Contribution
The noble Lord is right that noble Lords have spent considerable hours on this—some more than others, I think it is fair to say.
Amendment 505C, tabled by my noble friend Lord Watson of Invergowrie, seeks assurances, via a published statement, on how the Human Rights Act 1998 applies to private providers of publicly funded children’s social care services. The amendment seeks a pause in the commencement of Clauses 12 to 18 of the Bill until such a statement is made. These clauses cover measures relating to provider and financial oversight, profit caps, Ofsted and Secretary of State powers to impose monetary penalties, and information sharing between Ofsted and the Secretary of State.
I thank my noble friend for bringing important human rights considerations to our attention. Protecting the human rights of all children is of paramount importance, and the Bill is delivering a number of important measures to stop vulnerable children falling through cracks in services. I completely understand the reasoning behind my noble friend’s amendment and would like to provide the Committee with reassurances on the robustness and broad applicability of the human rights legal framework, including for children’s social care services.
Section 6 of the Human Rights Act 1998 makes it unlawful for public authorities to act incompatibly with the European Convention on Human Rights, and this duty extends to private providers when they are performing functions of a public nature. There is no statutory definition of “functions of a public nature”, but relevant factors considered by the courts include the extent to which the body, in carrying out the relevant function, is publicly funded, exercising statutory powers, taking the place of central government or local authorities, or providing a public service. This broad-scope approach is intentional to ensure that a wide range of services can be captured, as appropriate.
Any statement that the Government make, as proposed by my noble friend, would not be legally binding. Whether a provider is carrying out functions of a public nature and is therefore in scope of the Human Rights Act is for the courts to determine, based on the facts in each specific case. However, to be clear, the Government’s position is that, were a court required to decide whether the private provision of core children’s social care services—services that local authorities are legally required to provide—falls in scope of the Human Rights Act 1998, we believe that the court would conclude that they were indeed performing a function of a public nature and would therefore be in scope.
My noble friend has identified the distinction between the approach taken here and that taken in the Mental Health Bill. As he said, the DHSC is making it explicit in that Bill that certain mental health services are deemed to be exercising a public function for the purposes of the Human Rights Act, but those amendments are being made following case law that identified a gap in the application of the HRA to the private provision of the services in question—some of which my noble friend referenced, I think.
No such gap has been identified through case law in relation to private provision of children’s social care services. Therefore, our view is that no clarification of the law is necessary for these services and, as I have emphasised, we continue to be of the view that the private provision of core children’s social care services would be considered to be within scope of the Human Rights Act. I suspect that, in pushing me, my noble friend might say, “Why don’t we take a belt-and-braces approach here, anyway?” The issue is that attempting to provide further specificity around certain services risks other services being unintentionally excluded by virtue of their omission. This is the way, as I understand it, that lawyers tend to work.
I emphasise again that we are content that the Human Rights Act as drafted is flexible enough to capture those functions that need to be within scope of the Human Rights Act 1998. We believe that would be upheld in any case with respect to children’s social care services. It is also important to remember that children’s social care is a highly regulated sector, subject to inspection and accountability processes aimed at keeping children safe and promoting their best interests. The local authority arranging or funding the relevant service would also always be within scope of the Human Rights Act in the exercise of its functions as a core public authority.
On this basis, I hope my noble friend might be reassured. We do not consider it necessary or appropriate to delay the commencement of other important Bill measures that are designed to ensure children in relevant settings are protected. We are confident in the existing legal framework and hope that we have provided the necessary reassurances and statements here today to reassure him. I hope, given my responses, that noble Lords would feel able to not press their amendments.