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Grand Committee

Volume 708: debated on Monday 23 February 2009

Grand Committee

Monday, 23 February 2009.

Health Bill [HL]

Committee (1st Day)

The Deputy Chairman of Committees (Lord Colwyn): Good afternoon. I start with the usual announcement that, if there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.

Clause 1: NHS Constitution

Amendment 1

Moved by

1: Clause 1, page 1, line 8, leave out from “State” to “, or” and insert “on 21 January 2009”

I shall speak also to Amendment 2. Before I turn to those amendments—I do not intend to delay the Committee for too long—I want to welcome noble Lords to the Committee and say how much I am looking forward to our debates on the Bill’s further stages, in particular that in Grand Committee. My first experience of Grand Committee was during the passage of the Health and Social Care Act 2008. All of us felt that that Act was improved by the important contributions of noble Lords, although I very much hope that we will keep our debates shorter than those we had on that Bill. I look forward to a similar quality of debate on this Bill; that has already been demonstrated by the informed contributions made at Second Reading.

I turn to government Amendments 1 and 2, which are minor, technical amendments. They make it clear that the constitution and handbook referred to in the Bill are the versions published on 21 January. I am pleased that the NHS Constitution was published very shortly after First Reading; that meant that noble Lords have had the opportunity well in advance of Second Reading to consider its contents. Noble Lords will be aware that the Bill was published on 15 January, which was, of course, prior to the publication of the constitution, and therefore the specific dated constitution and handbook could not be referred to when the Bill had its First Reading. As we are asking the NHS to have regard to the constitution, it is important that the legislation is crystal clear about the document we are referring to, which is why the Government have tabled the amendments. I hope that noble Lords are content with these minor amendments. I beg to move.

I seek clarification on the subsequent date. I believe that the Bill states that there will be a review every three years. Is the operational date for those reviews three years from 21 January 2009?

Amendment 1 agreed.

Amendment 2 agreed.

Clause 1, as amended, agreed.

Amendment 3

Moved by

3: After Clause 1, insert the following new Clause—

“Core principles

(1) The NHS Constitution shall, in particular, include and be consistent with the core principles of the National Health Service (“NHS”).

(2) The principles are that—

(a) the NHS will provide a universal service for all based on clinical need, not ability to pay,(b) the NHS will provide a comprehensive range of services,(c) the NHS will shape its services around the needs and preferences of individual patients, their families and their carers,(d) the NHS will respond to different needs of different populations,(e) the NHS will work continuously to improve quality services and to minimise errors,(f) the NHS will support and value its staff,(g) public funds for healthcare will be devoted solely to NHS patients,(h) the NHS will work together with others to ensure a seamless service for patients,(i) the NHS will help keep people healthy and work to reduce health inequalities,(j) the NHS will respect the confidentiality of individual patients and provide open access to information about services, treatment and performance.”

I hope that the amendment’s purpose will be immediately understood by the Committee. It is to suggest to the Government that the question of how much or how little of the NHS Constitution should be reflected in the Bill can be settled in a more satisfactory way than that which the Government have chosen.

On looking at the available possibilities, there are two extremes at either end of the spectrum. One would be to place the entire NHS Constitution in the Bill. The Government have rejected that option for the perfectly understandable reason that it would ossify the constitution in primary legislation. The other extreme is not to include any of the constitution in the Bill. Ministers have opted for that course, ostensibly because they wish to leave scope for the constitution to be revised and amended from time to time without having to refer to Parliament. The problem with that option is that it will leave the law saying nothing about what kind of declaration the NHS Constitution should be. We are in a situation where Parliament is given no say in fashioning or shaping the constitution, even in the most general terms. That, to say the least, seems odd when the separate statement of NHS accountability, which the Government have published, makes it clear that at the national level the Department of Health is accountable to Parliament. Where is the accountability here?

The NHS Constitution, as we heard in the preceding amendment, was written, signed off and published in an exercise that was completely detached from the parliamentary process. Given that we are dealing with a document of such apparent significance for the health service and for patients, I am disappointed and uncomfortable with that approach. The other problem with the resounding silence in this part of the Bill is that it carries with it the implicit assumption that there is nothing in the nature of an enduring or universally agreed statement of values that will serve to underpin the NHS Constitution over the long term. If there is literally nothing that we want Parliament to say about the values and core principles of the NHS, what message does that send out about the reliance that people should place on that document? It is as though the Government are saying that not even the principles on which the NHS is founded can be set in stone, lest they might in the future have to be changed.

Hence, I have tabled the amendment. Its purpose is to suggest that there might be a sensible halfway house between the two extremes I have referred to. What we should try to do, indeed what we owe it to the country to do, is to encapsulate in the Bill those core principles without which the NHS would not be the NHS that we want it to be, and without which any constitution, to put it bluntly, would not be worth the paper it is written on.

The set of principles I have included in the amendment are those that were articulated and agreed nine years ago in the NHS Plan. They are not my words, although I think that they are very good words. As in 2000, when the great and the good of medicine appended their names to the preface of the NHS Plan, they are principles with which no one will take serious issue. Interestingly, the amendment contains two principles that are not explicitly included in the NHS Constitution: first, that the NHS will support and value its staff, and, secondly, that public funds for healthcare will be devoted solely to NHS patients. Why does not the constitution expressly repeat these two core undertakings from the NHS Plan? We see in the constitution seven principles that,

“guide the NHS in all that it does”.

The third principle refers to the NHS aspiring,

“to the highest standards of excellence and professionalism”,

and staff are mentioned in that context. However, ensuring that staff achieve high standards is not the same as saying that those staff will be supported and valued. You have to turn to section 3a of the constitution to find anything resembling the words “support” and “value”, and what you do find is expressed only in the form of a pledge and not a core principle. Why is that?

As regards public funds for healthcare, we see a slightly weaselly version of the principle in the NHS Plan. Instead of an undertaking that public funds will be devoted solely to NHS patients, we see that public funds for healthcare will be,

“devoted solely to the benefit of the people that the NHS serves”.

What is the significance of this change of wording? What other groups of people are embraced by the phrase,

“the people that the NHS serves”?

It seems to me a potentially much wider cohort than simply NHS patients.

Therefore, my questions to the Minister are twofold. First, do the Government still subscribe to the core principles of the NHS Plan, and, if so, why have these not been transposed into the NHS Constitution? Secondly, if we agree that the core principles of the NHS Plan are good and enduring, will he agree to consider including them in this Bill as a means whereby Parliament can both endorse the constitution and warrant to the public that the values underpinning it are not ones that Governments of whatever political persuasion will tinker with? I beg to move.

Those noble Lords who took part in the Queen’s Speech debate on the health service will remember that I am not a fan of this constitution. However, I am told that no one is more welcomed through the gates of heaven than a sinner who repents. In this context, I am still a bit of a sinner. I am not wholly repentant but studying the Second Reading debate and certainly taking into account the views that I have heard throughout the country, I recognise that on the whole people are very much in favour of the constitution. Therefore, I have come round to thinking that it is something that we need but I think that it should be made as good as possible.

In that context, I very much share the view of my noble friend that the Bill is wanting when it comes to the constitution in that it omits the fundamentals and, in particular, the influence that Parliament can have on the future NHS. An organisation that is principled is one that is trusted. Principled people have clarity of thought and a philosophy that guides them. There is widespread agreement that, with regard to the law, stated principles give confidence to service users and their families, they support and guide professionals, they assist in tribunals and give consistency in casework, and they inform the exercise of discretion under the law. I think it is essential that those who have to interpret the law should have this knowledge.

I do not know the Minister’s views but, judging by some of our past experience, I am sure that he will be thoughtful. He will consider the matter very carefully and, I hope, return to this House with his own amendment. However, I suspect that his briefing will say, probably in mandarin-speak, “Beware. Don’t touch it. This is a trap”. If we go by past experience, the Government will be shy of putting the principles into the Bill, but that is in contrast to our fellow legislators in Scotland, who are rather braver. When we debated the Mental Health Bill, which became the Mental Health Act 2007 and revised the 1983 Act, the then Minister, the noble Lord, Lord Hunt of Kings Heath, was sympathetic but he thought that it was not practically possible to add principles to an existing Act. It might have been possible if the Act had been replaced in its entirety, he told us. He argued that the Act already contained implicit principles and that it would not make for clarity to add explicit ones. He undertook to explore the issue but made no promises about the outcome.

The subject was further debated on Report, when the Minister again expressed his sympathy but also doubts about causing confusion if principles were inserted into an Act that already contained principles. However, he agreed to introduce on Third Reading an amendment about principles, although this would relate to the code of practice and not the Act. This Bill is not on all fours with the Mental Health Act because it is not a revision of a previous Act but is new in its entirety. I am optimistic that the Minister will have inherited the sympathy shown by his predecessor, the noble Lord, Lord Hunt, and adopt the Government’s approach to two previous Bills, the Children Act 1989 and, more recently, the Mental Capacity Act 2005. Despite the principles being on the face of these two Acts, I am not aware that there have been any problems, litigation and the like. Perhaps the Minister will enlighten the Committee if that is so.

As my noble friend has explained, our suggested core principles are taken from the 2000 NHS Plan. That plan is nearly 10 years old and those principles still stand firm. I suggest that they are rather better than those contained in the constitution, but which, of course, are not on the face of the Bill as it stands at the moment. There are only seven principles in the constitution as opposed to 10 in our amendment, the first of which is split into two. The third principle in the constitution is “aspiration”, as my noble friend has said, and, although I rejoice in the focus on professionalism—I am delighted about that—using the interpretation in the handbook of “aspiration”, it could be seen more as a pledge than a principle.

In contrast, all our amendments and those principles taken from the 2000 health plan contain the verb “will”. This means business and is executive. The principle contained in subsection (2)(b) of our proposed amendment concerning the provision of comprehensive services is omitted from the Government’s principles. Are the Government running away from offering a comprehensive range of services or are they—this is not a rhetorical question; I should really like to know—in this difficult financial climate, saying, “Sorry, but we can no longer afford to offer a comprehensive range of services”? That would worry me, but I could understand it because it could be a legitimate strategy. However, if it is, it should be overt and not shielded simply by omission. Perhaps the Minister will explain the position to the Committee.

In our proposed new clause, subsection (2)(e) states:

“the NHS will work continuously to improve quality services and to minimise errors”.

With a Minister who has breathed, led and never ceased to impress the NHS with his championing of quality, and a CMO who is recognised the world over for his commitment to safety, I am amazed by the omission of this principle. Perhaps the Minister will tell the Committee why it is not included. Other voids in the constitution’s principles are the supporting and valuing staff, devoting public funds to NHS patients, keeping people healthy and a respect for confidentiality.

