Legislative Scrutiny: Welfare Reform Bill - Human Rights Joint Committee Contents

Conclusions and recommendations

The purposes and effect of the Bill

1.  We commend the Government's aim to support more people, and in particular people who might otherwise be disadvantaged in the employment market, into work as the most effective route out of poverty. This aim 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. (Paragraph 1.8)

Information provided by the Government

2.  We remind departments of the examples of best practice by those departments which have provided us with detailed human rights memoranda accompanying Government Bills. This is not merely a matter of preference by this Committee. The principle of subsidiarity, which the Government rightly seeks to strengthen during its Chairmanship of the Council of Europe, requires the Government and Parliament to fulfil their responsibility for implementing human rights in the national legal system. The provision of detailed human rights memoranda to Parliament is an important means of demonstrating the Government's fulfilment of that responsibility. It also facilitates Parliament in fulfilling its responsibility in that regard. We also remind the Government that, 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. (Paragraph 1.11)

3.  We call on the Government to improve its capacity to conduct equality impact assessments, in particular to go beyond piecemeal analysis of each measure by assessing the proposed provisions as a whole, including their cumulative impact on individuals and groups, from an equality perspective. (Paragraph 1.15)

4.  For the reasons we set out below we have concerns that the proposals may be implemented in a way which could lead to a risk of incompatibility with Convention rights. We reiterate our previous recommendation that, 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 nature of the safeguards it proposes to provide. (Paragraph 1.17)

5.  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, with particular attention to the risks of destitution, discrimination and retrogression highlighted below. (Paragraph 1.19)

Relevant human rights standards

6.  In our view, in any parliamentary democracy it is the democratic branches of the State, that is, the Government and Parliament, which should have primary responsibility for economic and social policy, in which the courts lack expertise and have limited institutional competence or authority. (Paragraph 1.22)

7.  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. The legal effect of these human rights obligations in the UK is different in kind from the legal effect of Convention rights, which are given effect in our national legal system under the Human Rights Act, but they are nevertheless binding obligations in international law and the Government should be able to demonstrate that they have considered the compatibility of legislative proposals with those obligations. We have commended a number of human rights memoranda from departments in the past which have done precisely that. (Paragraph 1.35)

8.  We remind departments of this Committee's expectation in this respect, which is explicitly referred to in the Cabinet Office Guide to Legislative Procedure. (Paragraph 1.35)

9.  We also remind the Government of the "clear commitment" given by the Minister of State for Education, Sarah Teather, to the House of Commons on 6 December 2010, "that the Government will give due consideration to the UNCRC articles when making new policy and legislation", and, in so doing, will always consider the recommendations of the UN Committee on the Rights of the Child. (Paragraph 1.36)

Significant human rights issues

10.  The ECHR does not preclude individual member states from setting conditionality requirements in respect of work. However, 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. The absence of more detail about the proposed system of hardship payments, and the lack of publicly available statistics on the number of applications for hardship support under existing regimes, means that we are not in a position to assess the degree of risk. We urge the Government to give careful consideration to this risk, to 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. (Paragraph 1.45)

11.  For the reasons set out below, we remain concerned that these proposals may be implemented in a way which could lead to a discriminatory impact and may 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. We recommend that the changes should be closely monitored to understand the implications of the proposals for individual rights, including the right to respect for an adequate standard of living, and the right to enjoyment of those rights without discrimination. (Paragraph 1.48)

12.  This may call into question the objective justification for the disparate impact, and at the very least suggests the need for close scrutiny to ensure that Article 14 is not breached. (Paragraph 1.52)

13.  We believe that close monitoring of the impact of this change is essential, in order to ensure that it is proportionate, and to take mitigating action if necessary. (Paragraph 1.55)

14.  The disproportionate impact on larger households is said to be justified because it promotes fairness with similar-sized households which are just outside entitlement to benefit. This is undoubtedly a legitimate aim. There is no Strasbourg case law on this specific issue. 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. (Paragraph 1.59)

15.  However, we are concerned that some disabled people who do not get DLA (especially with the tightened criteria of the new PIP regime) may be forced to move, and will face disparate impact in terms of extensive disruption regarding adaptations and caring/support networks. We recommend allowing some additional discretion to exempt disabled people facing exceptional hardship from the cap. (Paragraph 1.61)

16.  We recommend allowing some additional discretion to exempt disabled people facing exceptional hardship from the under-occupation provisions. (Paragraph 1.66)

17.  In light of this uncertainty, and taking into account the discussion above of potential discrimination in relation to disabled people, we are not satisfied that the Government has demonstrated reasonable justification for the negative impact of the introduction of PIPs on the right of disabled people to independent living. (Paragraph 1.71)

18.  We welcome the Government's willingness to listen to concerns raised about the proposal to withdraw the mobility component of PIP from residential care home residents, including in particular its impact on the right of disabled people to independent living, and its decision to table an amendment to the Bill to remove this provision. (Paragraph 1.73)

19.  We welcome this intention, which is in keeping with the Government's avowed commitment to the "social model" of disability (as opposed to the outdated "medical model"). This approach recognises that the obstacles to disabled people's inclusion in society are not their physical condition but the environmental, social and attitudinal barriers to their full participation. The UNCRDP is entirely premised on this social model of disability. (Paragraph 1.74)

20.  We believe that amending the Bill to ensure that the assessment process for PIPs takes account of the social, practical and environmental barriers experienced by disabled claimants would make it less likely that that the Bill will lead to incompatibilities with the UK's obligations under the UNCRDP. 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. (Paragraph 1.75)

21.  A report from the Department of Work and Pensions, prior to the Bill's introduction of tighter conditionality sanctions, identified the need further to consider the impact of the JSA conditionality regime on lone parents and the effect of any loss of benefit on them and their children. We endorse this recommendation for detailed research and monitoring of the impact conditionality regime on loan parents. (Paragraph 1.79)

22.  We are concerned that the cumulative impact of the Bill's provisions may lead to retrogression which is not justified by the factors set out in the General Comments of the UN Committees. We recommend that the Government consider what safeguards can be introduced to minimize this risk. For example, the Bill could be amended to allow payments intended for children to be labelled as such and be paid to the main carer. (Paragraph 1.82)

Other human rights issues

23.  The previous Committee expressed concern that, where contractors are providing services which amount to a public function for the purposes of the HRA 1998, individuals should be able to exercise remedies against them directly, as Parliament intended. (Paragraph 1.89)

24.  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. (Paragraph 1.90)

25.  The Minister informed the Committee that there are no current plans to use these mechanisms to mandate claimants to undertake drug testing or treatment. We very much welcome this assurance. (Paragraph 1.92)

26.  We welcome these assurances regarding the operation of the information-sharing regime. (Paragraph 1.94)

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Prepared 12 December 2011