Lord Watson of Invergowrie (Lab)

My Lords, if my Amendment 505C appears something of an outlier, it is only because it is. It would have been more appropriate for it to have been introduced in Part 1 of the Bill, but I have to be honest and say that, at the time, I was unaware of it as an issue. Being even more honest, I have to say that, had I been following the progress of the Mental Health Bill, I might well have been. I acknowledge the assistance of the clerks in the Public Bill Office for finding me a peg on which to hang this, and also the assistance of JUSTICE, the law reform charity, for briefings and context. Whatever the view of noble Lords on the contracting out of vital public services, I am confident enough to say that nobody on any side of your Lordships’ House wants people to be treated less decently and with fewer human rights because a service is being provided by an outside contractor rather than directly. The Human Rights Act is an essential tool for individuals to hold public bodies to account. It requires public authorities to act in compatibility with the rights set out in the European Convention on Human Rights, and this definition of a public authority has been narrowly interpreted by the courts. In a 2008 case, it was found that a private care home was not a public authority, despite the plaintiff’s placement being funded entirely by that local authority. The years since then have of course seen a large expansion of core government services contracted out to the private sector, leading to an accountability gap in our human rights legislation. In the care sector, more than 80% of children’s homes are now run by private companies. That is an increase of 20% since 2010, and the figure continues to rise. In 2014, an attempt was made to fill that accountability gap for care provision with the Care Act of that year. The then coalition Government made it clear that “it wishes all providers of publicly arranged care services to consider themselves bound by the Human Rights Act, including private providers under contracts with local authorities”. But a 2024 case demonstrated that this was not sufficient. A man with chronic and treatment-resistant schizophrenia, whose care and treatment had been funded by a combination of Manchester City Council and an NHS trust, sadly died. His family brought a claim against the private nursing home provider and the trust, arguing that his death had resulted from the private provider’s breaches of the Human Rights Act. However, the High Court struck out the human rights aspect of the claim, ruling that the man’s circumstances fell outside the scope of the provisions of Section 73 of the Care Act 2014. That ruling highlights significant wider concerns for commissioned children’s health and social care services—although they are not covered by Section 73 of the Care Act because, as things stand, a private provider does not have human rights obligations to children in their publicly funded care. This is particularly important given the scale of outsourcing in the children’s social care market. Some 90% of children’s social care services shut down by Ofsted for not meeting standards to protect children, or where there was evidence of harm, are operated by private organisations. Since four out of five children’s homes are operated by for-profit companies, there are reasons to be concerned about how well children’s human rights are protected in that social care sector. Children’s care settings provide services to some of the most vulnerable children in our society, and the Children’s Commissioner said in highlighting this last year: “Children in care have the most prescribed rights in law, and yet these rights are often the least reflected in their experience. … We cannot meet children’s rights unless our public services are of sufficient quality to provide what children need”. In January, when the Bill had its Second Reading in another place, the Minister of State said that the Bill would “stop vulnerable children falling through the cracks in our services”.—[Official Report, Commons, 8/1/25; col. 953.] The Human Rights Act is a crucial safeguard for individuals up and down this country on a day-to-day basis, especially for those with vulnerabilities who rely on the state. As the Care Quality Commission set out in 2023, a focus on human rights “ensures people receive good care and helps us fulfil our duties and purpose by meeting our legal obligations”. However, people do fall through the cracks, and not just young people. The uncertainty in the law means that private providers may have no direct statutory obligation to act compatibly with children’s ECHR rights and that children—and, by definition, their families—may have no direct remedy against private providers for human rights violations. The Bill is an important opportunity to extend human rights protections to all those in commissioned children’s care, irrespective of who the provider is. It is not sufficient to say that it may be possible for a claim to be brought against a local authority. Why should parents be required to do that? The Joint Committee on Human Rights dealt with this during the passage of the Care Act 2014, making it clear that: “The inadequacy of such indirect protection has long been a matter of consensus in debates and reports about this issue”. It has also been a cross-party position for many years that those in publicly funded care deserve full human rights protections and that providers must be directly accountable for breaching human rights, as was demonstrated by the cross-party support for changing the law through the Mental Health Bill earlier this year. During Report of that Bill in your Lordships’ House, when my noble friend Lady Keeley proposed an amendment on adult mental health care and treatment, the Minister—my noble friend Lady Blake—said that the Government were “particularly conscious of the references to children’s services”, and that it was “an issue that we have, of course, been discussing with the DfE”.—[Official Report, 2/4/25; col. 337.] My noble friend pledged to take the matter forward, and she did so very effectively, because it resulted in what is now Clause 52 of that Bill, which amends the Human Rights Act 1998 and states, “A registered care provider is to be regarded for the purposes of section 6(3)(b) of the Human Rights Act 1998 as exercising a function of a public nature in providing any of the services mentioned in subsection (2) (to the extent that it would not otherwise be so regarded)”. The Children’s Wellbeing and Schools Bill is, as I said, an important opportunity to ensure that all private providers of children’s services commissioned by local authorities, whether in social care, education or disability-related services, are treated as public authorities under the Human Rights Act. I very much hope that my noble friend the Minister will signify that the Government intend to follow the lead of her Ministerial colleagues on the Mental Health Bill when this Bill reaches Report. If she is unwilling or unable to do so, I hope that she will arrange for the statement called for in Amendment 505C to be published.