Dec 132011

12 December 2011

The Joint Committee on Human Rights (JCHR) today publishes its
legislative scrutiny Report on the Welfare Reform Bill.

    Twenty-first report: Legislative Scrutiny: Welfare Reform Bill

Joint Committee on Human Rights

The Report deals with a number of significant human rights issues,
    The thoroughness of the Government’s human rights analysis
    Impact assessments and monitoring

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.  The committee commends 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, and therefore welcomes the Bill as a potentially human rights
enhancing measure. However, it has a number of concerns about its
compatibility with the requirements of human rights law.

The committee regrets the fact that the Government has not provided
Parliament with a full human rights memorandum which includes a detailed
analysis of the Bill’s compatibility with the UK’s obligations under
relevant international human rights treaties. Providing such information
to Parliament strengthens the principle of subsidiarity: laws passed
after detailed parliamentary scrutiny of their human rights
compatibility are more likely to withstand subsequent judicial scrutiny.

The committee calls on the Government to improve its capacity to conduct
equality impact assessments. It reiterates its 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. It also calls upon the Government
better to monitor the post-legislative impact of the measures in the

Although the imposition of conditionality requirements on benefits is
not precluded by human rights law, the committee believes there is a
risk that the conditionality and sanction provisions in the Bill might
in some circumstances lead to destitution, contrary to Article 3 ECHR.
The committee therefore urges the Government to give careful
consideration to this risk and carefully to monitor the impact of the
sanctions regime.

The committee is concerned that some of the proposals in the Bill may be
implemented in a way which could both lead to a discriminatory impact
and also not demonstrate a reasonable relationship of proportionality
between the means employed and the legitimate aim that is sought to be
realised. It considers 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

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 – undoubtedly a legitimate
aim.  However, the committee is concerned about the possible
disproportionate impact on some disabled people.  It therefore
recommends allowing additional discretion to exempt disabled people
facing exceptional hardship from the benefit cap and from the provisions
concerning under-occupation of social housing.

The committee recognises 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.  The committee is therefore 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.  The Bill should be
amended to ensure that the assessment process for PIPs takes account of
the various barriers experienced by disabled claimants.  The committee
recommends a trial period for the new assessment process and a report to
Parliament on the implementation of the new testing system.  However, it
welcomes the Government’s decision to table an amendment to the Bill to
remove the provision which allows for withdrawal of the mobility
component of PIP from residential care home residents.

The committee welcomes the Government’s avowed intention of improving
ministerial accountability for the eradication of child poverty,
although any changes proposed to the current legal framework for
accountability will require careful scrutiny.  It recommends that the
Bill be amended to require the Secretary of State to make a statement to
Parliament responding to the Social Mobility and Child Poverty
Commission’s annual report; and it calls on the Government to commit to
providing an opportunity for Parliament to debate that report and the
Minister’s statement in response.

Dr Hywel Francis MP, the Chair of the committee, said:
    "This is an important Bill and it is vital that the Government take
    on board the committee’s concerns, not least since there is still a
    lack of available detail about the substance of some of the changes
    proposed.  We welcome the Government’s recent decision to retain the
    mobility component of the Disability Living Allowance for residents
    of residential care homes as a sign that it is indeed willing to
    think carefully, in human rights terms, about exactly what it is


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