they are implemented on a wider scale, but question the practicalities and fairness of piloting, particularly if the pilot proves to be unsuccessful and is not implemented nationwide. We recommend that any regulations under these provisions should not be made without close consultation with registrars, parents, children and their organisations. We recommend that similar consultation takes place as part of the evaluation of any pilot programme and before the implementation of any relevant training and guidance for registrars.

1   HL Bill 32 - EN  Back

2   See below, page 64 Back

3   See below, page 71 Back

4   Second Report of 2006-07, Legislative Scrutiny: Corporate Manslaughter and Corporate Homicide Bill; Welfare Reform Bill; Consumers Estate Agent and Redress Bill; Fraud (Trials without a Jury) Bill; Tribunals, Courts and Enforcement Bill, HL Paper 34, HC 263 Back

5   Cm 7363 and Cm 7506 Back

6   Clause 1 Back

7   Clauses 2 - 11 Back

8   Clause 9 Back

9   Clause 2, New Section 29, Clause 25 Back

10   Clauses 10-11, 21-22 Back

11   Part 2 Back

12   Part 3 Back

13   Part 4 Back

14   Article 22. See also Article 25. Back

15   See also Article 9, which protects the right to social security. The right to social security has been subsequently incorporated in a range of international human rights treaties, including in the International Convention on the Elimination of All Forms of Racial Discrimination (Article 5(e)); Convention on the Elimination of All Forms of Discrimination against Women (Articles 11 and 14) and the Convention on the Rights of the Child (Article 26). See also the European Social Charter, Articles 12, 13 and 14. Our predecessor Committee previously explained the legal status of the ICESCR in their report on the Covenant, see Twenty-first Report of 2003-04, The International Covenant on Economic Social and Cultural Rights, HL Paper 183, HC 1188, paras 16 - 17.  Back

16   General Comment No 19, The Right to Social Security, 4 February 2008, E/C.12/GC/19, para 1. Back

18  17   Ibid, paras 64 - 65. We have previously explained that General Comments will be relevant to any Court's interpretation of the Convention. See Eleventh Report of Session 2007-08, Para 30, Footnote 41. Back


19   Ibid, para 42. Back

20   In order to be "in accordance with law" measures must have a basis in domestic law and be sufficiently precise to allow people to foresee the consequences of their actions. Back

21   Muller v Austria App No 5849/72, 3 DR 25. The Explanatory Notes accept this analysis and proceed from the basis that contributory and non-contributory benefits must be treated as possessions for the purposes of the ECHR. Back

22   Ibid; Stec and others v UK, App. No. 65731/01, Judgment dated 12 April 2006, paras Back

23   Ibid; Zeman v Austria, App No 23960/02 Judgment dated 29 June 2006 Back

24   See the House of Lords decision in Limbuela, [2005] UKHL 66. Back

25   See for example Zacchaeus 2000, Response to Welfare Reform Bill, January 2009 Back

26   Oxfam GB, Close to Home, UK poverty and the economic downturn, March 2009 Back

27   Conditionality refers to conditions placed on benefits subject to sanctions. Sanctions include reductions in sums of benefit received. Back

28   See for example Child Poverty Action Group, Second Reading Briefing, January 2009. Back

29   See for example, HC Deb, 17 March 2009, Cols 795-796 Back

30   See for example, HC Deb, 17 March 2009, Col 794 Back

31   See for example, HC Deb, 17 March 2009, Cols 786-790 Back

32   Cm 7506 Back

33   See for example, Article 6, ICESCR Back

34   See below, page 71 Back

35   Department of Work and Pensions, Welfare Reform Bill - Use of Regulation Making Powers ("Detailed Delegated Powers Memorandum") Back

