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


2. Letter from the Chair, to Rt Hon Iain Duncan Smith MP, Secretary of State for Work and Pensions, 20 July 2011

The Joint Committee on Human Rights is scrutinising the Welfare Reform Bill for its compatibility with the UK's human rights obligations. We are grateful to your officials for agreeing to meet with us earlier in the year to discuss the work of the Committee and its likely approach to the Bill. A number of issues which arise in connection with our work on this Bill are also relevant to our ongoing inquiry on the right of independent living for disabled people.

We would be grateful if you could provide us with some further information on the Government's views on the compatibility of the Bill's proposals with the human rights obligations of the UK.

a) Explanatory Notes

The Committee has encouraged Government Departments to produce freestanding human rights memoranda dealing with the compatibility of legislative proposals with the wider human rights obligations of the UK, outside the ECHR and highlighting any measures which the Government considers may enhance the protection of human rights in practice.

1. I would be grateful if you could explain whether the Government has conducted any analysis of the proposals in the Bill for their compatibility with international human rights law, including, in particular, the obligations of the UK under a) the International Covenant on Economic, Social and Cultural Rights; and b) the UN Convention on the Rights of Persons with Disabilities.

2. I would be grateful if you could provide us with a copy of that analysis.

On a number of previous occasions, our predecessor Committee explained that Explanatory Notes which are very broadly based make it difficult for us to understand the Government's reasoning which supports the Minister's statement of compatibility under Section 19 HRA 1998. While we welcome the broad statement of the Government's position in the Explanatory Notes accompanying the Bill, we would be grateful if you could provide us with some more detailed explanations of the analysis provided.

3. Please provide a further explanation of the Government's view that statutory changes to conditions of entitlement to statutory benefits do not engage Article 1, Protocol 1 ECHR.

4. The Government considers that, if Article 1, Protocol 1 ECHR is engaged, the measures in the Bill are proportionate to the legitimate aim of securing the economic well-being of the country. The Explanatory Notes do not provide a full analysis of the Government's views on these measures, but refer to "relevant" considerations. We would be grateful for a fuller explanation of the Government's view on the compatibility of these proposals with Article 1, Protocol 1 ECHR (see paragraphs 694—695).

b) Delegated Powers and draft Regulations

Our predecessor Committee recommended on a number of occasions that where safeguards proposed in a Bill are designed to secure the protection of individual rights, those safeguards should be set out in the Bill or at the least produced in draft Regulations at the time the Bill is passed, to allow for full parliamentary scrutiny of the human rights impact of particular provisions. For example, in the Explanatory Notes accompanying the Bill, the Government explains that the ability to make exceptions to the benefits cap will be relevant to the issue of the proportionality of that measure. This issue has been a prominent feature of parliamentary debate, particularly in connection with the issue of whether the cap could operate to increase homelessness or whether the cap could have a discriminatory impact on particular households, including disabled people.

5. I would be grateful if you could explain whether the Government intends to make any draft Regulations available during the debate on the Bill.

6. If not, please explain how Parliament will have a full opportunity to consider the human rights impact of these proposals without full information on the relevant safeguards proposed. Specifically, please explain how Parliamentarians might raise human rights concerns about particular measures, when the draft Regulations will not be subject to line-by-line consideration.

During Report Stage in the House of Commons, the House considered a number of amendments which would have required certain provisions of the Bill to be subject to affirmative rather than negative procedure, including some of the detailed arrangements for the operation of Universal Credit and the Personal Independence Payment. In debate, the Minister indicated that the Government was still considering this issue. We note that the Delegated Powers and Regulatory Reform Committee expressed concerns that significant parts of this Bill will currently be determined in Regulations subject to the negative procedure, including the scope of requirements which the Secretary of State may impose on individual claimants and the operation of the hardship arrangements which will apply in relation to sanctions imposed.[64] In the past, our predecessor Committees have expressed concern where detail and safeguards which are relevant to the human rights impact of welfare reform measures are included in delegated legislation subject only to the negative procedure.[65]

7. I would be grateful if you could, as a courtesy, provide me with a copy of the Government's response to the Seventeenth Report of the Delegated Powers and Regulatory Reform Committee as soon as it is available.

c) Equality and impact assessments

We have seen the number of detailed equality impact statements which have been produced by the Department in relation to specific proposals in the Bill. We note that in the introductory memoranda to the Impact Assessments, the Government explains that the impact assessments have been designed to take into account changes to the public sector equality duty in the Equality Act 2010. We note that these impact assessments were not available until after the Bill had had its second reading in the House of Commons.