We could have pages of principles but there is merit in brevity. The Ten Commandments have stood the test of time and if we had only kept to them perhaps we would have a healthier society. We have set out 10 principles in our amendment which I hope the Committee will consider helpful as an important suggestion to improve the Bill and, much more important, to provide an anchor for patients, public, carers and staff when they consider the fundamentals that surround the NHS. I support my noble friend.

I have the greatest respect for the noble Earl who proposed the amendment and the noble Baroness who spoke to it but I have to express some personal concerns about its content. When we debated the Bill at Second Reading it was stressed, rightly so, that the NHS Constitution is not a code or a statute but a set of guidelines. The Bill makes it apparent that people working in the NHS and those who are subject to its rules and regulations must take account of or take note of or pay regard to the provisions of the constitution. With that I wholly agree.

It is clear that the principles set out in the amendment are admirable and totally unexceptionable. My concern is that if, as is the purpose of the amendment, this group of principles were embodied in the Bill, it would become part of a statute. I foresee the danger that if for any reason individuals of litigious intent felt that these principles were not being fulfilled it could give rise to litigation.

At Second Reading, I said how crucial it was that issues which are best dealt with by common law are handled by common law and not by prescriptive statutes. There are so many other principles that are a part of the National Health Service which are not included here and might be regarded as being of considerable importance. Nothing is said in these principles about the responsibility of the NHS for the education of healthcare professionals, nurses, other healthcare professionals, doctors and others, which is a crucial part of the responsibilities of the NHS. There is nothing said about the principles relating to the advancement of knowledge by research, which can nourish patient care and produce new developments which are vital to the future of medicine and patient care in general. Nothing is said about the crucial importance of the NHS nurturing advances in a vast range of medical technologies, which might equally have been included. Therefore, while its intention is very worthy, to embody the amendment in the Bill would be dangerous for some of the reasons that I have mentioned.

I have great sympathy with the principle of the amendment, because it states that the core principles of the NHS should be stated. We already have effectively four different NHS systems in the UK: devolution has meant that what is done in Wales, Scotland, Northern Ireland and England is at times very different. The experience of patients on one side or other of the border changes quite dramatically if they are referred across it. We have a unified taxation system, so the funding of the NHS is on a UK-wide basis. We do not fund the health service within a devolved Administration locally. In other words, we have a truly national, UK-wide health service, yet the constitution will apply to England. As it would be revised every three years, I am concerned that we may see some drift, that it may move with time away from the core principles of the NHS and that we will find that we have different systems in different places. It is therefore very important to define it.

I am concerned that “evidence base” does not feature in the words within the principles. I would like to see the evidence basis for what is done within the NHS flagged up as a core principle, because research and the accumulation of evidence should inform what is done. When there is no evidence, things should be abandoned and change thought about.

When I saw the amendment, it sparked the following questions in my mind: what happened in 1948? What were the core principles of the NHS that its founders believed should be stated and should endure? Was there a document in 1948? As far as I have been able to research it, there never was, which seems very strange when one considers the magnitude of the task which those brilliant men and women set for themselves; namely, to institute a comprehensive health service the like of which had never been seen. I have not been able to verify it, but I understand that the reason was that Winston Churchill decreed that, were there to be a set of principles for the NHS, they would be so general as to be meaningless.

That thought led me to ask whether, 60 years on, we need some principles. I rather think we do. I am not sure that these principles are even those that the noble Earl, Lord Howe, if starting from scratch, would have arrived at. However, we need some principles, because, 60 years on and in the light of our experience and the policy and legislative developments over that period, there is now a body of evidence about what brings about change and progress within a national health service.

I have spoken in the past three or four months about what I see as the looming issue for all of us, on whichever side of the House we sit, which is the grim prospect for public services expenditure over the next few years. I do not wish to be partisan in any way, but public service expenditure will be top of the agenda for any Government of any hue.

In light of that and what we have learnt in the past 60 years, it may be time for us to go back to establish what should be some founding principles of the NHS and be safe in the knowledge that any list of principles now exists within a context of the development of a body of policy, a context of clinical practice and expectation and a context of patient expectation. I perhaps take a slightly different view from that of the noble Baroness, Lady Finlay of Llandaff. Within the devolved system of the UK it is legitimate that we should begin to have different national health services which meet the needs of different populations. That said, I should be interested to know what should be the enduring principles that go across all four Administrations.

For the future, there is a very interesting task to be done, which is to have a full consultation about what the enduring principles of the NHS might be. I said at Second Reading that the question of how patient data were used had been overlooked in the Bill. That has been an ongoing problem, probably since 1948, which has never properly been resolved: how do we deal with the conflicts between the need for individual patient confidentiality and the need to generate population data in order to facilitate research? That is a big question that, 60 years on, we could and should look at in an open way.

I have a great deal of sympathy with what the noble Earl, Lord Howe, is trying to do. I am sorry that I have to direct my questions to him as the author of the amendment, rather than to the Government, but he has hit upon an issue—perhaps in not quite the right way—which is the gap at the heart of the NHS about what its principles should be in this day and age, and for the future. The idea should be taken forward in a slightly different way.

Even before the noble Earl, Lord Howe, moved his amendment in his usual eloquent and persuasive manner—it was elegant, too, actually—I felt that the Bill should say more about the basic principles of the constitution. I am sure that my noble friend would agree with the noble Lord, Lord Walton, that all 10 principles are absolutely acceptable and completely worthy, and that they are in line with the kind of NHS that Aneurin Bevan envisaged. That is not to say that they are the last word; we can amend them or add to them before the Bill leaves this House, and the other House can do the same, and the point made by my noble friend Lord Walton could be catered for. If these principles are in the Bill, that will not stop any future amendments to the detail of the NHS Constitution, provided that they fall in with these excellent principles.

I apologise to the Committee for not being at Second Reading but I was out of the country.

I apologise to the noble Earl, Lord Howe, for missing the beginning of his remarks but I got the thrust of his arguments when I came in. He will not be surprised to hear that I am opposed to putting principles of this kind in a Bill unless it is absolutely necessary—I have made many speeches on that. There was more of a case with regard to the Mental Health Act, as it became; we were trying to change, quite fundamentally, pretty ancient legislation 25 years after it had been framed. There is not a strong case here. Not content with constructing a constitution, we have a handbook on it as well, both of which can be amended over time as circumstances change.

The original authors of the NHS legislation—its founding fathers, if you like—were wise. They said that the Secretary of State would be under a duty to provide a comprehensive health service in England and Wales, as I recall, with a stony silence on precisely what “comprehensive” meant. That turned out to be very wise of the Labour Government of the time because three years later they had to introduce co-payments, which we call “prescription charges”. That is what they had to do at the time of an economic crisis. Circumstances change and Governments have to respond to them. With the NHS now taking a very large chunk of the public finances, we have to be wise about not putting primary legislation on the books that unreasonably ties the hands of future Governments when dealing with the economic circumstances that they face.

This set of principles has a lot of flaws, which were elegantly and eloquently described by the noble Lord, Lord Walton of Detchant. A big part of the NHS’s job is to provide the education and training of the next generation of doctors, nurses, scientists and other professions. Increasingly, its R&D role is incredibly important. With all the advances that we see in medical technology, it is important that the NHS plays its role in that area.

I am all in favour of taking wonderful Labour documents and enshrining them in legislation. The NHS Plan for 2000 was a wonderful document, but a document of its time. It did not say much about choice and competition. After that, choice and competition were introduced, and for a purpose; choice was certainly now a major part of the agenda, not just in the NHS but in the way that modern Governments respond to their citizens’ needs in the way they provide public services. Choice is an important issue for the future of the NHS.

We have moved on in many public services to accept a mixed economy of providers. Whether we like it or not, that is the world we live in. You could argue that we have always had mixed service providers in GPs, who are small business men and women from the private sector, so there is nothing very new about it. These are important issues, though, and the way that the amendment is framed, in terms of principles in primary legislation, would make it difficult for Governments to respond to changing circumstances and changing needs of societies. Often Governments make changes in something like the NHS because societies need change and they want, rightly, to be able to respond to that. These principles are too restrictive. I am afraid that while I understand the noble Earl’s thinking, and I have a high regard for him, those principles would tie us into a set of restrictions.

If I were being unkind politically, I would wonder whether this was a picture of the NHS that a Conservative Government would bring before us—basically, the NHS Plan circa 2000.

On Second Reading I said that I believed we should have had a Royal Commission on the health service. I believe that we should have had it a long time ago so we knew exactly what the health service was about, what it should do, what it should cost, who should pay for it and what have you. But since we have not had a Royal Commission we now have the NHS Constitution and we have an amendment before us that we are now considering.

I am old enough, of course, to have known Aneurin Bevan. He was kind enough to come to the Newbury constituency when I was fighting that hopeless seat to speak for me in the Corn Exchange there. I well remember that when he walked down the centre aisle, as he always did, he was jeered—and I also remember that when he walked out he was cheered. He was a great man and responsible for our present health service. I am not at all sure that he would have welcomed this handbook.

Aneurin Bevan believed that the health service should be run by local people for local people and should be financed through taxation. I am not at all sure that he would have welcomed the centralisation of decision-making that has taken place over the years. All the research for the health service, or a good part of it, done by Bevan himself and by Beveridge, was done in the localities. The first thing that Harold Wilson said to me when I arrived at the House of Commons in 1970 was that he knew Swindon well; he had been the research assistant to Beveridge, who examined the system that the Great Western Railway put into position for its workers.

The whole concept of the health service was one which, although financed through national taxation, was in the hands of local people for local people. But of course things have changed; one understands that. Because things are as they are, I said again at Second Reading that perhaps we have the second best with regard to rights and duties of people under the present National Health Service through this constitution.

I do not know whether the amendment before us wants to build on the constitution or whether it is necessary. The constitution probably sets out what people can expect and what duties they have, as well as what the staff should do, how they should be treated and how they should treat others. I am not at all sure that we want another amendment to be added to the Bill. However, if we are to add it, it needs to be looked at again.

There are phrases in the amendment that need to be tidied up. Proposed subsection (2)(a), for example, says that,

“the NHS will provide a universal service for all based on clinical need, not ability to pay”.

The fact of the matter is that the NHS core principle is that it should be free at the point of use. Again, at Second Reading, I said that I believe that people should know how much they are paying for it. When people know that, they will demand a better service. The noble Earl might consider taking out “not ability to pay” and adding “paid for by taxation” so that people understand exactly where the money is coming from.

When talking about the health service—which is a great service; do not make any mistakes about that—I often say to people, “How much do you think you pay for it? How much do you think the National Health Service costs?”, and I am amazed at some of the answers I get from people who should be up to date with the costs of the health service. At a dinner—I do not often attend dinners but nevertheless I was at one—I was talking to someone about the health service and I asked him, “How much do you think it costs?” He said, “Oh, £4 billion a year”. I said, “Just go up a bit”. He said, “Well, it must be £6 billion a year”. I said, “You are still not there”. He said, “Then it must be £10 billion a year”. I said, “Would it surprise you to know that it is £100 billion a year?” That really put him off his dinner. I said, “You are paying for it. No one else is paying for it”. The other day I asked someone in the House of Commons how much the National Health Service was costing. He is responsible for raising the money, but he did not know; he thought it was about £50 billion. There is a need for people to understand how much it costs because I am convinced that if they know how much it is costing them individually they will press for a better service. It happens elsewhere; there is no reason why it should not happen in the National Health Service.

