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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