Conclusions and recommendations
Welfare Reform Bill
WELFARE, BENEFITS AND HUMAN RIGHTS
1. 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. (Paragraph 1.13)
2. 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. (Paragraph
1.16)
3. 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. (Paragraph
1.21)
4. 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. 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. (Paragraph
1.22)
5. 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.
(Paragraph 1.23)
EMPLOYMENT SUPPORT ALLOWANCE AND WORK RELATED ACTIVITY
6. 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. (Paragraph 1.26)
7. 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. (Paragraph 1.29)
"WORK FOR YOU BENEFIT"
8. 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.
(Paragraph 1.36)
PARENTS AND WORK RELATED ACTIVITIES
9. 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.
(Paragraph 1.41)
10. 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. (Paragraph 1.42)
CONDITIONALITY AND DRUG AND ALCOHOL DEPENDENCY
11.
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. (Paragraph 1.48)
PERSONALISATION, INDIVIDUAL BUDGETS AND DISABLED
PEOPLE
12. 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.
(Paragraph 1.54)
CONTRACTING OUT
13. 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. (Paragraph 1.57)
14. 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. (Paragraph 1.61)
15. 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. (Paragraph
1.61)
POWERS OF THE CHILD MAINTENANCE AND ENFORCEMENT COMMISSION
16. 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. (Paragraph 1.69)
17. 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. (Paragraph 1.73)
18. 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. (Paragraph 1.78)
19. 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. (Paragraph 1.82)
JOINT RESPONSIBILITY FOR BIRTH REGISTRATION
20. 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.
(Paragraph 1.100)
21. 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. (Paragraph 1.101)
22. 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. (Paragraph 1.102)
Apprenticeships, Skills, Children and Learning
Bill
EXPLANATORY NOTES
23. We
welcome the human rights memorandum sent to us by the Department
for Children, Schools and Families before the publication of the
Bill and we encourage other departments to follow the same practice
in future. (Paragraph 2.6)
(1) EDUCATION FOR DETAINED YOUNG OFFENDERS
24. We
welcome as positively human rights enhancing measures the provisions
in the Bill concerning education for detained young offenders.
(Paragraph 2.14)
25. We accept that
it is not necessarily practical for all of the duties imposed
on LEAs in the Education Acts to apply to the education and training
of detained children, because of the constraints imposed by custody
and the length of time for which children are usually detained.
We welcome the Government's amendments to the Bill concerning
the special educational needs of detained children and young people.
We agree that they amount to a significant strengthening of the
legal framework for the meeting of the special educational needs
of this group of children and young people amongst whom such special
needs are particularly prevalent. (Paragraph 2.22)
(2) POWER TO SEARCH PUPILS FOR ALCOHOL, ILLEGAL DRUGS
AND STOLEN PROPERTY
26. We
therefore welcome the Government's aspiration to provide a clear
legal framework for searching pupils in schools, with clearly
defined powers and safeguards. This should enhance legal certainty
for both staff and pupils and therefore advances human rights.
However, interferences with Convention rights must be shown by
evidence to be necessary. Giving teachers what are effectively
police powers to search children and young people, and to seize
their property, without the accompanying training in the exercise
of such powers or detailed codes of practice regulating their
exercise, is a significant step which ought not to be taken lightly.
We accept that making such powers available to school staff
is in principle capable of justification if they can be shown
to be necessary, and we welcome the inclusion of detailed safeguards
on the face of the Bill. However, we recommend that the Government
publish a more rigorous analysis of the evidence which demonstrates
the scale of the problem of drugs, alcohol and stolen property
being present on school premises, so that Parliament can make
an informed decision about the necessity for the extended powers.
(Paragraph 2.30)
(3) OBLIGATION TO RECORD SIGNIFICANT INCIDENTS INVOLVING
USE OF FORCE BY STAFF ON PUPILS
27. We
welcome the new obligation to record the use of force on pupils
as a positive, human rights enhancing measure. The availability
of reliable data about the incidence of the use of force in schools
is an important safeguard against the abuse or disproportionate
use of that power, as it enables it to be independently monitored.
(Paragraph 2.35)
28. We welcome the
Government's decision to revise the 2007 Guidance on the use of
force by staff in schools in the light of recent developments
and we look forward to being given an opportunity to comment on
the human rights compatibility of the draft guidance before it
is finalised. (Paragraph 2.41)
(4) UNCRC AS STRATEGIC FRAMEWORK FOR CHILDREN'S PLANS
29. We
welcome the Government's commitment that children and young people
should be consulted when the Children and Young People's Plan
is being drawn up, and the fact that this will be made a requirement
in the new regulations governing the adoption of such Plans. (Paragraph
2.45)
30. We are not persuaded
by the Government's reasons for not taking the opportunity in
this Bill to embed the UNCRC further in policy-making. The Bill's
provisions on the drawing up of Children and Young People's Plans
provide an opportunity for the Government to respond positively
and constructively to the concern of the UN Committee on the Rights
of the Child that the Convention is not regularly used as a framework
for the development of children's strategies. We recommend that
the Bill be amended so as to require Children's Trust Boards to
have regard to the need to implement the UNCRC when preparing
its Children and Young People's Plan and suggest an amendment
below to achieve this. (Paragraph 2.48)
(5) CHILDREN'S CENTRES
31. We
welcome the Bill's provisions concerning children's centres as
human rights enhancing measures which are likely to contribute
towards the progressive realisation of the rights of children
under the UNCRC. (Paragraph 2.51)
Health Bill
HEALTHCARE FOR REFUSED ASYLUM SEEKERS
32. We
remain as concerned as we were more than two years ago when we
concluded our inquiry into the Treatment of Asylum Seekers that
a highly vulnerable group of people in the UK (refused asylum
seekers, including children) continue to be denied access to fundamental
healthcare which is available to the general population. This
is a particularly acute problem for refused asylum seekers who
cannot be returned. It is inconceivable that the majority of refused
asylum seekers would be able to pay to receive such treatment
themselves and therefore, in the absence of a Trust exercising
its discretion in the refused asylum seeker's favour, he or she
will be refused treatment. This not only risks exacerbating an
asylum seeker's health problems to a point where treatment becomes
urgent and critical, but also risks breaching his or her rights
under the ECHR and the ICESCR. We repeat our recommendation that
free primary and secondary healthcare be provided for all those
who have made a claim for asylum or under the ECHR whilst they
are in the UK, in order to comply with the laws of common humanity
and the UK's international human rights obligations, and to protect
the health of the nation. In particular, we note the very difficult
position of refused asylum seekers who cannot be returned and
recommend that the Government issue guidance to set out clearly
their entitlement to free healthcare whilst they remain in the
UK. (Paragraph 3.15)
33. We are disappointed
that the Department of Health does not propose to reissue Guidance
in the light of the recent Court of Appeal judgment until the
autumn. We are unclear as to why the Government considers such
a delay to be necessary or desirable. The Court of Appeal held
that the lack of clarity in the Guidance was misleading and unlawful.
In our view, revised Guidance, consistent with the judgment,
must be issued rapidly, in order to ensure clarity for service
providers and recipients alike. Furthermore, we ask the Government
to explain what steps it proposes to take, in addition to the
Department of Health's letter of 2 April 2009, to ensure that
the effects of the Court of Appeal's judgment are correctly disseminated
to and implemented by front line workers. In addition, we are
alarmed that the Government has still not published the outcome
of its review of access to the NHS for foreign nationals, nor
its promised public consultation. We recommend that it does so
as a matter of urgency. (Paragraph 3.16)
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