I do not want to keep the Committee for too long but there are one or two other things that I really do not like about the amendment. The principle in proposed subsection (2)(d) states:

“the NHS will respond to different needs of different populations”.

There is only one population in the United Kingdom and it is made up of British people. These people are not “populations”, they are people. They may have different needs but they are part of the population. The Government, correctly, want to see integration and, if we are going to refer to “populations”, particularly on the face of the Bill, we will be going against the policy of integration which the Government, as I have said, quite rightly want to pursue.

The principle in proposed subsection (2)(e) states:

“the NHS will work continuously to improve quality services and to minimise errors”.

Of course it will; that is its duty. That principle is simply verbiage. You do not need something like that on the face of the Bill.

The principle in subsection (2)(g) states:

“public funds for healthcare will be devoted solely to NHS patients”.

Who else will the funds be designated to? National health funds are for national health patients whether the services are provided in national health hospitals and other organisations or in private organisations, which seems to be an increasing possibility. I am not sure that the amendment is necessary.

Finally, the principle contained in proposed subsection (2)(j) states:

“the NHS will respect the confidentiality of individual patients and provide open access to information about services, treatment and performance”.

I agree with that, but I am not at all sure that it can be achieved by the £12 billion which is being spent on the centralised computer system, which seems to fall behind year by year and seems difficult if not impossible to achieve. I am also very worried, bearing in mind the loss of people’s data in so many government departments and elsewhere, that patients’ confidential records will be lost or leaked and seen by people who should not see them. I read in the newspapers—perhaps the Minister will give us some assurance on this—that patients’ records are to be seen by pharmacists, which would be outrageous. I hope that the Minister can assure the Committee and the country that pharmacists and pharmacies are not to have access to people’s medical records through the computer system. I hope in relation to the present plans for centralised medical records that people will be able to contract in and not contract out, because inertia often means that people suddenly find that their medical records have been leaked to someone, having not understood that they could have requested an exemption from having their medical records shared throughout the country.

I appreciate that the noble Earl, Lord Howe, is trying to be helpful, but I am not sure that his amendment would help in any way. Perhaps he could think about it and reword it following our discussion in this Committee.

I shall be brief, as I had not intended to speak at this point, but, having heard the debate, I felt that I wanted to come somewhere between the noble Earl, Lord Howe, and the noble Lord, Lord Stoddart. My first reaction is that I am very keen on principles being explicit in a Bill. I was anxious when I read this list and asked myself, “What if they change?”. I suppose that we are saying that principles may not change. I think that principles in the health service are changing. As the noble Baroness, Lady Barker, said, the health service has changed during the past 60 years, and it will fundamentally change again during the next few years. There may be things that we hold dear and precious which through the next few years we want to hold on to and, for that reason, people may want some principles in the Bill to protect them. I agree absolutely with the noble Earl that the difficulty is that Parliament has not been able to debate the constitution, which is where the issues should be more clearly enunciated. Along with my noble friend, I think that there are serious omissions in the list.

However, what has convinced me most today that these principles should not be in the Bill is the speech of the noble Lord, Lord Stoddart, which showed that, if they were included, we should spend much longer discussing detailed semantics than in the previous debate. For that reason, having principles on which many of us would disagree would lead to difficulty.

Tomorrow, the House of Lords Select Committee of which I have been the chair will publish its report on cross-border healthcare. Some very interesting and controversial issues relating to payment, equality, authorisation and accessibility are in that document, which discusses the commission’s latest notice on this subject. However, it is important to recognise that other issues will come through, not only regarding the devolved nations—I agree absolutely with my noble friend Lady Finlay that we will learn from each other about different ways of managing health services through the devolved nations—but we are fast becoming much more European. Some of us may not like that, but it is a harsh reality. As borders fall, health services will change.

My final point is about specialist services. The noble Lord, Lord Stoddart, talked about populations; the populations that concern me most are the small numbers of people who consume huge amounts of money, without which they would die. We have to hold on to that throughout our thinking. Equity and equal distribution are difficult concepts; postcode lotteries add to those difficult concepts and make principles difficult, sad as I am to have to say that.

I will be very brief indeed. I have a single question for the opposition Front Bench. It arises from my conversation a couple of weeks ago with some colleagues at the other end and I can put it on the back of this amendment. Are the official Opposition satisfied with the general principles in the NHS Constitution, or is it the case that at some stage in the near future, in the event of a change of Government, they would want to revisit the NHS Constitution and, indeed, rewrite it? Would it endure for, say, at least a Parliament? That is all I wanted to ask.

Perhaps I may answer that question now and get it out of the way. The broad answer is: yes, we are very happy with the principles set out in the constitution; they are worded well. The questions that I posed earlier were really around what was missing from those principles, because they do not entirely reflect those enunciated in 2000 when the NHS Plan was published. As I have said, those principles seem admirable and have stood the test of time. There is no intent to change, and there has been no discussion on our part on changing, these principles. Indeed, the whole point of my amendment is that Governments of whatever persuasion cannot tinker with the principles that underpin the NHS.

Before the Minister replies, perhaps I may briefly make one or two points relating to subsection (2)(f) of the list in the amendment, which states:

“the NHS will support and value its staff”.

Ten years ago when I first entered your Lordships’ House, I visited housing in the East End of London with a health visitor and was struck by her ability to access very vulnerable families. Over the years since then I have intermittently come across health visitors and I am sad to say that each time I meet them they have expressed serious concerns about how they are being treated and about recruitment and retention of health visitors.

I was very glad to learn of the success of family/nurse partnerships and I am pleased that the Government are planning to invest in recruiting more health visitors. However, I have been concerned about the treatment of health visitors and I should be most grateful if the Minister wrote to me about what specifically was being done to ensure a more secure future for this important service.

The general principle which I see very much in terms of the child and family workforce is that if one invests in the workforce and values it, one will deliver a good quality of care and good outcomes for children and families, and in the health service. This is one principle that is absolutely right and probably will not change over time.

Furthermore, there has been a great deal of change in child and family services, made with the best of intentions, and much of it has been welcome. However, the difficulty of constant change is that it can tend to demoralise the workforce. Therefore, supporting and valuing staff may also make policy-makers always think before they make further changes that may be detrimental to the morale of the workforce.

The NHS is such a large organisation that some of the people working within it and the patients using it need reminding of what it does, so I see why the noble Earl, Lord Howe, wants the principles listed. I would like to see an additional principle, “(k) the NHS will do its best to prevent infections”—something that worries many people who use the NHS.

The problem when you have a list is that things get left out. Lists therefore need to be flexible. As the handbook is going to be reviewed every three years, principles could be changed or added.

Amendment 3 would place the principles of the NHS Plan, published in 2000, in the Bill. It would also mean that the principles published in the NHS Constitution on 21 January and all future versions of the constitution should be adjusted to reflect this set of principles.

I appreciate that in tabling this amendment the noble Earl wishes to ensure that we do not lose sight of the principles set out in the NHS Plan. I reassure him that no principles from the NHS Plan have gone missing from the constitution. Where they do not appear as a principle they are reflected elsewhere, either as a pledge or as a legal right. For example, there is a principle in the NHS Plan that the NHS will respond to the different needs of different populations. That has been translated into a patient right in the constitution: to expect your local NHS to assess the health requirements of local communities and to put in place the services considered necessary to meet those needs.

The second principle that the noble Earl referred to was about valuing staff, which was also touched on by the noble Earl, Lord Listowel. Obviously, staff are the NHS’s most important asset, and we are fortunate to have 1.3 million staff working in it. The constitution reflects that by making a number of pledges to the staff, including pledges to provide staff with personal development, access to appropriate training and line management support, and pledges to provide support and opportunities for staff to maintain their health and well-being. The constitution’s third principle also reflects the importance of education and training in the development of staff.

The noble Earl also raised the issue of the difference in the wording between “patients” and “public” and why we have changed one to the other. “Patients” applies to people already accessing the health service, but the NHS is for everyone, even for the well, in order to keep them well. The revised wording reflects that.

The noble Baroness, Lady Cumberlege raised the issue of whether the NHS will provide a comprehensive service. The first principle of the constitution confirms that. The NHS will provide a comprehensive service, and it is the Government and the constitution that are trying to secure that, at least for the next 10 years. That is based on the Health Act 2006.

The noble Baroness referred to the issue of quality and safety, and I am grateful to her for that. The third principle talks about how the NHS should aspire to the highest standards of excellence and professionalism in the provision of high quality care that is safe, effective and focused on the patient’s experience. We have used these definitions, and I have no doubt that we shall be debating them when we discuss some of your Lordships’ amendments on the quality account.

The constitution also sets out a patient’s right to expect organisations to meet the required levels of quality and to make every effort to improve the quality of healthcare they provide. We hope that the Bill meets the aspirations of not just the high quality that the staff wish to provide, but also the high-quality care that the patients expect from the NHS.

The noble Baroness, Lady Finlay, also referred to the NHS Constitution and said that it applied only to England. The devolved Administrations are of course free to make their own decisions, but I should like to reassure her that although the constitution applies only to England, none of the other devolved Administrations have moved away from the core principles on which the NHS was founded in 1948. This is our attempt to ensure that these are maintained. It has been suggested that the constitution will change every three years. That is incorrect. The constitution will not be renewed for at least 10 years; it is the handbook that will be reviewed every three years.

The noble Lord, Lord Walton, raised the issue of education of healthcare professionals and the research aspects of it. I think I have covered the educational aspect of it. The third principle in the constitution recognises the importance of innovation and the promotion of research, but not at the expense of confidentiality. I return to the point raised by the noble Baroness, Lady Barker, and the noble Lord, Lord Stoddart. Only healthcare professionals and people who owe the same duty of confidentiality as healthcare professionals are legally allowed to process sensitive personal information for medical and research purposes. Healthcare professionals are qualified and registered staff, such as doctors and nurses. Established NHS practice uses patient information when necessary to support research. We have seen many fruits of that research over the past 60 years, and we lead globally in many areas of research because of the NHS and its funding principles.

The noble Lord, Lord Stoddart, asked whether we could be clearer about funding the NHS. The document published with the constitution, the Statement of NHS Accountability, states on its first page:

“The NHS in England currently spends around £100 billion a year—equivalent to nearly £2,000 per person on average.”

That is in the constitution, and I have no doubt that that will help many who use the NHS to understand the value of the care they receive.

