PROCUREMENT AND HUMAN RIGHTS: AN
to the Guidance and to human rights in general have notably been
omitted in other Government documents on public services and procurement.
For example, BIHR notes that there is no mention of the Guidance
in the Care Services Improvement Partnership Guide to Fairer
Contracting, for local authorities and joint commissioning
bodies on care placements and care services.
The Charities Commission referred us to the written Compact between
Government and the voluntary sector on procurement.
The Compact Code of Practice on Funding and Procurement makes
no reference to this issue, to the ODPM Guidance or to human rights.
We note that there is no reference to public procurement and Human
Rights in the new "handbook" for Public Authorities,
Human Rights, Human Lives, nor is there any cross reference
to the DCLG Guidance.
There is no reference to human rights in the Treasury vision for
public procurement Transforming Public Procurement,
or in the Guidance Note on Social Issues in purchasing, issued
by the Office of Government Commerce.
Similarly, there is no reference to human rights or the implications
of the judgment in Leonard Cheshire in the recent Government
Action Plan for Third Sector Involvement in Public Services, Partnership
in Public Services, which aims to simplify processes which
apply to the commissioning and procurement of services from the
voluntary and not-for-profit sectors.
We note that a proposed model contract developed by the Department
of Health's Third Sector Commissioning Task Force, which proposes
a standard model for use across health and social care commissioning,
does not refer to the ODPM Guidance, to human rights or
the responsibilities of the contracting parties under the HRA.
58. We are concerned that major Government initiatives
on human rights and on procurement for the provision of public
services continue without reference to the implications of the
HRA for private sector bodies performing public functions. We
do not consider that any Guidance on contracting for public services
and human rights can have any significant positive impact on the
protection of human rights if it is not mainstreamed.
59. We consider that, as drafted, it is highly unlikely
that the Guidance issued by the Government will enhance the protection
offered to the human rights of service users when public services
are contracted out. We are disappointed that the Guidance fails
to grapple with the issue of standard or model contract terms.
We recognise that the Guidance tries to balance the public interest
in securing best value services and ensuring, in accordance with
the intention of Parliament, that those providing public services
under contract respect the Convention rights of service users.
Unfortunately, the Guidance appears to be based on the assumption
that the public interest is principally served by ensuring that
service providers remain willing to contract at a competitive
price, with any agreed measures for the protection of human rights
being an additional bonus. We consider that without further
significant joint efforts on the part of the Department for Constitutional
Affairs and the Department for Communities and Local Government,
this Guidance will continue to fail to have any significant impact
on the protection of human rights.
60. In a recent debate on the Government's Common
Values, Common Sense campaign for the HRA, the Parliamentary
Under-Secretary of State for Constitutional Affairs, Vera Baird
MP, told the House of Commons that the Government recognised that
the protection of human rights through contract was a "poor
substitute" for the direct application of the HRA to functional
public authorities, as intended by Parliament. However, she stressed
that the Government consider that there is "little doubt"
that human rights can be enforced in this way.
We reiterate the conclusions of the first MPA report. Human rights
cannot be fully and effectively protected through the use of contractual
terms. While Guidance may be useful as a "stop-gap"
to reduce the adverse impact of the narrow interpretation of the
meaning of public authority on service recipients, this Guidance
cannot be a substitute for the direct application of the HRA to
service providers. In any event such Guidance cannot provide any
valuable protection to service users if it is not based on a clear
commitment to mainstreaming human rights, written in accessible
language and accompanied by practical guidance to commissioning
61. We consider the potential for further Government
guidance on procurement to alleviate the practical implications
of the current gap in the law, in Chapter 4, below.
16 First MPA Report, paras 14 - 17. Back
ibid, paras 18-20. Back
 EWCA Civ 366. This case involved the challenge by residents
of the closure of a private care home run by a charitable organisation.