The EHRC and a number of NGOs have been critical about the scope of the impact assessments produced. For example, the EHRC has raised concerns about the lack of a cumulative impact assessment of the proposals in the Bill on groups bearing each or multiple of the protected characteristics in the Equality Act 2010. They have published their legal advice on the impacts of the Bill. This is an issue which has also been raised in evidence in our independent living inquiry.

8. Please explain why the equality impact assessments produced were not available in time for the introduction of the Bill.

9. Did the Government consult with the EHRC during the preparation of the equality impact assessments accompanying the Bill? If not, has the Government met with the EHRC to discuss their concerns about the scope of the equality impact assessments?

10. Please provide us with the Government's response to the concerns raised by the EHRC that the equality impact assessments prepared do not meet the public sector equality duty in the Equality Act 2010.

11. In light of the number of policy factors yet to be determined in the Bill (see above), is the Government satisfied that these equality impact assessments provide a full picture of the likely impact of the proposals in the Bill?

12. Has the Government conducted an assessment of the likely cumulative impacts of the proposals in the Bill? (Please provide the Government's response to the concern raised during debates in the House of Commons, that, without a cumulative assessment of the impact of the policies in the Bill on people who share protected characteristics (particularly women and disabled people), Parliament will not necessarily have a full picture of whether the Bill will operate in a discriminatory manner.)

13. Please confirm whether human rights memoranda and/or equality impact assessments will be produced to accompany regulations made under the Bill, in particular with regard to any regulations connected to eligibility for benefits, conditionality and the imposition of sanctions and the operation of hardship payments.

d) Monitoring implementation of the proposals in the Bill

Our predecessor Committee, in its Report on the Welfare Reform Bill 2009, noted that while the proposed reforms to welfare could operate in a manner which was compatible with human rights standards, a lot would depend on how the scheme was operated in practice, including how the detail of the scheme was set in further regulations. That Committee called on the Government to keep the scheme under review, including monitoring how the scheme engaged the human rights of claimants. The Bill already provides for the Secretary of State to report to Parliament on the operation of the assessment process to be introduced in connection with the Personal Independence Payment. During Report Stage in the House of Commons, the Minister for Disabled People, Maria Miller MP, indicated that the Government was still considering how best to monitor the impact of other measures in the Bill, including the impact of housing benefit reforms:

We want to ensure proper and accurate monitoring of the impact of the introduction of our policies. Indeed, we have put that in place for the work capability assessment and our reform of DLA. (HC Deb 13 June 2011, Col 600)

14. I would be grateful if the Government could outline the measures which it proposes to take to monitor the impact of the proposals in the Bill after they are implemented, including discriminatory impact on people and groups of people with the characteristics protected by the Equality Act 2010.

Clause 59 repeals provisions relating to drug dependence introduced in the Welfare Reform Act 2009. The predecessor JCHR criticised these provisions during the passage of the Act, expressing particular concern that requiring claimants to undergo treatment or testing could interfere with their right to respect for private life (Article 8 ECHR).

15. Please confirm that conditionality either in a claimant commitment or in a work-related or work preparation requirement will not extend to a requirement on claimants to undertake drugs testing or treatment (similar to the provision envisaged in Section 11, Welfare Reform Act 2009).

e) Contracting out

A number of clauses in the Bill provide powers for the Secretary of State to delegate power to implement the measures in the Bill to "authorised persons". It is unclear from the drafting in the Bill whether the Government intends "authorised persons" will be performing public functions for the purposes of the HRA 1998. On the one hand, the provisions in the Bill make clear that authorised persons' acts or omissions should be treated as if they were performed or omitted by the Secretary of State. On the other hand, the Bill exempts anything done for the "purposes of so much of any contract between the authorised person and the Secretary of State as relates to the exercise of the function."