I reassure the noble Baroness, Lady Barker, that over the summer the constitution and the principles were consulted on extensively, specifically looking at the 10 NHS planned principles, which we have looked at since 2000. This extensive engagement with key stakeholders, when drawing up the constitution, allowed us to refine the principles set out in the NHS Plan. We now have a set of principles that has the support of patients, the public and the staff.

The large majority of respondents to the consultations thought that the principles articulated were broadly right; a small number of improvements were suggested and the final published version of the constitution reflected those comments.

It is important to remember why we have chosen not to include any part of the NHS Constitution in the Bill. As the noble Lord, Lord Walton, eloquently said, “We do not want to create a lawyers’ charter here”. That is why this is a declaratory and not a legal document. I think we can all agree that we would not wish to see decision-making in the NHS become a preserve of the courts. Equally, enshrining the NHS principles in the Bill would set them in stone until primary legislation was changed. While it is certainly not my intention that the principles of the NHS should change in any significant way—indeed, I see these principles as enduring—I also believe that it is important that there is a degree of flexibility, as highlighted by my noble friend Lord Warner, in relation to the NHS as it grows and evolves. So the proposals in Clause 3 for the constitution to be reviewed at least every 10 years following full consultation with relevant groups allow for this degree of flexibility while ensuring that the principles endure.

Given my reassurance that the principles from the NHS Plan have not been lost and that the principles in the constitution have been subject to a full consultation, I hope that I have convinced the Committee and that the noble Earl, Lord Howe, feels able to withdraw his amendment.

Before the noble Earl does that, I wonder whether I could clarify a couple of points. When I referred to pharmacists, I meant private pharmacies. I perfectly understand that in hospital pharmacies there is proper control. What one cannot be sure about is that there would be proper control within a private pharmacy. That is what I was talking about.

On the question of payment for the health service, not everybody reads the documents that the Minister quoted. I shall not say that it is my plan, because it is not, but consideration should be given by the Government to show perhaps on people’s wage slips how much they personally are paying towards the cost of the health service—like a health stamp, for example.

In relation to the private pharmacists, I refer to any pharmacist providing NHS services. If the general practitioner has been involved in that prescription, it is the general practitioner’s right to share any information that he or she may find suitable with the pharmacist providing those pharmaceutical drugs. As for patients reading documents, it will be a great pleasure for the Government to find a way in which we can share this information about the £100 billion that the taxpayer is spending on healthcare. On the question of exactly how much each individual is contributing, we all know that we are paying a significant amount of tax; we know exactly how much tax we pay. On an individual basis, people should be aware of the contributions that they make in tax.

I understand the arguments that have been put about flexibility and ensuring that we have enough room for manoeuvre in future. It is quite interesting that we have had the principles set out in the Children Act and in the Mental Capacity Act. That is not the Mental Health Act, which went into the code, but the Mental Capacity Act. Clearly it is unfair to ask the Minister if he has had any comeback from those principles set out in the Act, but I wonder if he could write to me. I would be interested to know whether putting principles into two of our Acts has introduced a lot of legal cases and disruption.

I am grateful to all noble Lords who have spoken. This has been a good debate. Of course, I acknowledge the reservations that have been expressed about the amendment. I recognise the danger of putting lists in legislation. Everyone will have their views about the content of such a list. The noble Lord, Lord Walton, is right in saying that there is no mention of research and education, and I would agree that the phrase “evidence based” might usefully sit in the wording.

The noble Lord, Lord Walton, said that the amendment would be likely to give rise to litigation. That is one worry that I have had about promulgating an NHS Constitution in the first place. I sincerely hope that I am wrong, but there is a risk in undertaking this very worthy exercise, which the Government have embarked on, that people will sit on their rights rather more firmly than they have in the past. Let us hope that that is not so.

I thought that the core principles contained in the NHS Plan were as good a collection of principles as any. So far as I know, no one has seriously argued with them up till now. If we are not to have anything, I must come back to what the noble Baroness, Lady Barker, said. She was absolutely right: there is a gap to be filled here, and if we are not to have an amendment of this kind or something like it, we need to ask ourselves how we are going to fill that gap.

I would of course be concerned if the inclusion in the Bill of principles, however brief, gave rise to an increased risk of litigation, as I mentioned. I think that that point can be argued over in relation to the amendment as worded, and I say to the noble Lord, Lord Warner, that, in my own mind at least, principles are not the same as rights or, indeed, pledges. They are separately listed in the constitution for, I would say, a very good reason. The noble Lord said that Governments should be free to change the principles in the future if they want to. However, I think that that is the very argument that people out there will not want to hear and it is why I felt that Parliament and this Bill should be allowed to say something about the content of the constitution. I give way.

For the sake of clarity, I did not say that Governments should willy-nilly be able to change principles; I said—I want to be very clear about this—that the circumstances in which Governments govern may change, making it necessary for a Government to respond to those circumstances. I think that that was in the thoughts of the people who wrote the founding legislation for the NHS. That does not mean that there should not be some understanding of principles and that they should be enshrined in the constitution, but I am saying that enshrining them in primary legislation may unreasonably restrict a Government of any political persuasion in the economic circumstances that they face, as happened in 1951 with the Labour Government.

In that case, one could argue that it is good for Governments to come to Parliament if they want to change one of the founding principles of the NHS. That is a positive thing to allow for. I was a little surprised that there was not a greater degree of concern about Parliament having been completely sidelined in this context but I shall of course reflect on all the contributions made. The Minister said that in practice there was no difference between the principles in the NHS Plan and those in the constitution, and I shall reflect on that as well. I observe only that at least one principle in the NHS Plan has become a pledge in the constitution and is therefore not enforceable. Therefore, I think that there is a difference between the two and we may be able to find other examples.

I believe this is a debate that we had to have. In the light of comments that have been made, between now and the next stage I shall consider carefully what to do about this particular amendment but, in the mean time, I am happy to beg leave to withdraw it.

Amendment 3 withdrawn.

Clause 2 : Duty to have regard to NHS Constitution

Amendment 4

Moved by

4: Clause 2, page 1, line 17, at end insert “and Handbook”

I shall speak also to Amendments 5 and 6. What does this mean in practice? That is the key question that everyone who has read what is termed “the NHS Constitution” has been trying to figure out. Great supporters of it are adamant that it will make a real difference to staff and patients within the NHS. They believe that it sets out a recognised framework for the way in which the NHS deals with individual patients and that it also sets out expectations which patients do, and should, have of how the NHS will treat them. Even its most staunch supporters and, indeed, some of its authors, cannot yet answer the question: what will be different in practice? I think that they would admit that, although they have high hopes and aspirations for it; however, they are unclear about what it will mean in practice.

The question of what the Bill is intended to do as a document which enhances practice within the NHS keeps recurring. It is answered to a limited degree by the handbook to the constitution. The purpose of these amendments is to try to come at some of the same issues that we discussed on the previous amendment, but from a different angle, and to try to incorporate what is in the handbook—not to incorporate its every word into the primary legislation, but to ensure that practitioners have regard for what is in the handbook and to increase its status.

The most important lines in the handbook are those that ask what the principles mean in practice. The handbook endeavours to exemplify what the principles will mean. Why go about it this way? In part, because I, like the noble Earl, Lord Howe, and other Members of the Committee, am a veteran of the Mental Health Bill and the Mental Capacity Bill. I take this opportunity to challenge the version of history of the noble Lord, Lord Warner. The reason that there was a great deal of argument about the inclusion of principles in the Mental Health Act and the mental health code of practice was not because the Mental Health Act 1983 was being updated; there was a great degree of consensus on that. There was intense argument because the Government were proceeding with a piece of legislation which they claimed rested on a set of principles—which it did—but unfortunately only the Government and a few of their advisers thought that they were right and relevant. Everyone else from mental health users to the Opposition thought that the principles were wholly wrong.

Regarding the Mental Capacity Act, the noble Lord, Lord Warner, was right to say that because the principles were so novel in legislation it was important that they were included in the Act and they have been reflected in the many documents that have flowed from that piece of legislation.

It is important that we try to reach a middle way whereby it is a legislative requirement that providers of services have regard to the handbook without putting its detail into the legislation, because it is clear from the Government’s actions so far that the heart of how the legislation will work will be embodied in the handbook, rather than in the constitution. I invite noble Lords to look at the constitution and the relevant bits of the handbook and draw the distinctions between them.

I pick one principle, which states:

“You have the right, in certain circumstances, to go to other European Economic Area countries or Switzerland for treatment which would be available to you through your NHS commissioner”.

That is stated in the constitution. However, the handbook goes on to state:

“What this right means for patients”,

and sets out the limits of what that means in practice. In the spirit of this legislation and of what the Minister is trying to do, which is to be fair to be patients about what their expectations of the NHS should be, it would be beneficial to the NHS and its users that they are not misled by the simplicity of the NHS constitution and are openly directed towards the practicality of what that principle will mean for them. That applies as much to staff as it does to users.

Another example—a very topical matter this week—was the commitment on screening. If one were to read only what the constitution says about screening, one would not immediately understand that there are policies around screening programmes which have been worked out by the department on the grounds of their efficacy in certain groups. The more you can draw patients into an understanding of how this document will work in practice, the more you will minimise unnecessary litigation and disruption to services. The three amendments are necessary because they place the duty of having regard to the handbook not only on providers of NHS services but on those who provide NHS services under contractual arrangements and on subcontractors. That is a deliberate thing on our part.

I continue to have an ongoing and interesting dialogue with the department about its interpretation of the 2010 competition for services regulations and the Part B derogation for health. At this point I know that noble Lords’ eyes will start to glaze over, but it is extremely important European legislation. I and many other people take the interpretation that it means that many areas of healthcare and social care are public services which have to be open to competitive tendering. Some people in government cling to a view that it does not. One day one of us will be proven right in a court of law but, whichever way one chooses to interpret it, it is an important matter, not least for the parts of the Bill dealing with direct payment and beyond. We have tried to make sure that this obligation rests not only with direct providers because we believe that in future a great many more healthcare services will be provided by subcontractors.

This is a slightly different way of making these principles have a meaning in the NHS as it is now. It is a commendable way of doing so because it does not tie down indefinitely in primary legislation the detail of the handbook, which remains capable of being changed and altered as it becomes relevant without amendments to primary legislation. This approach has worked, in slightly different ways, under the Mental Health Act and the Mental Capacity Act and I commend it as a good way forward. I beg to move.

I agree with all that the noble Baroness said as regards incorporating a duty to have regard to the handbook. My Amendment 8 is designed to meet that purpose. If anything, it is more important that people should be under an obligation to abide by the handbook than by the constitution in isolation because, of its very nature, as the noble Baroness indicated, the constitution is expressed only in headline terms rather than in terms of the explanatory substance in the handbook.

