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

Conclusions and recommendations

Welfare Reform Bill


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)


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)


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)


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)


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)


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)


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)


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)


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


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)


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)


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)


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)


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)


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


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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