The Court of Appeal held that the organisation, Leonard Cheshire,
was not sufficiently "ensmeshed" in the activities of
the Local Authority commissioning its services to be considered
a public authority for the purposes of the HRA. A further summary
of this case and the relevant legal background is provided in
the First MPA Report, paras 31 - 33 and 39 - 40. Back
First MPA Report, paras 39 - 40. Back
 3 WLR 283. In this case, the Court held that a parochial
church council was not a "pure" public authority. Back
We adopt the conclusion of our predecessor Committee. First MPA
Report, para 42. Back
ibid, para 41. Back
ibid, paras 78 - 85. Back
See for example, Appendix 9 (Help the Aged), paras 11 - 12; Appendix
2 (Mayor of London), paras 2 - 3; Appendix 6 (Baroness Greengross). Back
Appendix 9, para 12. Back
First MPA Report, paras 110 - 134 (Sections 6 - 7). Back
ibid, para 133. Back
Gender Equality Code of Practice for England and Wales, Appendix
A http://www.eoc.org.uk/PDF/GED_CoP_Draft.pdf. Back
Nineteenth Report of Session 2004-05, op. cit., Appendix 4. Back
DCA Review of the Human Rights Act, July 2006, page 28. http://www.dca.gov.uk/peoples-rights/human-rights/pdf/full_review.pdf. Back
Appendix 20, paras 3, 9-13, 18 - 23 and 27. Back
Thirty-second Report of Session 2005-06, The Human Rights Act:
the DCA and Home Office Reviews, paras 86 - 92. Back
Government Response to the Joint Committee on Human Rights'
Thirty-second Report of Session 2005-06, Cm 7011, paras 29
- 30. Back
HC 300-I,Minutes of Evidence taken before the Liaison Committee,
6 February 2007, QQ 48-49; See also Appendix 18 (Letter from Baroness
Launched during the Harry Street Lecture, delivered by the Lord
Chancellor on 9 February 2007: http://www.dca.gov.uk/speeches/2007/sp070209.htm. Back
First MPA Report, para 128. Back
ibid, para 129. Back
Ibid, Section 6. Our predecessors were concerned about
the inability of the beneficiaries of services to enforce contractual
terms and obligations agreed between private providers and local
authorities or central government, see para 115. The first MPA
Report considered the implications of the Contracts (Rights of
Third Parties) Act 1999, but concluded that this Act would not
resolve the difficulties of enforcement of human rights by contract,
nor would it allow contractual obligations in respect of human
rights to act as a substitute for the direct application of the
Appendix 7, para 40. Back
Appendix 5, paras 3.1 - 3.6, Appendix 9, paras 4 - 10, Appendix
12, paras 33 - 36, Appendix 14, paras 15 - 18, Appendix 17, paras
6 - 9, Appendix 22, page 3. Back
Appendix 17, para 9. Back
See http://www.communities.gov.uk/index.asp?id=1161370. Back
Appendix 22. Back
Appendix 17, para 7. Back
Appendix 9, paras 4-10. Back
Appendix 14, paras 16-17. See also Appendix 5, para 3.2 (Age Concern). Back
Appendix 17, para 9. Back
Appendix 17, para 7. See also Appendix 5, para 3.1 (Age Concern). Back
Appendix 22. This Code applies in England to all central Government
Departments, Next Steps Agencies, Non-Departmental Public Bodies,
Government Offices for the Regions, Regional Development Agencies;
National Lottery Distributors; and agencies contracted to distribute
Government funds to the voluntary and community sector. Local
government and local public sector bodies are expected to take
appropriate notice of the principles of the Code as recommended
best practice in their work. http://www.thecompact.org.uk/C2B/document_tree/ViewACategory.asp?CategoryID=44. Back
Human Rights, Human Lives: A Handbook for Public Authorities,
DCA, October 2006. On public authorities and the exercise of public
functions, the Handbook advises that the courts are still deciding
"exactly what this means" , page 60. Back
February 2006, http://www.ogc.gov.uk/documents/Social_Issues_in_Purchasing.pdf. Back
Published, 6 December 2006. Back
Department of Health, Report of the Third Sector Commissioning
Task Force, Part II, Chapter 4, "Standard contracts across
health and social care", March 2006. http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_4137145.
HC Deb, 19 February 2007, col 118. Back