We need to remember that the handbook not only defines but, in some cases, limits the rights and pledges set out in the constitution. If the duty to have regard to the constitution is not accompanied by an equivalent duty in relation to the handbook, we are left wondering what status the handbook has. At the moment, it does not appear to have any at all. In purely practical terms, we want to be certain that people employed by the NHS operate with a clear understanding of what the constitution actually means rather than what they think it means. That is the central point at issue here.

I pay tribute to those who put this handbook together. In the NHS, we bore for Britain when it comes to jargon—we are absolutely appalling in that regard. However, this is written in such clear language that I think a huge amount of work must have gone into it. It is direct and simple to understand, and I think that it is a good document. I just wonder why Switzerland is included. Perhaps someone can tell me. The document says that,

“UK patients may be able to travel to another country in the European Economic Area”.

It lists all those countries but it also says,

“or to Switzerland to receive medical treatment”.

Amendments 4, 5 and 6 tabled by the noble Baronesses, Lady Barker and Lady Tonge, propose that all bodies and persons who must have regard to the NHS Constitution must also have regard to the handbook to the NHS Constitution. Amendment 8, tabled by the noble Earl, Lord Howe, has a similar effect but uses an alternative method through a new clause.

I understand the intention behind these amendments, seeking as they do to strengthen the duty on bodies and persons to have regard to the NHS Constitution by extending this duty to the handbook. However, it is important to give some context to the Government’s existing proposals.

We propose in Clause 2 that all providers of NHS care in England should have regard to the constitution. As noble Lords will know, the constitution is designed to be an enduring document that will, as I said previously, be updated infrequently and only after full consultation with patients, the public and staff. By contrast, the handbook is the explanatory guide to the NHS Constitution. It explains what the constitution means in practice, by setting out the law and departmental policy that underpin each right and pledge in the constitution. There is no right or pledge in the handbook that is not mentioned in the constitution, and the handbook itself does not create policy or law.

Although, of course, we expect those having regard to the constitution to be familiar with the content of the handbook, it is not a document that we intend should be legally taken account of by providers of NHS care. If I use my earlier analogy of the Bill that we are currently debating and the Explanatory Notes that go with it, I hope that that makes the case. Having regard to an explanatory guide is fundamentally different from having regard to the constitution, and I believe that a requirement in that regard may be unduly bureaucratic, given that NHS providers will in any event be familiar with the content of the constitution.

In addition, if there were an obligation to have regard to the handbook, there would also be a case for a more formal process for updating it—for example, a requirement to consult on any revisions to the handbook.

Furthermore, strengthening the legal status of the handbook in the way that the amendments suggest could, ironically, make it a less useful and accurate guide for patients, the public and staff, because imposing a requirement to consult on any changes to the handbook would make it slow and cumbersome to update, even though most of the changes would be minor and technical. It would undermine our objective of ensuring that the handbook was readily revised and kept up to date. That objective has widespread support. For example, the Constitutional Advisory Forum, which oversaw the consultation, recommended that the handbook should be updated regularly to keep pace with changes in legislation and policy.

Although I sympathise with the intention behind the amendments, I believe that they would complicate what we are trying to provide as a simple guide to the constitution for patients and staff in the NHS. I hope that I have made my case and that the noble Baroness, Lady Barker, will feel able to withdraw the amendment.

May I ask a question of clarification? Having been brought up in the field of social care, where Bills and Acts sometimes contain a sentence that says that guidance may be issued from time to time, I saw the handbook as the guidance to the constitution. I would have found it helpful to have had that in the Bill, and to have had some wording following from the handbook that could be revised by the Secretary of State from time to time. That would give the provision more formality but would enable it to be changed, as any guidance can be changed, without unduly cumbersome consultation. I hope the Minister will think again about this.

The constitution is quite a thick document. In it there are some serious paragraphs about patient and public responsibilities—and they are very serious responsibilities indeed. Everyone in the health service will have a copy of this in the hospital, or wherever they work, in whatever part of the health service they work. But what about the patients? As I say, there are some strong words here about the responsibilities of the patients and the public. Is it planned to send this—not the small, annotated version but the document itself—to every household in the country? After all, the French were able to do that in relation to the European constitution; I do not see why we should not be able to do something like this as well. Is that the plan, or are patients and the public not to be considered?

To add a point of clarity, the handbook is primarily an explanatory guide for patients, not guidance for the NHS. I hope I have answered that. On how we share that information with the patients, I have no doubt that in debating amendments later today we will discuss how to make the constitution and handbook available to those who use the health service.

That was a useful debate. I must admit, in answer to the noble Baroness, Lady Howarth, that I have enjoyed many a happy hour discussing what the word “guidance” means. That is why I deliberately shied away from any suggestion that we might be talking about something that had equivalence with statutory guidance. The noble Baroness knows the status of that, as do many other noble Lords.

There is something missing from this whole exercise if the document that most clearly sets out for patients and for staff what this is all meant to mean in practice—and we should bear in mind that there is a big section about staff—is unconnected from a constitution that the Government have decided should be based in law, but can have some kind of legislative force without it. I am not sure that I fully accept what the Minister says about the difficulty of updating it all, and so on; in so far as it is a document that reflects existing law and policy elsewhere, it consists largely of things that the NHS ought to make clear to its users. There is an argument, at least in my mind, that to do all that updating in the form of one document might be a more efficient way in which to go about managing relationships with staff and users.

I have listened to what the Minister said. I shall take it away and reflect on it, but I may well come back to it if, on reflection, I think that this is the most efficient way in which to keep this updated.

On the matter of Switzerland, I cannot answer the question with full certainty, but I shall have a guess. I am sure that Switzerland is not there because of Dignitas; I am sure that it is listed because, for WHO purposes, Switzerland, which is not part of the European economic area, is a health partner in many things. I may be wrong, but I wanted to show that I have been doing my homework for tomorrow’s debate. I beg leave to withdraw the amendment.

Amendment 4 withdrawn.

Amendments 5 and 6 not moved.

Amendment 7

Moved by

7: Clause 2, page 2, line 25, at end insert—

“( ) The Secretary of State shall publish guidance on the manner in which bodies and persons may demonstrate that they have had regard to the NHS Constitution.”

Besides the matters that we have just discussed, another aspect of these provisions needs to be looked at carefully. That is the issue covered by this amendment. What in this context does the phrase “have regard to” actually mean in practice? The Government have made it clear that the constitution is not intended as a document that gives people legal rights over and above those that they have already. I take it, therefore, that “have regard to” falls some way short of “slavishly adhere to”. If it meant “slavishly adhere to”, it seems to me that new legal rights would indeed be created. If it does not mean that, it must imply that there are some circumstances in which it is not incumbent on health service bodies to abide by the constitution.

If a body is allowed in certain circumstances not to abide by the constitution, yet must at the same time be able to demonstrate that it has had regard to it, what does that obligation amount to in practice? What will distinguish a situation in which an NHS trust feels duty bound to follow the constitution and a situation in which it does not? That question is difficult to answer, but we have to do so. If we do not, we are open to the charge that the constitution is a piece of tokenism that can be followed or ignored more or less at will.

As we know, various rights are laid out in the constitution, such as the right to receive NHS services free of charge, which, if they are not honoured, are open to legal action and redress. But when it comes to the pledges, which are explicitly not legal rights, we have to ask what force they actually carry if there are undefined circumstances in which health service bodies do not have to abide by them but must merely have regard to them.

The other question that arises is how it will be possible to verify or audit the extent to which a trust has or has not had regard to the NHS Constitution. What happens if someone complains that the NHS, notwithstanding the pledge in the constitution, has failed to work in partnership with you, your family, carers and representatives? Let us suppose that the trust or PCT on reflection agrees that the complaint has some validity in the light of the prevailing facts. What factors can be adduced to show that the trust had had regard to the pledge despite not actually having adhered to it?

The constitution says that the NHS commits,

“to ensure that services are provided in a clean and safe environment that is fit for purpose, based on national best practice”.

What is it sufficient for a trust to do to have regard to this pledge? If it is found that a hospital environment is not clean and safe, is it nevertheless possible for that hospital to be acquitted of the charge that it failed to have regard to the constitution? What would having regard to entail in this situation?

I think back to what the Minister said in his final report of last June, High Quality Care for All. Among other things, he said:

“For the Constitution to be meaningful it must have bite, with means for enforcement and redress, not just warm words or aspirations”.

How precisely does the constitution have the bite that the noble Lord referred to, and where are the means for enforcement and redress? The answer surely has to be that the means of enforcement and redress against the NHS are unchanged from what they always have been. If so, one is led to the rather sad conclusion that, in this sense at least, the constitution takes one no further forward. It does not deliver on what the noble Lord explicitly demanded of it. One might say, “Oh constitution, where is thy bite? Oh handbook, where is thy victory?”. All this points to something that has been highlighted by a number of commentators, which is that if we want the NHS Constitution to be effective and a force for good, people in the health service need to know that they have to perform in line with it as if their jobs depended upon doing so. It does not appear that anybody’s job will depend upon how well or badly they do in this sense. There are no penalties for failure. It is, I am afraid, more a case of warm words and aspirations than anything more biting.

We need to hear from the Minister why he believes that “to have regard to” is a sufficiently robust form of words for the Bill and what, in practice, are the tests that will determine whether the duty to have regard to has been adhered to. I beg to move.

I cannot resist rising on this issue. Having been on the receiving end of many lectures over the years from the noble Earl, Lord Howe, about how the Government have created bureaucracy in the NHS, this looks like a crackingly good way of having returns from NHS authorities to show how they have had regard to adherence to the constitution and the handbook. I can now see the returns flooding into a future Government.

The noble Earl has rather overlooked the fact that we now have a new regulatory system in place under the leadership of the noble Baroness, Lady Young, which requires registration and a lot of information on the performance of trusts. We have strategic health authorities monitoring the performance of trusts. We have a complaints procedure with ultimately an ombudsman who is able to respond to those complaints, which will no doubt come in on failure to adhere to the constitution and the handbook. Moreover, we have a parliamentary system in which a Health Select Committee and others can hold to account both Ministers and civil servants on how the work is discharged. How many more systems do we need in this area? We have gone a long way to ensure that people are held to account. This looks to me like a bit of unnecessary bureaucracy.

The spirit has moved me to respond after that speech by the noble Lord, Lord Warner. He has enunciated in a couple of minutes precisely what is wrong with the National Health Service, if anything is wrong with it. People I meet and people I know who work in the health service think that it is a very good service, but that it is overly bureaucratised. So many bodies, committees, oversights, reviews, reports, audits and quangos—do not forget them—all chip in and interfere with what people are doing. I welcome what the noble Lord has just said.

I declare an interest. I no longer work in the health service, but my husband, who I live with, still does, despite retiring 18 months ago at the age of 65. As there is a shortage in his specialty, he has gone back to work. If he were here he would say, “A plague on all your bureaucracy, just let us get on with the job”.