16. In relation to each of the clauses in the Bill which provide for the Secretary of State to contract out certain of his functions in relation to welfare reform, please explain whether the Government considers the authorised person will be performing a "public function" for the purposes of Section 6 of the Human Rights Act 1998?

17. If not, please explain against which public body an individual who wished to rely on the Human Rights Act 1998 could claim.

f) An adequate standard of living, destitution and poverty

The Explanatory Notes accompanying the Bill express the Government's categorical view that none of the provisions in the Bill will create a risk that any claimant will fall into destitution or poverty which meets the standard identified by the House of Lords in Limbuela that engages the right to be free from inhuman and degrading treatment (Article 3) ECHR. Principally, the Government explains that:

a.  the most severe sanctions will not apply to claimants who face significant barriers to work;

b.  there will be a hardship regime in place to protect vulnerable claimants and their families;

c.  "[i]n relation to the proposal to introduce an entitlement to work for certain benefits, "other means of support will be available where necessary to ensure compliance with Article 3"; and

d.  in relation to the closure of the social fund and other discretionary forms of assistance (such as community care grants and crisis loans), these will be replaced by local authority measures.

Much of the detail of the impact of these proposals will be determined in secondary legislation, including, importantly the operation of proposed hardship safeguards.

18. I would be grateful if you could provide a fuller explanation of the information provided by the Government on the likely compliance with Article 3 ECHR of the proposals in the Bill, including fuller information on the safeguards outlined in the Explanatory Notes (see Explanatory Notes, para 705). In particular:

a.  please explain the Government's view that the imposition of a sanction leading to a reduction in benefit will not be "treatment" for the purposes of Article 3 ECHR;

b.  please provide further information on how the proposed hardship regime will operate;

c.  please explain what "other means of support will be available where necessary to ensure compliance with Article 3"; and

d.  please explain how the Government's understanding of these measures and the power to make payments on account has informed the Government's understanding of the likely compatibility of the operation of these measures with Article 3 ECHR. (We understand that the measures which are intended to replace discretionary social fund payments are not yet settled.)

19. In light of the relevance of the operation of the hardship regimes proposed in the Bill for the impact of the Bill in practice on the rights of individual claimants, I would be grateful if the Government could provide us with further information on the operation of the existing hardship regime which operates in connection with sanctions associated with other benefits. In particular, I would be grateful if you could provide us with annual statistics on the number of applications made for support under the hardship regime (and the overall number of cases where sanctions have been imposed); and how many of those applications have been successful.

g) Universal Credit

A number of specific questions were raised in the House of Commons about the operation of Universal Credit in order to better ascertain whether there is a risk that these provisions will operate in a way which may lead to discrimination. These included:

a.  whether the proposal to time-limit contributory elements of Employment Support Allowance (and the equivalent Universal Credit) may have a discriminatory impact on disabled people and women when calculation of eligibility for means-tested elements of the allowance may depend on the income of a family carer or a primary earner;

b.  whether the calculation of eligibility for Employment Support Allowance (and the equivalent Universal Credit) by reference to household income will have a discriminatory effect on disabled people and particularly on disabled women;

c.  whether the absence of information on the availability of support for childcare creates a risk that it is impossible to assess whether the provisions in the Bill might operate in a manner which has a discriminatory impact on low-income working families and particularly women in low-income working families;

d.  whether the proposed cap on housing benefit (and the housing element of Universal Credit) will have a discriminatory impact on disabled people;

e.  whether the proposed cap on Universal Credit may have a discriminatory impact on disabled people;

f.  whether the imposition of either of these caps is likely to lead to an increased likelihood of homelessness and whether appropriate safeguards are in place to protect vulnerable people from destitution; and

g.  whether the proposal to pay Universal Credit directly to one person per household has the potential to undermine the independence of disabled people.

