Children’s Wellbeing and Schools Bill

Lord Wei Excerpts

Thursday 18th September 2025 Lords Chamber

[Baroness Longfield (Lab)]

My Lords, I will speak in support of Amendments 469 and 470, and I thank my noble friend for making such a strong and clear case for why they are important.

As a former Children’s Commissioner who worked very much within the framework of the UNCRC as the legal person required to promote and support children’s rights, the Committee will not be surprised to hear me speaking up for these amendments. As part of that role, I met children’s commissioners and Governments from around Europe and the rest of the world. They were at different stages of having regard to the UNCRC, but it was very clear from all my conversations with those who had taken the step towards incorporation—senior members of Government and others working in the public sector and wider society—that this was an important declaration for their country and for how they viewed themselves.

I am proud of the work that this Bill, as well as the wider work of government, is putting forward to make children a much more central commitment in decision-making. These amendments would offer a next, important step. However, the discussion around this can often become quite legalistic and technical, which sometimes distracts. We need to get to the heart of what this is about: making sure that we have a consistent focus on how we, as a nation, put our children first. We know that what happens in childhood will have an impact throughout the whole of life—and that impacts at the heart of who we are as a nation.

Children do not fit neatly into government departments; no one at the Cabinet table exclusively represents the best interests of children. Children do not vote, so they often get missed out in key moments of decision-making, and, as we know, they are most likely to fall through the gaps. In short, it is very easy for children to be overlooked and to fall between the departments and decision-makers who are making policies.

Children’s rights impact assessments can strengthen that move. They may sound technical and bureaucratic, but, again, this is about ensuring that decisions are made in the round and these issues are considered. We most seriously felt the lack of that during the pandemic, when decisions were made that were not in children’s best interests and there was no framework for wider consideration. Many departments undertake impact assessments, but I do not think that they yet have the status or consistency needed across government. During the pandemic, we saw other countries, such as Scotland and Wales, putting forward impact assessments on decisions made about children that considered wide-ranging issues, from economics to schooling and health, to ensure that children’s best interests were looked at in the round. It did not mean that those things could not be improved, but it meant that there was a consistent framework for consideration.

That is what I am putting forward for consideration today: that we take the next step to look at strengthening the framework, within government and our legal system, that puts children on a firm footing—not only in emergencies but in day-to-day life. We must have the ambition of putting children first in all the decisions we make, to ensure that we are not holding them back and that their best interests are taken into account.

[Lord Wei (Con)]

My Lords, I will speak to Amendment 502YP, which stands in my name. This amendment goes to the heart of how government power is exercised in the Bill. It would require the Secretary of State, when issuing guidance and reviewing parental appeals, to act in a manner that is substantively fair, proportionate and consistent with the best interests of the child while also taking into account the burdens that they might impose on families and parents.

Why is such a provision necessary? It is not enough for Ministers to draft guidance that looks acceptable on paper or to frame decisions in language that appears compatible with human rights law. What matters is how these powers operate in practice and how they impact parents and children, and other stakeholders in their daily lives.

Too often, many innocent families that I have spoken with experience the gap between theory and practice. They are told that regulations are light-touch, yet find themselves deluged with data requests, threatened with attendance orders or subject to investigatory processes that are often triggered not by evidence of harm but by mere administrative suspicion. From my work with home-educating families, I have heard repeatedly of parents treated as problems to be managed rather than partners in their child’s learning and well-being. That is not safeguarding; it is coercion disguised as oversight.

I understand that the guidance-led approach and strategy that the Government have taken is a means to try to block loopholes both now and into the future, but I urge the Minister and the department to think about the costs that this Henry VIII-led approach impose. For many families who find themselves on the wrong side of an investigation—and let us remember that the majority of investigations never lead to a conviction —it imposes huge court fees and requires them to set aside years of their lives to fight for their rights. It puts costs on to ordinary citizens. This amendment seeks to ensure that courts, when reviewing such actions, look beyond the fine words of official guidance to their real-world effect.