I shall be equally brief and support the contribution of the two previous speakers. Perhaps I may slightly rephrase the amendment so that we can perhaps more easily understand what the noble Earl is driving at. The amendment states:

“The Secretary of State shall publish guidance on the manner in which bodies and persons”,

and so on. What the noble Earl is really saying is that central government shall publish guidance on the manner in which hospitals demonstrate that they have regard to the NHS Constitution. He is asking for a sort of bureaucratic, centralist determination of the policies to be pursued by hospital trusts to demonstrate the way that they apply the constitution. That is almost the very reverse of the devolution that we are seeking to introduce in the National Health Service. I cannot believe that that is what the noble Earl really believes.

Amendment 7 would place a duty on the Secretary of State to publish guidance on how bodies and persons covered by the duty to have regard to the NHS Constitution in Clause 2 may demonstrate that they have had regard to it. I understand the intention behind the amendment, seeking as it does to ensure that providers, commissioners and regulators of NHS services are fully aware of the duty on them and how they should fulfil it. However, it is important to give some context to the current intention as it is set out in the Bill.

As my noble friend suggested, we do not intend the NHS Constitution to be a top-down initiative from the Department of Health, accompanied by a long list of requirements which have to be met in order to comply with it. The constitution was not developed in a top-down fashion, nor should it be implemented in that way. Indeed, the constitutional advisory forum said as much in its report to the Secretary of State. In order for the constitution to have the positive impact that we wish to see, it needs to be owned by every provider of NHS services.

A “duty to have regard” is a recognised legal term—although I should point out that I am not a lawyer. It will ensure that the NHS gives the constitution proper consideration. Requiring compliance with the constitution would be inappropriate in two ways. First, it would be legalistic and potentially generate litigation, creating exactly the kind of lawyers’ charter that we debated earlier. Secondly, it would not be possible to require compliance in a legal sense with some parts of the constitution. For example, one of the values in the constitution is compassion. Compassion is clearly at the heart of what the NHS means to people who use it, but how could you go around assessing compliance with that value? Similarly, what would happen with patients’ responsibilities, which we debated at Second Reading? We all want the NHS to inform people about their responsibilities and help them to meet them, but what would it mean if an organisation had to comply with that?

Issuing guidance on the department’s interpretation of the duty to have regard to the constitution would be overly prescriptive and would change the nature and the spirit of the constitution. Equally, it would not be possible for the Department of Health to list every possible action that a provider, commissioner or regulator might have to take in order to be in line with the constitution. It would not be possible, or appropriate, to create a one-size-fits-all approach that applies as much to a district general hospital as to a dentist. Guidance could therefore bring with it the risk that bodies providing NHS services rely solely on it and not on their own assessment of what is needed to be able to demonstrate their having had regard to the constitution.

That is not to say that the department will provide the NHS with no assistance whatever in meeting its obligations. Indeed, some may know that David Nicholson has already written to all chairs and chief executives in the NHS with examples of how they might fulfil the proposed duty on them—for instance, assessing existing policies and activities such as annual reports, staff or patient surveys to make sure that they are in line with the constitution, and checking against the constitution before publishing new policies or documents. We also have an extensive communications plan in place and we will use this to ensure that the NHS is aware of the duty on it and to help it think through how it will embed the constitution in its practices.

It is worth reminding the Committee that much of the constitution brings together policies which already exist. Most of the legal rights to which the noble Earl referred are already in existence and pledges are current Department of Health policy. The vast majority of the NHS should therefore already operate in line with the content of the constitution. I hope the noble Earl agrees that the duty to have regard to the constitution, along with the department’s usual processes, are sufficient to ensure that the NHS pays appropriate attention to the constitution without the need for guidance and more bureaucracy from the centre and that he feels able to withdraw his amendment.

The amendment has nothing to do with returns to Richmond House or additional bureaucracy. I was quite astonished to hear the contributions from noble Lords opposite that that is the effect they thought I was after. It is a way of addressing the cry that is bound to go up from NHS staff of, “What on earth are we supposed to do? How are we supposed to obey the law that has been worded in this way? What do these words mean in practice? What force do they have?”. I am none the wiser following the Minister’s reply.

For example, if I were in a charge of a trust or a PCT, I would worry what the phrase “a comprehensive health service” means. I could have regard to the constitution in my own way but I might not be certain that I was doing so properly. It is not a question of listing every possible action that people need to take; it is a question of making clear what deliberative processes NHS staff should go through and the kinds of considerations that need to be borne in mind. I am left wondering whether the constitution has the kind of bite the Minister hopes it will have or whether it is, when all is said and done, a set of warm words. That is the point at issue.

I fear I shall have to look at the matter again and see whether I can express my concern in a different way prior to the next stage of the Bill. I beg leave to withdraw the amendment.

Amendment 7 withdrawn.

Clause 2 agreed.

Amendment 8 not moved.

Clause 3: Availability, review and revision of NHS Constitution

Amendment 9

Moved by

9: Clause 3, page 3, line 2, at end insert “readily”

I shall speak also to Amendment 25. We read in Clauses 3 and 4 that the Secretary of State has to ensure that both the NHS Constitution and the handbook,

“continues to be available to patients, staff and members of the public”.

The amendments ask the basic question of what exactly is meant by this. The people who are going to need the NHS Constitution the most—that is, the people who are most going to need to rely on the rights and pledges it contains—are those members of society who are in some way disadvantaged and whose voice is less loud: the elderly, the disabled and the very sick. If those groups are not aware of what the constitution says and how it can help them, then the benefits that we all hope will flow from the constitution will be considerably diluted.

Awareness here is surely key. If we agree about that, we must also agree that both the constitution and the handbook have to be not just “available” but easily accessible to everyone who has a need or potential need to know and understand their contents, especially vulnerable groups. People have to know what their rights are and how they can challenge poor treatment if they receive it. They need to have things rapidly put right whenever mistakes are made. Therefore, it is essential that the availability of the constitution and the handbook is not dependent on chance or on people scouring the NHS for it.

I think back to the Patient’s Charter, which in its time was a good initiative. However, its effectiveness rather fizzled out because the incoming Labour Government did not put their weight behind it and, as a result, everyone forgot about it. Essentially, it disappeared off people’s radar. The Minister will no doubt say that the Patient’s Charter cannot really be compared with the NHS Constitution because, for one thing, it was not backed up in statute. I understand that distinction but my point is that, whether or not a constitution or a charter is backed up in statute, it is as good as useless if it is not promulgated to those whom it is meant to help—that is, the people who deliver and are in receipt of services. That applies not just to a few but to every household in the land, and it is an ongoing process—something that has to be kept up year after year.

I should like to hear from the Minister how it is envisaged that the constitution will be made available, to use the word in the Bill. I am not altogether happy with that word; I should have preferred “accessible” but I have gone for the phrase “readily available” to give a sense that the availability is not just dependent on consumer or user “pull” but also requires some “push” from the provider or commissioner end. I beg to move.

I hope that the Minister will readily agree to this helpful amendment, which strikes me as being a valuable addition to this clause. It is crucial that the constitution and handbook are very widely available—in public libraries, GPs surgeries, hospital out-patient departments and so on—so that it is readily available to all members of the public who wish to consult it. Therefore, I strongly support the amendment.

I speak to Amendment 10, which follows on from the amendment moved by the noble Earl, Lord Howe, and is really a development of the word “readily”. We agree with the noble Lord, Lord Walton, that the constitution should be readily available. If we are to have this constitution, it is important that it is in a format that is accessible to all people, whichever language they speak and regardless of whether they are physically challenged in any way. Presumably it will have to be in Braille and in a format that is easily read and understood by people with learning disabilities too. If it is to be available, it must be readily available to all those groups and must therefore be in every health service premises.

I wondered, rather whimsically, whether, on qualifying, all NHS staff—doctors, in particular—should drop the Hippocratic oath and learn to recite the NHS Constitution before being allowed to practise in the NHS. Alternatively, as used to be the case in some churches in this country where the Ten Commandments were written on the walls, perhaps in each waiting room of every health service establishment the constitution could be available in several languages. It would give people something to do other than look at the goldfish; it would be an interesting diversion.

I think that these amendments are very important if the constitution is to mean anything. We are not suggesting that it should be chained to the wall—again, an ecclesiastical reference. It is not a chained Bible but it should be readily available in a form that is understood by everyone and it should be in every NHS premise.

Amendments 9 and 25 propose that the NHS Constitution and the handbook to the NHS Constitution be “readily available” to patients, staff and members of the public rather than “available” as the clause currently reads. Amendment 10 seeks to provide after Clause 3(1) that each of the bodies under a duty to have regard to the constitution should display the constitution, and that each of those bodies must be able to provide a copy of the handbook for reference.

It is important to reassure the Committee that the constitution and the handbook will be readily available. As the Constitutional Advisory Forum pointed out in its role as the guardian of the constitution process, a critical success factor in ensuring that the constitution takes effect will be the approach taken to communicating its content. I have no doubt that when we assess the impact of the constitution we will know the impact of our communication strategy.

Communication of the constitution will be a core priority, both locally and nationally. The department is working closely with the NHS in developing various means of communications to help the NHS to raise awareness and promote understanding of the constitution among staff, patients and the public. I assure noble Lords that we intend access to the constitution to be as broad as possible. We are devising several communication methods and producing the constitution in many alternative formats to spread the message. The constitution and the handbook are, of course, available on the internet but, for those who do not have access to computers, they will be available in hard copy. NHS bodies will also have access to hard copies of the constitution and will be supported by the Department of Health in promoting it locally.

I can reassure the noble Baroness, Lady Tonge, that the constitution will be translated into other languages. It will be available in Braille, in large print and in audio, and the Government are finalising an easy-to-read guide which can be used by children and those with learning difficulties. All these documents will be widely available.

The communication of the constitution will not be a prescriptive, top-down approach, as we have debated before; it will be for the local NHS organisations to determine the best place to display the constitution and the handbook. I have no doubt that PCTs, acting on behalf of their local populations, will find the constitution an extremely useful tool to help in sharing with the users of the service what their rights and responsibilities are.

I hope that I have been able to clarify that it is not necessary to extend the communication of the constitution and the handbook from “available” to “readily available”, but if I have not convinced the Committee I shall be happy to look at the matter again and come back to it on Report.

I appreciate that the handbook will be displayed in various places, including public libraries, doctors’ surgeries, hospitals and so on, but the general public need to know that. The document I have here is useful and it would not cost too much to send it to every household in the country. There could be an edition which informs people where they can see the full handbook and directs them to their nearest public library or wherever else it may be. That would be helpful in letting people know exactly what they can expect from the health service and what duties they have to it. Perhaps the Government will consider that.

I support the noble Lord, Lord Stoddart. I suspect that most of us carry the European health insurance card, which has a renewal date on it. Why not make sure that every time the card is renewed—this one is due in March 2010—a copy of the document is communicated to the individuals who receive the card?

