Outsourced public services lack oversight, accountability and transparency risking people’s rights, finds this new report
Outsourced public services lack oversight, accountability and transparency risking people’s rights, finds this new report
- Report finds individual service users and their rights are being ignored when services are contracted out
- Central government and local authorities do not have proper information about the quality of outsourced public services and are often unaware of rights abuses until too late
- Contracts do not adequately protect individual service users, and some local authorities are contracting out assessments without even a written contract
- Report calls for move away from hands off approach towards collaborative practices to better uphold people’s rights and meet basic legal duties
A report out today, Beyond the blame game: A responsible and rights-centred approach to government contracting, finds that current government contracting across local and central government fails to protect the rights of individual service users. Some local authorities, are outsourcing medical assessments to determine individuals’ vulnerability in the context of homelessness applications, without even a basic written contract.
One third of all public spending – around £300bn a year – is spent buying goods and services from outside government. This is no longer limited to printing and photocopying contracts but is pervasive across the delivery of vital services to members of the public. Yet these arrangements fail to properly consider the individual service users.
The result has been high profile scandals, widespread service failures and serious human rights abuses, such as at the Brooke House immigration detention centre. While the users involved suffer, the taxpayer bears the cost of legal challenges, public inquiries and fixing a failed public service.
Recognising that both the UK’s main political parties remain committed to significant outsourcing, today’s report calls for a move away from a hands-off approach towards more collaborative practices designed to better uphold people’s rights and meet the government’s legal duties.
The Working Party gathered evidence from across key contracted-out public services, such as homelessness assessments and prisons, and found that there is reform needed at every stage of the outsourcing process. The Working Party was chaired by retired Court of Appeal judge Sir Gary Hickinbottom and took evidence from lawyers, politicians, charities, providers and others with direct experience of government procurement across the UK.
The report highlights that the state has legal obligations to the users of the services which are often not being properly upheld when the service, or important aspects of it, are outsourced to private providers. When services are being tendered, contracts prepared and services overseen, these rights are often ignored. This has led to service failure, clear individual rights breaches and the taxpayer having to bear the cost of fixing the service and subsequent legal challenges and inquiries - the Brook House Inquiry alone cost millions of pounds. Far too often, contracts are awarded to providers for the lowest cost rather than a wider consideration of value for money.
Unknown providers and serious recurring problems
The report has unearthed new evidence on outsourced homelessness assessments, where a provider is undertaking vulnerability assessments of homeless people for £40 for local councils without meeting the individual in question. Of 19 councils we sent FOI requests to, only 2 councils could confirm they even had a contract with the provider (most told us they did not) and 17 councils did not have easily accessible information about the outcome of the assessments.
The report also sets out how, in Brook House immigration detention centre, the government outsourced public services to providers despite knowing they were not capable of meeting the legal standards required of those services. The original contract did not penalise the unlawful use of force on detainees, so much of the abuse of detainees could not lead to financial penalties for the provider.
More generally, the report sets out four recurring problems with government outsourcing:
- A lack of engagement and oversight by public authorities, often waiting until there is service failure or scandal before addressing issues
- Too much focus on short-term cost saving, rather than a wider consideration of value for money and quality
- A lack of focus on the individual rights of service users, leading to serious rights breaches and the state being liable for rectifying them
- The poor quality of government data on outsourced services and a lack of transparency
- A lack of accountability: it is the public authority’s responsibility to ensure individuals are aware of their rights and able to enforce them
We have an opportune moment to change this. The recently passed Procurement Act 2023 has the potential to dramatically shift the way in which public authorities contract out services. Taking the new Procurement Act regime as its starting point, the recommendations build on this to ensure that individuals, and their rights, are put back at the heart of contracted-out government services. Providers would need to be more transparent and accountable, but public authorities would also have important responsibilities to oversee training, gather proper information about delivery and ensure that rights are met. The individuals themselves must be properly consulted and empowered to challenge poor quality services.
Today’s report calls for a move away from a “hands-off” approach by public authorities, towards more collaborative practices designed to better uphold people’s rights and meet the government’s legal duties. This is in the interests of everyone in delivering proper value for money.
Stephanie Needleman, Legal Director of JUSTICE, says: “JUSTICE has, for many years now, been concerned about the lack of accountability when public services are outsourced to private bodies. The many examples in this report, from the Brook House scandal to local authority homelessness assessments taking place without even speaking to the individual, show the desperate need for change. The new Procurement Act regime represents an opportunity for public authorities to re-focus on individual rights and proper value for money. However, for this opportunity not to be squandered, the government must adopt the evidence-based recommendations of this report.”
Sir Gary Hickinbottom, Chair of the Working Party, says: "The outsourcing of public services is here to stay, regardless of the make-up of the next Government. Instead of lurching from crisis to scandal, with government and provider blaming each other, we need to find a better way - and the starting point must be putting people using the services at the heart of the contracting process. Our report sets out the practical measures necessary to do that, by involving individuals and considering their rights from the very start to the end of the process. By doing so we will not only raise the standards of service delivery but ensure true value for public money."
Recommendations
The report proposes the following changes to help create a responsible, rights-centred approach to government contracting:
- Increase Early Engagement to better assess services and the possible problems/ solutions. Individual service users should be consulted beforehand and an early Rights Impact Assessment should assess the potential risk of individual rights breaches.
- Emphasise value during procurement, which must be understood to include the rights protection of (often vulnerable) service users, and the risk of unintended costs to individuals and the public authority if things go wrong.
- Value should be emphasised in Most Advantageous Tender regulations and guidance, a recommended new Procurement Policy Note on “Protecting Individual Rights”, and consideration should be given to excluding providers who commit serious rights breaches
- If a tender process does not reveal a bidder which can meet the basic legal standards for individual rights required, then the public authority should not award the contract.
- Better use of the contract to protect rights. Serious rights breaches should lead to proper penalties in the contract. A new Individual Rights Focused Model Contract Guidance should provide model provisions on protecting rights. Outsourced assessments must have a written contract, with clear protections for individuals.
- Pro-active contract management and oversight. There should be more independent auditing, greater use of independent oversight bodies (such as inspectorates and ombudsman) and central government oversight of local government contracting.
- Improve transparency and accountability: We have recommended that there should be published information about performance of medium and high-risk services, reform of Freedom of Information law to ensure contracts are published and not excessively redacted, individuals should be given information on how to challenge decisions and access independent oversight bodies.