Joint Committee On Human Rights Third Special Report


APPENDIX 7

Letter from the Chairman of the Committee to the Secretary of State for Social Security

SOCIAL SECURITY FRAUD

  The Joint Committee on Human Rights will shortly be deciding whether or not it is necessary to consider the above Bill in detail. To assist with its decision, the Committee would be grateful for your comments on the following points raised by its Legal Adviser. Our starting-point is of course, the statement made under section 19(1)(a) of the Human Rights Act 1998; but I should make it clear that the Committee's remit extends to human rights in a broad sense, not just the Convention rights under the Act.

  Whilst the Committee does not, as a general rule, intend to express any view on the underlying policy issues, its consideration of the Bill will be greatly assisted by an understanding of the factors which have led Baroness Hollis of Heigham to make a statement of compatibility under Section 19 of the Human Rights Act, and more particularly, to conclude that any curtailment of rights under the Convention which the Bill may entail is justified by reference to the wider public policy considerations set out in the Convention.

1.  ACCESS TO INFORMATION AND SHARING OF INFORMATION

  The types of information which may be disclosed under clauses 1 and 2 of the Bill are very extensive, and may be highly sensitive and personal. They include information about health, disabilities, income and wealth, family ties, creditworthiness, indebtedness, education, legal proceedings, utilities bills and service use, and business activities. These clauses thus impact on the right to respect for private life under Article 8 of the European Convention on Human Rights and the Human Rights Act 1998. The power to call for personal information about people purely because they fall into a particular category of people, or are members of the family of a person in that category, thought to be more likely than others to commit offences not only offers weak safeguards against abuse, but also seems to give rise to a risk of discriminatory treatment contrary to article 14 of the ECHR taken together with Article 8, and, potentially, to behaviour inconsistent with values, underpinning the Sex Discrimination Act 1975, Race Relations Act 1976, and Disability Discrimination Act 1995.

  There is no provision for prior authorisation by an independent authority before a requirement for disclosure may be made, and the safeguards offered by the Data Protection Act 1998 are probably excluded because the disclosure is for the purpose of a criminal investigation. Although the Bill demands reasonable grounds before an inquiry could legitimately be instigated, it is not clear how one would tell whether "there are reasonable grounds before an inquiry could legitimately be instigated, it is not clear how one would tell whether "there are reasonable grounds for believing that [a person] is or may be . . . a person belonging to any description of persons who are more likely than others" to commit offences, or a member of the family of such a person (new section 109(2c)(c) and (d) of the Social Security Administration Act 1992, contained in clause 1(2) of the Bill). The range of types of information which can be demanded is unspecified; safeguards are further weakened by the possibility of requiring disclosures in respect of any benefit offence (however minor), and even the possibility that someone might be a member of a group more likely than other groups to commit such offences; and there is no independent, prescribed procedure for assessing the legitimacy of requiring a disclosure, or for informing the data subject at any time that information has been sought, or of the use made of it, to enable him or her to test the legality of the disclosure or use of the information.

  (a)  In the light of this, please would you inform the Committee of your reasons for being satisfied that clause 1 would meet the requirement of Article 8.2 that any interference with a right under Article 8.1 should be in accordance with the law, as that term has been interpreted by the European Court of Human Rights.

  (b)  In view of the proposed power for an authorised officer to require disclosure of information where "there are reasonable grounds for believing that [a person] is or may be . . . a person belonging to any description of persons who are more likely than others" to commit offences, or is a member of the family of such a person (new section 109(2c)(c) and (d) of the Social Security Administration Act 1992, contained in clause 1(2) of the Bill), please would you inform the Committee of your reasons for being satisfied that the process of identifying "descriptions of persons" under these provisions will comply with the requirements of article 14 taken together with Article 8 of the ECHR.

2.  DISCLOSURES TO OVERSEAS AUTHORITIES

  The concerns noted above about the safeguards for personal information required to be disclosed under the provisions of clause 1 of the Bill, carry over to clause 4 on exchange of information with overseas authorities. Onward disclosure of personal information is a new interference with the right to respect for private life under Article 8.1. New section 179a(3) of the Social Security Administration Act 1992 and section 155a(3) of the Social Security Administration (Northern Ireland) Act 1992 would impose a duty on the Secretary of State or Department "to take all such steps as may be reasonable for securing that relevant information disclosed to him [or it] in accordance with the arrangements is not used for any purpose for which its use is not expressly or impliedly authorised by or under the arrangements". However, there is a risk that the arrangements are not sufficiently accessible, authoritative, determinate or enforceable to meet the requirement that an interference with a right be "in accordance with the law" as required by Article 8.2, and there is no procedure for ensuring that any disclosure meets the criterion of being "necessary in a democratic society" for one of the legitimate purposes listed in Article 8.2.

  (c)  In the light of this, please inform the Committee what steps you envisage being taken to secure compliance with the requirements of Article 8 of the Convention in respect of disclosures to overseas authorities.

3.  PENALTIES BY WAY OF REDUCTION OF BENEFITS

  The UK has an obligation under the European Social Charter, Article 13(1):

    "To ensure that any person who is without adequate resources and who is unable to secure such resources either by his own efforts or from other sources, in particular by benefits under a social security scheme, be granted adequate assistance . . ."

  The UK also has an obligation under the International Covenant on Economic, Social and Cultural Rights, Article 11, to "take appropriate steps to ensure the realisation of" the "right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing . . ."

  Under English common law, there is a right to public protection against being left in a state of destitution. This has been applied, for example, to asylum seekers pending a decision on their applications.[10] Since the Human Rights Act 1998 came into force, this right has been bolstered by limited positive obligations on the state to protect the right to health under Article 2 of the ECHR and to protect people against inhuman or degrading treatment or punishment under Article 3. The provisions of the European Social Charter and the International Covenant on Economic, Social and Cultural Rights can legitimately be used as aids in interpreting rights under the ECHR.

  (d)  In the light of this, please inform the Committee of your reasons for concluding that the operation of clauses 6 to 8 of the Bill are compatible with Convention rights under the Human Rights Act 1998, and also of your view as to the compatibility of the provisions with the other international instruments mentioned above.

  Finally, the Committee would like to know, please, what representations you have receive in connection with this Bill in relation to human rights issues, and to what specific points those representations were directed.

14 February 2001


10   Reg v Secretary of State for Social Security, ex parte Joint Council for the Welfare of Immigrants, [1997] 1 WLR 275, CA. Back


 
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