Does the policy genuinely protect children, or does it impose burdens that are unnecessary, unfair or disproportionate? Does it still respect the primacy of parents under Section 7 of the Education Act 1996, or does it erode it by stealth? The principle of substantive fairness is well established in case law. The Supreme Court has affirmed that state interference with family life must be proportionate, necessary and justified by evidence of significant harm. In R (W) v Birmingham City Council, the court stressed that suspicion alone is insufficient to override parental decision-making, and in Strasbourg jurisprudence, cases such as TP and KM v United Kingdom, and Folgerø and others v Norway, make clear that formal compliance with Article 8 is not enough if, in practice, families are subjected to arbitrary or excessive state interference.

This is not only about legal safeguards but about rebuilding trust. Parents must have the confidence that when the Secretary of State issues guidance it is designed to support, not to harass, empower or intimidate. They must know that appeals will be judged not by a tick-box reading of regulations but by a substantive assessment of what is fair, proportionate and in the best interests of their child.

To use one example, guidance might say that local authorities may request information as necessary. On its face, this sounds reasonable, but in practice families have reportedly been asked for intrusive details about their beliefs, philosophies or private lives—information far beyond what is needed to confirm that a child is receiving a suitable education. Under my amendment, the court would be obliged to ask not just whether the words of the guidance seem lawful but whether its application crosses the line into disproportionate intrusion.

Let us also consider parental appeals. Without a substantive fairness test the Secretary of State could uphold decisions that technically meet the letter of the law or guidance but are manifestly unjust, such as refusing deregistration when a child is in acute distress or supporting disproportionate monitoring conditions that make family life untenable. This amendment would require that such decisions be tested against their effect on the ground.

Some may fear that this opens the door to endless litigation. I would argue the opposite. By embedding the principle of substantive fairness from the outset, we give clearer guidance to decision-makers, reducing the scope for arbitrary or heavy-handed action and thus reducing the likelihood of judicial review. It is precisely when parents and families feel trapped, unheard and mistreated that they resort to the courts.

This amendment is not limited to home-educators; it will protect all families affected by the Bill. Schools will also benefit if guidance remains targeted and proportionate rather than bloated with impractical demands. Local authorities, often stretched to breaking point, will be shielded from the impossible task of enforcing rules that look neat in Whitehall but are unworkable on the ground.

It also respects the proper role of Parliament—of this place. Too often, we legislate with the assumption that the department will interpret and apply the law reasonably, but when guidance becomes overreaching or unfair, it is our reputation that suffers. This amendment restores a crucial check, ensuring that actions under the Bill are judged by their substance, not their spin.

Finally, I stress that this does not prevent the Minister issuing robust guidance where children are genuinely at risk. It requires that such guidance be necessary, proportionate and practically implementable without undermining parental and family rights. That is exactly the balance struck in our domestic law and by the European Court of Human Rights: protection where there is evidence of harm but restraint where there is not.

If we pass the Bill without such safeguards, we risk embedding a culture of formal compliance that is blind to lived reality. We risk measures that look lawful and feel great about them, but that feel unjust. In doing so, we risk losing the trust of the very parents, families and children whose partnership we need to safeguard children’s lives effectively.

Amendment 502YP offers a principled, proportionate solution. It ensures that the law is not just words on paper but fairness in practice. It strengthens oversight, protects families and upholds the integrity of our child protection and education systems. I commend it to the Committee.

[Baroness Butler-Sloss (CB)]

My Lords, I support Amendments 469 and 470, particularly the speech of the noble Baroness, Lady Longfield, who has such experience.

I should like to concentrate briefly on listening to the child. In 1987-88, I chaired the statutory inquiry into the Cleveland child abuse. I heard, with my assessors, a lot of videos of children being interviewed. It was extraordinary how even very young children of five or six were able to give astonishingly accurate accounts of what had happened to them and what they wanted done. The older children were explaining not only how they had been interviewed but how they wanted their voices to be heard, and they were not being heard.

In my recommendations, I pointed out that children were people and not packages. That idea, that children are people entitled to be heard, does not mean that they are entitled to have what they want done—it may not be appropriate—but it is crucial to hear what they want done.

It seems to me that these two amendments put on the statute book part of the very important United Nations Convention on the Rights of the Child, which has been referred to frequently today. It is a bit odd that we have not embraced it fully in English law, though it is embraced in other parts of the United Kingdom. It is very odd indeed.