The Government has provided detailed policy responses to each of these concerns during debates. We have asked more detailed questions about the impact assessments conducted by the Government in this correspondence. We would be grateful if you would like to add anything to the Government's earlier responses to concerns raised during the House of Commons debates (or by NGOs and others) about the potential for the operation of the Universal Credit to have a discriminatory impact on people or groups with protected characteristics (including women and disabled people).

h) Personal Independence Payments

A number of issues have been raised during debate in the House of Commons and in written evidence to our inquiry on the right of independent living for disabled people about the removal of Disability Living Allowance (DLA) and the operation of the Personal Independence Payment. These include:

a.  what steps has the Government taken to involve disabled people and disabled peoples' organisations in the development of its proposals for PIP, as required by Article 4 of the UN Convention on the Rights of Persons with Disabilities;

b.  whether the proposal to remove the mobility element of PIP (currently DLA) for disabled people in residential care will undermine the ability of the UK to meet its obligations under the UN Convention on the Rights of People with Disabilities (Clause 83);

c.  how will support for carers be determined after the implementation of the PIP;

d.  whether the application of regular assessments of eligibility for PIP will be applied in a way which interferes with the right of disabled people to respect for private life and personal integrity; (A number of concerns have been raised about the impact of regular assessment on the health of disabled people when considered in connection with the costs associated with regular assessment of those with long-term or permanent impairments.)

e.  how disabled children will secure support to ensure that they can secure their rights under the UN Convention on the Rights of Persons with Disabilities (children will not receive PIP); and

f.  whether the proposed change to the qualifying period (which will require disabled people to illustrate that they have been affected by a disability for 6 months and are expected to continue to be disabled by that impairment for a further six months) could leave disabled people without support, create further risks to health and undermine the ability of the UK to meet its obligations under the UN Convention on the Rights of Persons with Disabilities.

The Government has provided detailed policy responses to each of these concerns during debates. We have asked more detailed questions about the impact assessments conducted by the Government in this correspondence. We would be grateful if you would like to add anything to the Government's earlier responses to concerns raised during the House of Commons debates (or by NGOs and others) about the potential for the operation of the PIP to have an adverse impact on disabled people. In particular, could you set out the Government's response to criticism that certain aspects of PIP could have a retrogressive impact on the rights of disabled people which could be inconsistent with the UK's obligations under the UN Convention on the Rights of Persons with Disabilities.

i) The right to a fair hearing (Article 6 ECHR)

In the Explanatory Notes accompanying the Bill, the Government explains that "there will (as now) be a right to appeal against any decision to apply a benefit sanction as a consequence of a failure to meet a work-related or connected requirement (Explanatory Notes, paragraph 708).

20. I would be grateful if you would confirm that the imposition of any sanction under Bill will be subject to appeal. If so, please explain why Clauses 126, 27, 46, 49 and 54 need not be amended to provide that the relevant Regulations should provide for an appeal to the first tier tribunal in connection with the imposition of any sanction associated with Universal Credit, Employment Support Allowance or Job Seeker's Allowance.

21. I would be grateful if you could provide us with annual statistics on the number of sanctions decisions subject to appeal, including the number of appeals which are successful and the number of appeals which are rejected.

Clause 100 is designed to reinstate a rule which existed prior to the abolition of the specialist social security appeal tribunal. This would allow the Secretary of State to change or "supercede" a decision of the tribunal in limited circumstances. The Explanatory Notes explain that this change would be to take into account changes of circumstance and could be beneficial or detrimental to the claimant. The Explanatory Notes explain why the Government considers that this proposal is compatible with Article 1, Protocol 1 ECHR. They do not however address the application of Article 6 ECHR. Article 6 ECHR and the right to a hearing by an independent and impartial tribunal applies to the decisions taken in connection with eligibility for benefits. Article 6 ECHR generally requires a determination by the relevant tribunal to be final and not subject to administrative revision in order to satisfy the requirement for a fair hearing.

22. Please provide a fuller explanation of the Government's view that the provisions in Clause 100 which reinstate the power of the Secretary of State in connection with the supercession of tribunal decisions is compatible with Article 6 ECHR.

i) The right to respect for private life (Article 8 ECHR): Information sharing

Clauses 123-128 of the Bill introduce various measures designed to simplify the sharing of information in relation to taxation and the administration of welfare benefits. The sharing of personal information provided by a person for one purpose (for example, medical information necessary to perform an assessment of their eligibility for benefits or information about education and work history or income, savings or capital) for another purpose engages the right to respect for personal information protected by Article 8 ECHR.

