Children and Young Persons Bill [HL]

moved Amendment No. 3: 3: Clause 3, page 3, line 27, at end insert— ““(1A) Any provider of social work services with whom arrangements are made under or by virtue of section 1(1) for the performance of the functions under section 1(2) shall, in the discharge of those functions, be treated as a public authority for the purposes of the Human Rights Act 1998 (c. 42). (1B) For the avoidance of doubt it is hereby declared that nothing in this section affects the meaning of ““public authority”” in section 6 of the Human Rights Act 1998 (c. 42) (acts of public authorities) or the determination of whether functions, other than those referred to in subsection (1A) above, are functions of a public nature for the purposes of section 6.”” The noble Baroness said: The purpose of Amendment No. 3 is to ensure that children receiving social work services from private and voluntary sector providers—should the pilots be concluded and the roll-out happen—would be able to seek redress under the Human Rights Act from the relevant social work service provider and the relevant local authority. Indeed, they need those rights even during the pilot. As the Committee will know, direct enforcement of rights contained in the Human Rights Act can be achieved in the UK courts only against a public authority. Section 6(3)(b) provides that a private body may be a public authority for this purpose where it is carrying out a function of a public nature, but not where it is carrying out a function of a private nature. Those are known as functional public authorities. A series of court judgments have given a narrow interpretation of, "““functions of a public nature””," with the result that individuals receiving services from private and voluntary sector providers under arrangements with local authorities have, on occasion, been unable to rely on their convention rights. The Government recognise that that has led to individuals receiving contracted-out services being unable to rely on their convention rights and have expressed their commitment to seeking clarification of the meaning of ““public authority””. Rather than seeking to address that discrepancy through an amendment to the Human Rights Act—there are legitimate concerns about taking such a course—or ad hoc legislative provision for individual areas of service provision, the Government have, up to this point, relied on interventions in court proceedings, seeking to persuade the courts to adopt a broader interpretation of ““public function”” in line with the original intention behind the Human Rights Act. Unfortunately, those efforts have so far been unsuccessful. The House of Lords, concluded in the recent case of YL v Birmingham City Council that the provision of care and accommodation by a privately run care home to an elderly woman, although arranged and paid for by Birmingham City Council under its statutory powers and duties under Sections 21 and 26 of the National Assistance Act 1948, did not constitute a function of a public nature. The Lords commented that if the Government thought it desirable that residents in privately owned care homes should be given convention rights against proprietors, they should amend legislation to make that clear. That is why, by laying this amendment, we seek to amend legislation in this case. If the Government's policy intention is that children receiving services under arrangements under Clause 1 should be able to enforce their convention rights against both the relevant local authority and the social work service provider, I hope that the Minister will accept our amendment. We understand that, through Clause 3(1), the Government seek to provide that the relevant local authority will be liable for acts of omission by providers of social work services exercising functions under Clause 1. In Clause 3(2)(b), the Government seek to exclude liability for local authorities where providers of social work services are exercising functions of a private nature. This apparently is intended to ensure that the local authority will not be liable for incidental matters, such as treatment of employees by providers of social services. But the Government’s policy intention will be achieved only if their view that a provider of social work services, in discharging the functions of the local authority, will be exercising functions of a pubic nature and can be relied on with certainty on the basis that social work service provision for children, under Clause 1, is distinguishable from the position of the YL v Birmingham City Council case, to which I referred earlier. I believe that this is an area of legal uncertainty. This amendment would achieve significantly better certainty and better protection of children’s convention rights where social work services are contracted out by local authorities. In addition, perhaps I may make one more point which has come to me from the Every Disabled Child Matters lobby group, which seeks assurance that bodies discharging the care functions of a local authority under Clause 1 would also be treated as public bodies for the purpose of the Disability Discrimination Act 1995, as amended, and would be subject to all those duties in that Act, including the disability equality duties. I would be most grateful if the Minister could confirm that. I beg to move.