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The Welfare Reform Bill was introduced in the House of Commons on 16 February 2011 and was brought from the House of Commons to the House of Lords on 16 June 2011. The Bill completed its Committee stage in the House of Lords on 28 November and its Report stage is scheduled for 12 December. In this Report we consider the significant human rights issues raised by the Bill.
The Government's principal objective in this Bill is to support people to move into and progress in work, while still supporting those in greatest need. We commend this objective, which is consistent with many international human rights instruments which recognise the right to work and the right to an adequate standard of living. We therefore welcome the Bill as a potentially human rights enhancing measure. This Report assesses whether the means for achieving the Government's objective are compatible with the requirements of human rights law.
Human rights memoranda, impact assessments and monitoring
We regret the fact the Bill was not accompanied by a full human rights memorandum. We remind departments of the examples of best practice by those departments which have provided us with detailed human rights memoranda accompanying Government Bills. The provision of such information to Parliament strengthens the principle of subsidiarity: as the case-law of the European Court of Human Rights clearly shows, laws which are passed following detailed and informed parliamentary scrutiny of their human rights compatibility are more likely to withstand subsequent judicial scrutiny.
We call on the Government to improve its capacity to conduct equality impact assessments. We reiterate our previous recommendation that, where the Government's view on compatibility relies on safeguards to be provided in secondary legislation, draft Regulations should be published together with the Bill. We call upon the Government better to monitor the post-legislative impact of the measures in the Bill, and of legislative provisions of this kind generally
The international human rights context
We are disappointed by the Government's failure to carry out any detailed analysis of the compatibility of the proposals in the Bill with the UK's obligations under the UNCRC, the ICESCR and the UNCRDP. We have commended a number of human rights memoranda from departments in the past which have done precisely that and we remind departments of this Committee's expectation in this respect.
Destitution
Imposing conditionality requirements on benefits is not precluded by human rights law. However, we believe there is a risk that the conditionality and sanction provisions in the Bill might in some circumstances lead to destitution, such as would amount to inhuman or degrading treatment contrary to Article 3 ECHR, if the individual concerned was genuinely incapable of work. We therefore urge the Government to give careful consideration to this risk, take steps to establish an appropriate hardship regime, train staff to ensure sensitivity to this issue and carefully monitor the impact of the sanctions regime on people with particular characteristics.
Discrimination
We are concerned that some of the proposals, such as those relating to employment support allowance and housing benefit, may be implemented in a way which could lead to a discriminatory impact and which does not demonstrate a reasonable relationship of proportionality between the means employed and the legitimate aim that is sought to be realised. 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 and closely monitored after implementation.
With regard to the housing benefit cap, the disproportionate impact of current proposals on larger households is said by the Government to be justified because it promotes fairness with similar-sized households which are just outside entitlement to benefit. This is undoubtedly a legitimate aim. An alternative approach to increasing fairness is to compare like with like—that is to calculate the level of the cap based on earnings of families with children, rather than all households. We ask the Government whether they have carried out an assessment of these approaches with a view to comparing their proportionality. We are also particularly concerned about the possible disparate impact on some disabled people and we recommend allowing some additional discretion to exempt disabled people facing exceptional hardship from the benefit cap and from the provisions concerning under-occupation of social housing.
Retrogression
We recognise that the availability of resources is of central relevance to the extent of the UK's obligations under the UN human rights treaties However, the duty of progressive realisation in UN human rights treaties entails a strong presumption against retrogressive measures affecting the right to social security and to an adequate standard of living. We have analysed several areas where such retrogression is proposed in the Bill.
We are not satisfied that the Government has demonstrated reasonable justification for the negative impact of the introduction of Personal Independence Payments on the right of disabled people to independent living. We believe that the Bill should be amended to ensure that the assessment process for PIPs takes account of the social, practical and environmental barriers experienced by disabled claimants which would make it less likely that that the Bill will lead to incompatibilities with the UK's obligations under the UN Convention on the Rights of Disabled People. We further recommend a trial period for the new assessment process and a report to Parliament on the implementation of the new testing system, to ensure that the impact of the new assessment process is fully assessed and analysed in light of its operation in practice.
We welcome the Government's avowed intention of improving ministerial accountability for the eradication of child poverty. However, any proposed changes to the current legal framework which has the potential to diminish ministerial accountability to Parliament for the reduction of child poverty requires the most careful scrutiny and we recommend that the Bill be amended to require the Secretary of State to make a statement to Parliament responding to the annual report of the Social Mobility and Child Poverty Commission and that the Government commit to providing an opportunity for Parliament to debate the Commission's report and the Minister's statement in response.
Other issues
We are reassured by responses from the Government to concerns we had over information-sharing provisions in the Bill and with regard to certain powers to deal with benefit claimants thought to be abusing drugs or alcohol. However, on the issue of contracting out, legislation is urgently needed to resolve the existing uncertainty surrounding the meaning of 'public authority', putting beyond doubt, in statute, Parliament's original intention. In the meantime, we recommend that the Government produce clear and detailed guidance to relevant Government departments and agencies in order to ensure that all public authorities and relevant contractors understand the scope of their duties under the HRA
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