What really matters it that what children want should be heard. They should be listened to, and what they need and want should be evaluated. That is why these two amendments are so important.

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[Lord Wei (Con)]

My Lords, my Amendment 502YQ is mainly to probe the Government’s intention in relation to their own use of data regarding this Bill. This amendment addresses an issue that has surfaced repeatedly in our many debates: the scope of data collection about children in education. We have heard a lot today about the role of technology providers, but I want to turn the focus to how we are collecting data within the education system in government.

My amendment would ensure that personal data may be collected, retained or processed only where it is strictly necessary to protect a child from significant harm, as defined in Section 31 of the Children Act 1989. Why is this needed? The Bill as drafted gives wide latitude to local authorities and the Secretary of State to demand data on children not in school—an area that I really care about—as well as potentially on others. In particular, the data demanded of children not in school—we have already heard about the amount of data that is already collected on children in school—is off the scale. We are told that this is for safeguarding, but safeguarding has a very specific meaning in law. It is not a licence for limitless information gathering; it is a duty to act when a child is suffering or likely to suffer significant harm.

Clause 31, for instance, invites local authorities to gather information far beyond what is necessary. Names, addresses and dates of birth are sufficient to identify a child and discharge oversight duties. However, the Bill’s wording allows for much more, including details of parental and children’s beliefs, educational philosophy, supplementary providers and even protected characteristics. This, to me, is mission creep, not proportionate oversight. As the department has itself acknowledged in past consultations, the bare minimum of data suffices to track children and ensure that no one falls through the net. To demand more because it might be helpful is not lawful data processing. Data protection law is clear: collection must be limited to what is necessary for the purpose. Helpful is not enough.

The risks of excessive data collection are not theoretical. Families have already seen sensitive information stored indefinitely, cross-referenced with other records and sometimes shared with agencies in ways that they did not consent to or even know about. One military family with whom I have interacted recounted how their local authority repeatedly contacted the father’s workplace about his children, despite clear instructions not to do so. Another home-educating mother described how, after deregistering a child with special needs, she was followed in public after being wrongly referred to social services. These are not safeguards; they are intrusions to undermine trust.

We must also remember that not all parents in the system are confident or well resourced. Some are vulnerable, fleeing domestic abuse or suffering with SEND bureaucracy. For them, intrusive data demands feel less like protection and more like surveillance. If the state is perceived as hostile, families may retreat from engagement altogether, making genuine safeguarding harder, not easier. That is why my amendment would tie permissible data collection to the Section 31 threshold of “significant harm”, which is already the bedrock of child protection law. It is the line that our courts have drawn between parental primacy and state intervention. Aligning data powers with that line ensures consistency, legality and proportionality.

Proposed new subsection (2) in my amendment would ensure proportionality by limiting data to what was essential for the specific risk identified. If the concern is neglect then collect information relating to neglect; if the concern is radicalisation, focus on that. Do not use safeguarding as a pretext for wide-ranging dossiers on families’ private lives. Proposed new subsection (3) would close off another danger: profiling. We should not be gathering data to build long-term behavioural profiles of children or to monitor families against vague benchmarks of compliance. That is not safeguarding; it is social engineering by stealth. Proposed new subsection (4) would require the Secretary of State to publish clear guidance within six months, so that local authorities, schools and parents know the limits of permissible data collection. That guidance should provide clarity, consistency and accountability.

Some might worry that the amendments would tie the hand of professionals. On the contrary, they would free them to focus on what matters. Instead of drowning in forms and files and data, they could concentrate on children at genuine risk. Excessive data is not neutral; it diverts time, money and attention from where it is most needed.

International law supports this approach. In MM v the UK in 2012 the European Court of Human Rights held that the retention of excessive personal data without clear necessity breached Article 8, while in Ali v the UK in 2015 the court stressed that decisions must be informed by accurate, relevant and proportionate information. We cannot claim compliance with Article 8 if we allow the indefinite harvesting of families’ and children’s private details “just in case”.