Anything that we can do to enhance communication in this field will be very important. I am not sure whether communication of the constitution will be fulfilled through the European health card but I shall be more than happy to look into that. However, I take the point and could not agree more. We have a document which has been well received by patients, by the public and by the staff who work in the NHS. The more we communicate around this the better it is for those who receive care from the NHS and those who work within the NHS.

I am grateful to all noble Lords who have taken part in the debate. I still have a feeling that the word “available” is slightly weak; it is not proactive enough to convey the full sense of what we all, including the Minister, would like to see. I was reassured by the intentions that he outlined as regards publicising the constitution. It is a question of carrying on as we have started in that, if the Government do everything they say they are going to do, that will be great, but we want to make sure that this effort is maintained over the years into the indefinite future. Unless that happens, this document, like the late, lamented Patient’s Charter, will disappear off everyone’s radar.

I shall think carefully about what the Minister has said between now and Report and decide how best to take the matter forward. In the mean time, I beg leave to withdraw the amendment.

Amendment 9 withdrawn.

Amendment 10 not moved.

Sitting suspended.

Amendment 11

Moved by

11: Clause 3, page 3, line 5, at end insert—

“( ) The Secretary of State must ensure each of the bodies listed in section 2(2) reviews and consults with their local authority, on an annual basis, regarding the adequacy of local arrangements for ensuring their accountability to the local community through democratically elected councillors.”

Amendment 11 brings to the attention of the Committee a substantial omission within the constitution, the handbook and the statement of accountability, which is the requirement of NHS bodies to review and consult with local government on their local accountability arrangements.

Despite the long list of bodies referred to by the noble Lord, Lord Warner, in a previous group of amendments, the NHS remains largely unaccountable to local people, not least because strategic health authorities bear no relation to any other tier of government. Pretty well the only means of accountability lies within local health overview and scrutiny committees. They have the power to scrutinise the operation and planning of local health services, and they can make reports and recommendations on the adequacy of current planning and provision.

Strategic health authorities struggle to achieve the level of interaction and joint agreement with the NHS that perhaps was envisaged for them when they were created. It is relevant to point out that in the research done in 2007 fewer than 10 per cent of non-executive directors of health trusts were local councillors. That is not in itself a bad thing, and we have no desire to return to the old days when local health boards had large numbers of political appointees placed on them. However, it points to a degree of separation between local authority planning and local NHS planning, which I think will become more noticeable over the coming years. It is something that comes to the fore when resources are scarce.

Why is this important? Not for the first time, politicians of all parties have been coming to a realisation that not just the use of public funds but the way in which public services are designed and implemented locally have an impact on the health of an area, and we are beginning to understand in ever greater detail the effect that environmental decisions can have on the health of a population. The planning of roads and social facilities, the location of schools and access to healthy food within communities are becoming more relevant and important. There should be a greater degree of sharing between the NHS and local authorities if there are to be improved health outcomes for local populations and if health inequalities are to be reduced.

It is perhaps in the realisation that the current system of health overview and scrutiny committees, notwithstanding the time and effort that local authorities put into it, does not work to the satisfaction of everyone and could be a great deal better. At this moment when the Minister has put forward this document, which is I suppose a statement in time with aspirations for the future about how we are to improve the value of the NHS to health within local communities, this requirement to share on a more equal basis with local authorities the mechanisms for accountability should not be overly bureaucratic. People in the NHS should not be fearful of it, it is just one way of being more effective stewards of resources that may not diminish, but will be in increasing demand.

That is why we have tabled this amendment in this way and I hope that the Minister will find it acceptable. I beg to move.

Perhaps I may raise a note of caution in relation to this amendment, based upon historical experiences. One or two minor political points have been raised from both sides of the Committee and, as a Cross-Bencher, I do not take any political stance, as I am sure the Minister will appreciate.

However, I hark back to when I was a member of the Newcastle Regional Hospital Board in the late 1960s. In 1970 in Newcastle-upon-Tyne the board of governors of the Royal Victoria Infirmary, which had direct access to the Ministry of Health, as it then was, gave up its governors’ status and a new hospital management committee was created to embrace all the hospitals in Newcastle-upon-Tyne. It was a university hospital management committee made up of one-third university members, one-third health service staff of all grades and one-third from the local community. For three years, from 1971 to 1974, it functioned superbly.

Along came the Conservative Government, with Sir Keith Joseph—later Lord Joseph—as the Secretary of State for Health. On the basis of a report from the management consultancy firm McKinsey, he introduced a system of what he called “consensus management” in the National Health Service. That produced a system of district, area and regional health authorities. Consensus management resulted in a process whereby the decision-making machinery absolutely and totally congealed. There was no way of reaching a decision. You had to go through 14 committees if you wished to appoint a new registrar, for example. The system was an unmitigated disaster. We struggled along for a few years—I was dean of a medical school at the time—before, a few years later, the Labour Government came in. Mrs Barbara Castle, later Baroness Castle, was then the Secretary of State for Health. She published a White Paper entitled Democracy in the National Health Service, which doubled the number of local authority members on the health authorities, the result of which—let us not be pejorative about it—was that the local authorities tended to appoint to the health service bodies not the most able and outstanding of local councillors but those for whom they could not find any other job. The result of that was that the decision-making machinery became worse, in that many of the members of the local authorities appointed to those bodies spent most of the time arguing for the health services in their local constituencies and the situation became disastrous.

The noble Lord, Lord Stoddart, who is not here, called for a royal commission on the National Health Service. In fact, a royal commission was established under the late Sir Alec Merrison and reported in 1980. It at last did something to sort out the appalling administrative mess resulting from those various actions. Since then, the reorganisation of the health service has been so much better, but I merely wish to strike a note of caution. There are now many members of local authorities who are non-executive directors of health bodies of various kinds and make an outstanding contribution, but I want to make it clear that that experience did not enamour me of the idea of major involvement of local authorities in the organisation of the NHS. It is right that they should be involved, but they should not dominate the bodies concerned with NHS delivery.

I am in serious danger because I forgot to declare my interests—I may feature in the Guardian tomorrow. I should declare that I am an executive director of Cumberlege Connections Ltd, which is an organisation that concentrates on training.

The noble Lord, Lord Walton, was talking about history. I remember chairing social services for a county council; I then became a district and regional health authority chair. In those days, I knew where the overlaps lay. I also knew where the voids between health and social services existed. I liked local government because it had a rigour about it. Knocking on 1,000 doors every four years is very salutary, especially when the resident goes in, reaches behind their clock, takes out your previous election manifesto and quizzes you on the promises that you made and broke.

The NHS lacks that rigour, that local democracy, and so it has to seek other mechanisms. It compensates for it with a whole cat’s cradle of different regulations of targets, accountabilities, standards, carrots and sticks. It needs that to ensure that it performs and that the Government can see where their public money is being spent.

My experience was a long time ago, but at the moment I am dealing weekly with local government and the NHS. I am not sure that an awful lot of progress has been made in knitting the two organisations together in the intervening time. Thirty years ago, I remember, we coined the phrase “a network of care” and professed our intention that needy people be caught by that net so that they would not fall between the two services. I am not sure quite what happened to the net, but I do not think that it really worked. Later on, we talked about a “seamless service”, and we still do. We are anxious that people do not fall between the seams, but I am not sure where that has got us either.

As the noble Baroness, Lady Barker, said, we need to strengthen the accountability in the NHS; we need to strengthen joint working with social and social care services. The overview and scrutiny committees have been a brave attempt to do that. From talking to the people who have been before them and who have run them from local government, I believe that in some places they are really working very well. The local authority is thoughtful, knowledgeable and constructive in its criticism of the NHS. In other places, the local authorities have proved to be ill informed, overly political and destructive, and have jeopardised any sort of joint working. But this is early days. We have a lot to learn from each other, to spread good practice.

On commissioning, I think that the NHS has a lot to learn from local government, which embraced commissioning 25 years or so ago. I know that some joint commissioning is being trialled and I hope that will prove to be fruitful. However, I have a bit of a problem with the amendment. Although I absolutely support the intentions behind it, I am not sure about the last part of the amendment where it refers to,

“accountability to the local community through democratically elected councillors”.

It is the word “through” that could raise a lot of problems. I should be interested to hear the Minister’s reply to the amendment. I share the sentiment behind it, but it may not be quite the way forward.

Like the noble Baroness, Lady Cumberlege, I declare an interest as chair of the Care Quality Commission, which in 36 days will become the only regulator in the world covering both health and social care. I hope that it will be able to play a role in some of the issues that the noble Baroness raised.

On a technical point on the amendment proposed by the noble Baroness, Lady Barker, the list in Clause 2(2) contains two different sorts of organisations—first, providers of care on either a regional or a local basis and then, at the end, the two regulators, Monitor and the Care Quality Commission. It would be slightly strange if this requirement, which is really about local accountability and the local joining up of services, also caught up the two regulators in the process. That would probably need amendment. The regulatory bodies are established on a national basis to do their task—and it would probably be at odds with the Care Quality Commission’s role in particular in assessing the performance of local authorities on their adult and social care responsibilities.

I would not contest the principles that the noble Baroness, Lady Barker, is espousing of the need for drawing up close working arrangements at a local level. I hope that the new comprehensive area assessment process will play a role in ensuring that that happens. But on the technical point, I do not think that the two regulators should be caught up with this.

Amendment 11 would require all NHS bodies, including foundation trusts and special health authorities, Monitor and the Care Quality Commission to consult their local authority every year on the adequacy of their local accountability through their local councillors. I agree with the sentiment that it is vital for the NHS to engage with its local populations and with its key partners, such as local authorities. However, I do not believe that it is necessary to place such a requirement on the NHS. We have already introduced a comprehensive framework of policies, which I shall go through, to strengthen the accountability of the NHS. This includes giving councils the power to review and scrutinise local health services; introducing foundation trusts, with their membership systems; putting a legal duty on the NHS to involve local people in its decisions about services; and introducing local involvement networks. These reforms are backed up by the world-class commissioning programme, which holds primary care trusts to account for their performance, including how well they engage with their local population.

I distinctly remember the debate on this over the year when we put the constitution together. It is interesting to see my noble friend Lady Jay here, as she was also a member of a think tank as part of the King’s Fund, which was looking at the accountability of the NHS. It debated in significant breadth what the best model was.

The statement on NHS accountability, which was published alongside the NHS Constitution, shows that there are a number of ways in which PCTs are free to adopt local views, and I shall go through them again. They include: inviting local councillors or mayors on to their boards; increasing the integration of commissioned services through joint planning arrangements—there are numerous examples of joint commissioning; it is working well and we have seen the fruits of it; creating a local membership system; joint appointments of senior executives; formal partnership arrangements; and pooled budgets, which we will talk about in due course.

As the noble Baroness, Lady Barker, said, it is also critical that the public know how the NHS is accountable at a local level and how they can get involved in the accountability structure. That is why we set out very clearly some of the mechanisms that I described in the statement of NHS accountability, which, as I said, was published alongside the constitution. This is a public-facing document which explains roles, responsibilities and accountability in the NHS.