The Government expresses its view that these provisions "will be exercised compatibly with Article 8". Where Article 8 is engaged the Government considers that the provisions will operate proportionately to the legitimate aim of safeguarding the economic well-being of the country and the protection of health. The Explanatory Notes provide no explanation of the Government's reasons for this view.[66]

23. Please provide a more detailed explanation of the Government's view that the proposed information sharing gateways in Clauses 123-128 of the Bill will operate in a manner which is compatible with Article 8 ECHR. In particular, please provide details of any relevant safeguards which will be in place to ensure that the information shared between public authorities and private contractors will be handled in a manner which is compatible with the Data Protection Act 1998 and Article 8 ECHR.

24. Has the Government consulted with the Information Commissioner about the scope of the information sharing gateways proposed in Clauses 123-128 of the Bill?

k) Child Poverty: The Social Mobility and Child Poverty Commission

Our predecessor Committee welcomed the introduction of the Child Poverty Act 2010 as a positive measure designed to help meet the UK's obligations to secure an adequate standard of living for children. Clause 135 makes provision for the creation of a Social Mobility and Child Poverty Commission and was introduced as a Government amendment during House of Commons Committee Stage.

25. We would be grateful if the Government could provide an explanation of how it considers the Social Mobility and Child Poverty Commission will help meet the UK's obligations under the International Covenant on Economic and Social Rights and the UN Convention on the Rights of the Child to secure an adequate standard of living for children and their families.

26. Please also explain how the other changes in the Bill to the Child Poverty Act 2010— including the removal of the duty on the Secretary of State to report to Parliament—will help meet the UK's obligations under the International Covenant on Economic and Social Rights and the UN Convention on the Rights of the Child to secure an adequate standard of living for children and their families.

l) Reservations to the UN Convention on the Rights of Persons with Disabilities: Capacity and Benefits Nominees

On ratifying the UN Convention on the Rights of Persons with Disabilities, the UK entered a number of reservations. A number of these were criticised by the predecessor JCHR. However, the predecessor JCHR accepted that a reservation on ratification was necessary in connection with Article 13 of the UN Convention on the Rights of Persons with Disabilities (UNCRPD) (Access to Justice) in connection with a deficiency in the law, which failed to provide an opportunity for review in connection with the appointment and conduct of benefits appointees. At the time, the then Government reassured the JCHR that it intended to resolve this inconsistency and remove the reservation. The JCHR welcomed this undertaking and regretted the delay at that time (two Welfare Reform Bills had been considered during the process of ratification).

In the draft Report to the UN on the Convention, the Government explains:

The Government has therefore been developing a proportionate system of review to address this issue. Disabled people have been involved in the design and pilot. Design work will be completed in July 2011. Once the system is introduced consideration will be given to removing this reservation (see paragraph 79).

27. I would be grateful if you could provide us with an update on the Government's position on the UK reservation to Article 13 UNCRPD. In particular:

a.  please provide further information on the progress of the design and piloting of the proposed system of review;

b.  if "design work" is due to be completed in 2011, please provide a target timetable for legislating to introduce a review mechanism which is compatible with Article 13 CRPD;

c.  in the light of this timetable, is there any prospect that these reforms may be introduced as late amendments to the Welfare Reform Bill?

d.  if not, can the Government explain why the timescale for design of the relevant procedures have been so lengthy as to preclude their introduction in this Welfare Reform Bill?

e.  After the introduction of legislation on this issue, does the Government intend to remove the UK reservation to Article 13 UNCRPD? If not, please provide an explanation.

We would be grateful for a response by 5 September 2011, in order to allow the Committee to consider its views in advance of the Bill's Committee Stage in the House of Lords. I would also be grateful if you could provide me with a Word version of your response to aid with publication.

20 July 2011


64   http://www.publications.parliament.uk/pa/ld201012/ldselect/lddelreg/182/18202.htm Back

65   http://www.publications.parliament.uk/pa/jt200809/jtselect/jtrights/78/7804.htm#a3(See for example, paragraph 1.21). Back

66   EN, paras 715-717. Back


 
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