36   General Comment No 19, The Right to Social Security, 4 February 2008, E/C.12/GC/19, para 67. Back

37   Second Report of 2006-07, para 3.18 Back

38   See below, page 105 Back

39   See below, page 115 Back

40   CAB, Committee Stage Briefing, February 2009 Back

41   See below, page 105 Back

42   See below, page 71 Back

43   Clause 1(8), New Section 17A (8) Back

44   Ibid, New Section 17B(1) Back

45   Para 31 Back

46   Para 29 Back

47   See also, for example, HC Deb, 17 March 2009, Col 796-797 Back

48   See for example, HC Deb, 17 March 2009, Cols 810-814 Back

49   See also, Detailed Delegated Powers Memorandum, paras 95-107. Back

50   See for example, HC Deb, 17 March 2009, Cols 807-808, 829-830 Back

51   Ibid Col 829-831 Back

52   Clause 9, Schedule 3 Back

53   BBC News Online, Alcoholics could see their benefits cut, 14 April 2009 Back

54   See for example, Herczegfalry v Austria (1992) 15 EHRR 437; see also Z v Finland (1997) 25 EHRR 371 Back

55   See for example, Drugscope, Press Release, DrugScope responds to publication of Welfare Reform White Paper, December 2008. Release, Welfare Reform Bill A Briefing Paper for Members of the House of Lords, April 2009; Liberty, Briefing and Amendments for Report stage on the Welfare Reform Bill in the House of Commons, March 2009.  Back

56   EN, para 421 Back

57   See below, page 109 Back

58   Ninth Report, Session 2006-07, The Meaning of Public Authority under the Human Rights Act, HL Paper 77, HC 410 and Seventh Report, Session 2003-04, The Meaning of Public Authority under the Human Rights Act, HL Paper 39, HC 382. Back

59   Section 6(3)(b) Human Rights Act 1998. Back

60   Ninth Report, Session 2006-07, para. 66. Back

61   [2008] 1 AC 95. Back

62   Eleventh Report of Session 2008-09, Para 1.25 Back

63   See below, pages 80 Back

64   New Section 2G. Back

65   Second Report of 2006-07, Para 3.32. Back

66   See below, page 77. Back

67   Speech to Evangelical Alliance, February 2009 Back

68   See below, page 89 Back

69   Eleventh Report of 2008-09, Legislative Scrutiny: Health Bill; Marine and Coastal Access Bill, HL Paper 69, HC 396, para 1.20. Back

70   Sixth Report of 2006-07, Legislative Scrutiny: Sexual Orientation Regulations, HL Paper 58, HC 350, paras 50 - 53. Back

71   The right to be free from discrimination extends to staff and is recognised in EU anti-discrimination legislation, where discrimination in employment is prohibited, except where justified by reference to a genuine occupational requirement. Back

72   EN, para 453 Back

73   Third Report of Session 2007-08, Child Maintenance and Other Payments Bill, HL Paper 27. Back

74   HL Deb, 7 Feb 2008, GC 665. Back

75   See below, page 100 Back

76   See below, page 100 Back

77   See for example Krenz v Poland, App No 28249/95, Judgment dated, 19 June 2007 Back

78   Letter from Lord Newton of Braintree to James Purnell MP, dated 18 March 2009. Back

79   (1996) 22 EHRR 293. The proceedings were in breach of Article 6(3) as the applicant had not been able to access legal aid.  Back

80   Ozturk v Germany (1985) 6 EHRR 409; Lautko v Slovakia (1998) 33 EHRR 25. Back

81   The House of Lords has recognised that although the imposition of curfews associated with control orders does not on balance involve the determination of a criminal charge, that the protection of Article 6(1) entitles the person subject to the control order to procedural protection commensurate with the gravity of the potential consequences. Secretary of State for the Home Department v MB, [2007] UKHL 46, paragraph 24. Back

82   R (McCann) v Crown Court at Manchester [2002] UKHL 39. Back

83   Cm 6979 paras 5.26 - 5.27 Back

84   Article 13(2) Back

85   Clause 46, Schedule 6. Back

86   Welfare Reform Bill, House of Commons Library Research Paper, 09/09, 23 January 2009. Back

87   Ibid, pp. 42-43 Back

88   Ibid, p. 43 Back

89   See below, page 104 Back

90   PBC Deb, 3 March 2009, Col 256 Back

91   Ibid, Col 253 Back

92   See below, page 101 Back

93   Yousef v The Netherlands, App No 33711/96, paras 66-74 Back

94   See for example Sahin v Germany, App No 30943/96, where there was a violation of Article 8 ECHR where the court had failed to take into account the interests of a child in examining access rights. Similarly see Lebbink v The Netherlands, App No 45582/99, where the interests in recognising biological paternity - and a putative family relationship - had not been recognised in the process of the domestic courts. Back

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