The amendment is not only for home educators, though their experience has highlighted this problem in the Bill. It would protect every family in the education system. It would ensure that schools are not turned into data collection points for the state and that local authorities are not saddled with the impossible burden of storing, processing and protecting sensitive information that they do not always need. Above all, it would protect children from being profiled, stigmatised, or surveyed in ways that bear no relation to genuine safeguarding.

In passing the Bill, we must not create a database state by accident. We must legislate with care, remembering that data is not neutral—it is power. It is the new oil, in fact. Used well, it can protect; used badly, it can harm. Amendment 502YQ would ensure that that power was exercised with clear limits, tied to the statutory threshold of significant harm. That is fair, proportionate and faithful to the principles of our child protection law. I commend it to the House.

[Lord Storey (LD)]

My Lords, Covid was certainly the rocket fuel for the growth of educational technology in our schools, which is now accepted as part of the school learning landscape. The UK’s education tech sector is the largest in Europe, spending, as we already heard, an estimated £900 million a year. However, there are real concerns that these amendments seek to address, which is why we will be supporting Amendments 493, 494, 502K, 502YH and 502YI.

The edtech sector is exempt from the Online Safety Act, and adherence to GDPR is inconsistent, to say the least. Large multiuse platforms such as Google Classroom and Microsoft Teams can enhance teaching and school management, but the absence of clear statutory standards leaves children’s education and school cybersecurity often at risk. We surely need a regulated framework to safeguard children’s rights, protect the data and prevent the commercial exploitation of children. We sleepwalked into the development of social media. Now that we see the harm that has been caused, we rush to try to do something about it. There is a strong case for developing a regulated framework to safeguard children’s rights and support schools in making informed and sustainable choices.

I want to respond to what I thought was a very thoughtful contribution by the noble Baroness, Lady Spielman. It made me think that six years ago I had a Private Member’s Bill on essay mills and contract cheating. That is now all for naught, because there are other ways of cheating, and AI helps that considerably.

I had an intern who one day said to me, “Lord Storey, here’s a speech for you”. I said, “Ooh, let me have a look”. I read the speech and thought, “Wow, this is great. I’ll use this”. He told me that it was AI generated. “Really?”, I said. I wondered whether in five or 10 years your Lordships’ House might be a very different place for speeches. Might we all succumb to using not our own thoughts and experiences but AI to generate speeches? Would anybody know in five or 10 years’ time, when the technology will be absolutely spot on?

I want to deal briefly with the amendments in the name of the noble Baroness, Lady Barran. Amendment 502YU concerns reception baseline assessments. The Minister will recall that I raised this in an Oral Question. There is something a little perverse about the youngest children—five year-olds—doing their assessments on a screen. I have a degree of sympathy for the noble Baroness’s amendment, and I hope the Minister can shed some light on it.

Regarding the other two amendments, I know that SEND exceptions are mentioned, but as my noble friend Lord Addington said in his hugely important contribution, it is not either/or. We have to think through these amendments carefully, as there are other issues, not just special educational needs, that we need to be aware of. We do not want to agree something that creates problems for the future.

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[Lord Norton of Louth (Con)]

My Lords, on my count, almost 20 amendments have been tabled to the Bill requiring the Secretary of State within six or 12 months of the Act being passed to promulgate some regulations or undertake a review of a particular provision of the Act. My amendment is more comprehensive and adopts a longer timeframe. It would require the Secretary of State within five years of the passage of the Act to undertake a review of its operation and effect. The wording is the same as that of an amendment I tabled to the Employment Rights Bill and has the same justification.

Post-legislative scrutiny is essential for ensuring that the law we enact meets the various criteria of good law. We cannot know that it does without undertaking a thorough review and, in effect, completing a legislative feedback loop. There is no point in enacting legislation that then fails to deliver what it is intended to deliver and for us to proceed, in essence, in ignorance of its effects.

The case for post-legislative review has been accepted by government since 2008, with a commitment to reviewing most Acts three to five years after enactment. Ministers have variously reiterated that commitment. However, not all departments are rigorous in complying with it. The Government have also introduced a get-out clause saying that there may not be a review if, following correspondence with the chair of the relevant departmental Select Committee, it is agreed that a review may not be necessary. As I pointed out when the noble Baroness, Lady Twycross, reported this, it is not clear how a chair will know that a review is not necessary without undertaking some initial review. It is also not clear why this House is excluded from the process.

