Children’s Wellbeing and Schools Bill

Lord Watson of Invergowrie Excerpts

Thursday 18th September 2025 Lords Chamber

These amendments ask only that laws be judged by their fruits and that liberties be defended when they are most vulnerable. That is how we protect children more effectively, support families more fairly and preserve freedom more securely. I commend these amendments to the Committee.

[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.

[Baroness Barran (Con)]

My Lords, as we have heard, this group of amendments would introduce a number of reviews of the Bill. Those in the name of my noble friend Lord Wei also seek to limit the new powers in the Bill in relation to elective home-educated children.

Amendment 502C from my noble friend Lord Norton of Louth would introduce a review of the Act after five years, and my noble friend made an extremely articulate and clear case for this. I think my noble friend said that there were already over 20 examples of amendments seeking reviews of different parts of the Bill. Although concerns about Part 2—which we have debated more recently—are certainly uppermost in my mind, those of us with long memories will remember some of the concerns about the pace of and evidence base for the reforms to children’s social care in Part 1.

My noble friend set out some criteria for post-legislative scrutiny: it should be a substantial Bill—I think that, on day 12, we can agree this is a substantial Bill; it should introduce major changes; it has unquestionably been controversial; and it did not have pre-legislative scrutiny. I thought almost the strongest point is that this would allow the Government to demonstrate their confidence that the Bill will deliver on the changes that the Government seek and the impact that the Government desire, so I hope very much that the noble Baroness will be able to accept my noble friend’s amendment.

Amendment 505C in the name of the noble Lord, Lord Watson of Invergowrie, again very ably presented, highlights concerns about the responsibilities of private providers of children’s social care in relation to children’s human rights. Again, it would be helpful to hear the Minister’s response to this. For my part, I suppose I would prefer the Government’s focus to be on the quality of care that children receive when they are in local authority care, in a children’s home or, potentially, in foster care, as in this case. They already have considerable rights enshrined in legislation, as the noble Lord said; what we need is for the culture in those organisations to make sure that children receive the care that they so very rightly deserve.

--- Later in debate ---

[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.

[Lord Watson of Invergowrie (Lab)]

I thank my noble friend for that very full response to Amendment 505C. I am not a lawyer, so I cannot say at this stage whether I accept the reassurance. I would like the opportunity to discuss it with her before Report, perhaps with some legal support on those points. She and her team have clearly gone into it deeply, and I appreciate that.

In closing, my noble friend talked about the extent to which this Bill has been subjected to scrutiny in Committee. I have been here 22 years now, and do not remember any Bill having had 12 days in Committee. I checked and we started this Committee on 20 May, fully four months ago, so I do not think anybody can say it has not had proper scrutiny. I would just like to draw an analogy. My noble friend mentioned earlier that she ran a 10K at the weekend, I imagine that must have felt like a walk in the park compared to steering this Bill through. I thank her and her other ministerial colleagues and Whips for the way in which they have approached it.

[Baroness Smith of Malvern (Lab)]

I am more than happy to meet my noble friend and to bring those legal minds with me that I hope will enable him to be reassured. Given that this is the last group that I will be responding to today, I also thank him for what he has said about this Committee stage. It has been lengthy, but usually carried out in a respectful, amicable and constructive way. For that, I particularly thank the opposition Front Benches and, obviously, my excellent Whip and co-responder my noble friend Lady Blake. I agree with my noble friend that I do not think anybody could say that we have not done our jobs as legislators in this place in well and truly giving this a good going over, and I thank all those who have been involved in that.