As I argued on the Employment Rights Bill, there is a case for putting on the face of a measure provision for post-legislative scrutiny where

“the Bill is large, is complex, makes substantial changes to the law, is contested and has not been subject to pre-legislative scrutiny”.—[Official Report, 24/6/25; col. 223.]

This Bill is clearly substantial, both in length and content, and it makes a major change to educational law in this country—it has been characterised by my noble friend Lord Lucas as striking

“at the heart of the relationship between parents and the Government”.—[Official Report, 20/5/25; col. 173.]

It has clearly engendered strong opinions; we have had extensive debate, with 12 days in Committee, as to its likely effects. It has also been introduced without pre-legislative scrutiny.

Making provision in the Bill for post-legislative scrutiny would enable all the claims made as to the effects of the Bill to be tested. Including such a provision would also help reassure critics of the Bill that there will be such a review. That may help the process of getting the Bill through.

The Minister may say that the amendment is unnecessary given that the Bill will qualify automatically for review three to five years after enactment. Making a clear commitment at the Dispatch Box, putting on the official record that the Bill will be subject to post-legislative review, is obviously valuable; we got such a commitment on the Employment Rights Bill. However, as I pointed out in debate on that Bill, the wording of my amendment derives from the Government’s own amendment to the then Football Governance Bill. The Government, to their credit, accepted the argument for putting provision for post-legislative scrutiny in that Bill and brought forward their own amendment. The grounds for doing so apply in the case of this Bill.

As I say, it would be welcome to have a commitment at the Dispatch Box that there will be post-legislative scrutiny of the Bill, but it will be even better to enshrine it in the Bill. Putting it in the Bill will demonstrate that the Government are confident that they will deliver on what it is intended to deliver. If the Minister resists the amendment, it will be helpful to hear from her how she distinguishes this Bill from the Football Governance Bill in terms of the merits of putting post-legislative scrutiny in the Bill. Does she or does she not accept that good law is a public good? I beg to move.

[Lord Wei (Con)]

My Lords, I rise to speak to Amendments 502YN and 502YR, which stand in my name. These amendments are bound by a common theme: that the powers we create in this Bill must be effective, proportionate and accountable, not only in ordinary times but in moments of crisis, when authoritarian temptations grow stronger.

Amendment 502YN would establish an annual review of all measures introduced by the Bill. Each year, the Secretary of State would be required to test whether those measures are achieving their stated purpose, and whether they are doing so without imposing unnecessary or disproportionate burdens on parents, children, schools, providers, local authorities or the department itself. Where a measure fails, it should be amended or repealed. If no action is taken, within two years it must lapse. This is about accountability cutting both ways. Families, schools and community groups—huge numbers of stakeholders—are being asked in this Bill to account for children’s education. It is only fair that the Government should account for the laws they pass.

We have been warned many times in these debates about the dangers of excessive bureaucracy and mission creep. Clause 31, the proposed register of children not in school, illustrates this risk. In principle, such a register may help identify who is being educated outside mainstream settings. In practice, the Bill demands far more data than is needed. In Portsmouth, more than 70% of home-educated children have already been served notices or orders annually, compared with a national average closer to 1%. That is not proportional oversight; it is overreach.

The effects ripple outward. Children suffer when teachers, social workers and SEND staff are forced to spend more time filling in forms than supporting them, and parents are treated with suspicion, not because of evidence of harm but because they made a lawful choice to educate differently. Schools themselves may be dragged down by compliance checks that drain morale and resources. Providers and tutors may be chilled by one size fits all rules designed for large institutions but applied indiscriminately. Community groups and charities—often the lifeline for struggling families and children—will find scarce volunteer time consumed by licensing and paperwork.

We have seen where such unchecked bureaucracy leads. The contact point database was launched with the best of intentions to safeguard children. It collapsed under its own weight: disproportionate, unworkable and ultimately abandoned. Scotland’s named person scheme likewise promised protection but in practice extended excessive authority and intrusive data collection before being struck down. These are cautionary tales of what happens when there is no obligation to review and no sunset clause to cut away what does not work.

Yet the risks are not only of inefficiency; there is something deeper. Bureaucracy when excessive is not neutral. It becomes a means of control. It erodes freedom, not by open coercion but by endless demands that exhaust and intimidate until families, schools and communities yield.

That is why Amendment 502YR is so important: it recognises that powers created in good faith can one day be misused. It would require that, within six months of Royal Assent, the Secretary of State ensures that a mechanism is ready so that, in any national emergency or period of authoritarian governance, the courts, not Ministers, retain the final authority to uphold the primacy of parental rights in their children’s education.

We cannot ignore the geopolitical context. Across Europe and beyond, we see the rise of extremes on both left and right. Authoritarian Governments rarely declare themselves at the outset; they grow by increments, often beginning with education. They use registers and guidance powers, not to support families but to control them. They impose ideological curricula, marginalise communities of faith and stifle innovation and dissent in the classroom. Disturbingly, elements of this Bill draw inspiration, whether knowingly or not, from an unlikely and troubling source. The original departmental human rights justification cited to justify state intervention in home education here arose from a case in Germany where a home-educating parent was prosecuted under laws dating back to the 1930s. These laws, introduced under Hitler’s regime, continue today to ban home education outright in Germany. It is sobering that our own debates now echo arguments first made to defend a system designed not to protect children but to eliminate educational pluralism—one that our own national wartime Government in the 1940s sought to fight by giving parents the ultimate say over their children’s education.

We must not follow that path. We must not allow powers framed as safeguards to evolve into machinery that stifles freedom. This is not to deny the state its proper role in protecting children. Safeguarding is vital, but safeguarding fails when systems chase compliance instead of risk: when form filling replaces human judgment, when bureaucracy itself becomes the end rather than the means. In such a climate, children most in need are overlooked while families acting responsibly, and schools, are burdened and alienated.

The two amendments before us are modest disciplines against such outcomes. The first creates a feedback loop: Parliament learns from the real-world impact of its laws and corrects course where necessary. The second ensures that, when times grow dark, there is a constitutional anchor, that courts can guard against authoritarian misuse, ensuring that parental primacy in education is never extinguished by bureaucratic or dictatorial creep.

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Of course, the Government will take action if the post-implementation review of the Bill as per the Better Regulation Framework identifies that objectives are yet to be met or improvements could be made, but it would not necessarily be proportionate to repeal measures or make legislative changes in the way in which this amendment proposes. The Government would quite reasonably want the flexibility to consider the best course of action—

[Lord Wei (Con)]

I thank the Minister. On my understanding, having spoken to those who know about the workings of the Regulatory Policy Committee, which the Minister said greenlit the Bill, in the last few years it has not been allowed to ask for submissions, on receiving a draft Bill, to scrutinise whether that Bill fits within the kind of good regulatory framework that we all would like to see. So the information that it had to greenlight this Bill was very limited indeed. If you cannot ask people what they think of the Bill, obviously any information you have is very limited and you can only go on what you have been given, which is further ammunition for the point that the Bill needs a lot of scrutiny, because it did not really have any before it was brought before this House.

[Baroness Smith of Malvern (Lab)]

The Regulatory Policy Committee had the benefit of our published regulatory impact assessment to review. Wider comments about the efficacy of the Regulatory Policy Committee are for the noble Lord to make to the Regulatory Policy Committee, rather than using it as a stick to beat this particular Bill. Frankly, as we are coming to the end—nearly—of day 12 of Committee on this Bill, the idea that it has not had sufficient scrutiny is laughable, given the time and care that was also spent in the other place, which has been massively exceeded by the time and care that has been spent by noble Lords in this House during the course of this Committee.

[Lord Wei (Con)]

Just to clarify, the words I used were, “before it was brought before this House”. The reason it has had so many days of scrutiny is because it was not drafted in a way that was appropriate. We have spent so much time on it. We cannot believe how many nights and days we have all had to work on this. If we could have Bills in future that had a bit more effort put into their drafting by policymakers and others, we could use the time of this House really well. I am not in any way criticising or saying that the work of this House is wasted. In fact, it has been very necessary to get us to where we are today.

[Baroness Smith of Malvern (Lab)]

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.