I think I have demonstrated that there is already an extensive system of local accountability in the NHS, and the NHS is of course always working to improve the way in which it involves local populations and works with local authorities. It is also not the case that the only mechanism for local accountability is through local councillors. I hope that I have reassured the noble Baroness that over the past year we have worked to improve the framework of accountability and that she is able to withdraw her amendment.

I thank noble Lords for their contributions to this debate. I start by assuring the noble Lord, Lord Walton, that it was not my intention in any way to reinvent the horrors of the 1970s, reconstituting effective bodies and replacing them with wholly ineffective ones. I had hoped that we were talking about something that reflected more the lessons of the past 30 years.

I absolutely do not underestimate how difficult it is to get the NHS and social care to work together effectively. Some people in both areas have spent their entire professional lives trying to make that happen with varying degrees of success, and some of them bear the scars. I certainly was not trying to advocate any kind of situation in which local councillors would be allowed to dominate health decisions. That would not be right. However, over the past 30 years we have come to recognise that for effective planning of health and social care services all sorts of people with professional knowledge—and, thinking about housing, in some cases technical knowledge—need to be involved on an equal basis in discussions with the policymakers.

I should like to ask the noble Lord, Lord Darzi, one question, although I do not expect him to come up with an answer instantly. How many PCTs invite councillors to be on their boards? I understand that there are examples of good practice but I should like to know how prevalent it is and how it works to good effect.

I accept some of the criticisms about some of the wording in the amendment. It was not an attempt on our part to say that local councillors are the only mechanism for local accountability; none the less, they are a pretty important one. I say to the noble Baroness, Lady Young of Old Scone, that we have had comprehensive area assessments for a long time and they have included health. These have recognised that we have had a health oversight and scrutiny committee but that it has not worked, so we need to move a bit further. I have long thought that one of the big problems in the NHS is that strategic health authorities do not relate to any other part of government. Nevertheless, they exist and I accept that there is no appetite whatever anywhere in the NHS for a restructuring; you have to go with the structure as it is.

For all the flaws in the amendment’s wording, I was trying to dig out the fact that where health oversight and scrutiny committees see things going wrong and that the NHS is not having the impact that it should, they do not have a mechanism at the moment to influence strategic health authorities. That is a major gap. If strategic health authorities are to continue to have responsibility for the performance of PCTs, there has to be an alignment with social care.

I take entirely the point of the noble Baroness, Lady Cumberlege, that in social services people work to structures and that in the NHS they work to relationships. Happily, sometimes they come together—it is purely chance if they do—and when they do it is spectacularly creative. However, for quite a lot of the time it is not.

There is a reason for introducing this provision now. I can remember that slightly more than 10 years ago, when resources were tight, social care and health services used to bat patients back and forward in order not to pick up responsibility for equipment, drugs or care. That kind of thing happens when money is tight. It is not yet tight, but it might be. If we can see a deficit—not in places for people to go and play at being local politicians—in the understanding of users of health and social care services of how the resources are being used in their area, addressing that situation now would be very wise.

I have listened to the Minister and to the comments made by other noble Lords about the deficiency of the wording. I shall take the amendment away but I may wish to return to the issue in some respects. I beg leave to withdraw the amendment.

Amendment 11 withdrawn.

Amendment 12 not moved.

Amendment 13

Moved by

13: Clause 3, page 3, line 6, at end insert “, local authorities”

I shall speak also to Amendments 16, 21 and 31. This group of amendments is on a similar tack. It concerns the list of bodies that are to be consulted when the NHS constitution is revised 10 years hence. There is a presumption that the bodies listed will still be around and functioning, but that may be dreadfully optimistic given the lifespan of some NHS bodies over the past few years. None the less, the amendments in the group highlight the concern shared by noble Lords around the Committee that if the document is to work in the way envisaged by the Minister, it needs to be, if nothing else, a focal point for discussion about how the NHS is working and should work in the future, and a number of people ought to be involved as of right, separately and distinctly, in any revision of it. Carers, for example, should not be swept up in a general category of “the public” because they have a distinct input.

I cannot stress enough that local authorities and representative bodies of local authorities should be involved. We will move to a time when responsibility for health will go well beyond the National Health Service and on to what remains of the public service infrastructure. If this document takes off and becomes the progressive tool that the Minister envisages, then he has nothing to fear in stating publicly now that these groups of people will be involved in its revision as it goes on with its life. I beg to move.

I shall speak to the amendments in this group that are tabled in my name, Amendments 14, 15, 17, 19 and 20. One of the surprising features of an NHS Constitution that is meant to be all about delivering patient-centred services to high standards of quality is that the process involved in the review and revision of the constitution is to be anything but inclusive or transparent. I hope that the Government do not mean this.

We see in Clause 3 that provision is made for the Secretary of State to undertake a consultation before revising the constitution. That is fine until we look a little further on and see how limited is the nature of that consultation. Nowhere is there a mention of carers; patients are mentioned but not bodies representing patients or particular groups of patients; and there is no mention of local involvement networks, the bodies created by the Government only last year to act as local patient watchdogs. I would like to see mention made of bodies that represent staff, such as the BMA, the RCN and the other unions—not just, say, a handful of random NHS employees.

At the end of the consultation exercise, what does the Secretary of State have to do by way of publishing the results of the consultation? Absolutely nothing. He can review and revise the constitution without having to disclose to anyone what feedback he has received, so that it will be impossible for any of us to know to what extent he has taken account of the comments made to him. It is a closed process, and that surely cannot be right.

There are two reasons why that is not satisfactory. The first relates to specialised services, which got a raw deal in the NHS Constitution; they are not even mentioned. There is a paragraph on page 15 of the handbook about the existence of specialised services, but couched in terms that grossly belittle their importance:

“The NHS also provides access to ‘specialised services’ for the small number of people”—

the small number of people—

“who suffer from rare conditions. These specialised services are commissioned either regionally or nationally from a few specialist centres, depending on the rarity of the condition or treatment”.

Given that specialised services account for no less than 10 per cent of the NHS budget and many hundreds of thousands of NHS patients, often in the most extreme need, this seems to be—to put it mildly—inadequate recognition. The constitution itself, not just the handbook, should enshrine the importance of regional and supra-regional services alongside local planning and provision. It is, after all, this combination of local, regional and supra-regional that makes the NHS a truly national service.

The second reason why this part of the Bill is unsatisfactory is the absence of any acknowledgment of patient and public involvement in decision-making. A number of organisations have pointed that out, including the BMA, RADAR and the RCN. Patient and public involvement is mentioned in the constitution, which is well and good, but there is no provision in this clause for involvement by LINks or bodies like the Patients Association in providing feedback on the drafting of what is intended to be a key point of reference for the delivery of health services. It is difficult to involve everyone in a dialogue, but if the Secretary of State were to have an explicit obligation to publish a report setting out the results of the consultation, it would at least add a welcome measure of transparency and make consultees feel that their representations had been factored in.

One group that feels short-changed is the disabled. RADAR has made clear its disappointment that the opportunity was not seized during the drafting of the constitution to highlight the full nature of existing rights under the Disability Discrimination Act in relation to equality of access to health services and to treatment. Neither the constitution nor the handbook refers explicitly to the right to reasonable adjustments for disabled people, which is a key provision of the DDA. All that the documents mention is the right not to be treated less favourably on various grounds, which is not at all the same thing. It would have been very helpful if, at the very least, the handbook could have given clear information about the statutory duties that exist to promote disability, race and gender equality. We know that there are large inequalities in access to primary care on the part of people with mental health problems and people with learning disabilities. A reminder to PCTs about the need to tackle those would not have gone amiss.

I shall say a brief word about carers. Carers engage with the NHS in a completely different way from either patients or ordinary members of the public. Very often, it is carers who facilitate access to services on behalf of the patients they look after, and their own lives are almost as much affected by the quality of those services as those who are in receipt of them. As a result, they bring a different perspective on how well or how badly the NHS is meeting patients’ needs. As the Minister will know, that valuable difference is recognised in other contexts, where health bodies are required to consult and involve carers. The NHS operating framework for 2009-10 says that PCTs must devise joint plans with local authorities to provide carers with breaks. The Putting People First concordat between the NHS and local government recognises that family members and carers are to be treated as experts and partners in the delivery of care. There is a strong case for seeking the views of carers whenever the NHS Constitution is being reviewed or revised. I should add that I am very much in support of Amendment 31 of the noble Baroness, Lady Tonge, which says that the three-yearly report on the practical effect of the Constitution should include a report on how it has affected carers.

Your Lordships will not be surprised that I rise to speak in support of the amendments about carers—that is, Amendments 16, 20 and 31. Not including carers in this matter is a missed opportunity. That is strange for this Government, who have an exemplary record as far as carers are concerned, which I acknowledge. I declare an interest as vice-president of Carers UK and president of Eurocarers. In those roles, I am well aware that what this Government have done for carers is the envy of the world. We have only to look at the national strategy, the Standing Commission on Carers, Acts of Parliament and the kind of regulations and encouragements which the noble Earl, Lord Howe, has already mentioned to us. It is a missed opportunity if we do not mention them specifically in this regard.

One of the problems with which the Minister may be wrestling is the dual role that carers play, because they first of all are patients of the NHS in their own right and have rights in that respect. We should remember that three-quarters of all carers—there are 6 million of them, as I do not need to remind your Lordships—report that their own health, physical, emotional or mental, is adversely affected by the caring role. So they have great needs as patients. However, they then have a second role as suppliers of care. Healthcare does not take place in a vacuum; nor does it take place in hospitals or surgeries, as we might be forgiven for thinking if we listen to some of the debates in your Lordships' House. Healthcare takes place largely in your own home, provided by yourself and your family and to the value of £87 billion, which is very nearly the cost of another health service.

So carers play sometimes confusing roles which are often even in conflict. I make no apology for reminding Members of the Committee of the case that I quoted at Second Reading of the woman who had bowel cancer several years ago. The NHS provides her with excellent follow-up care, which requires her to have a colonoscopy every year. As someone who has that treatment, I know that it lays you out for a couple of days. This woman cannot take that opportunity because she cannot find anyone to care for her husband while she has the treatment.

We need to take very careful account of those kinds of conflicts when we consider carers. Not including them in consultation denies them an opportunity to consider their role, not only as patients in terms of what they need but in terms of what they can contribute. I hope that the Minister will acknowledge that they cannot just be regarded as being in that catch-all term, “the public”. It is logical, consistent and desirable to include carers and I hope that the Minister will do so.

I support what the noble Earl, Lord Howe, said about specialist services. I speak in my role as chair of the Specialised Healthcare Alliance. These services may not be known to many people in healthcare but they constitute 10 per cent of what the health service provides and, as the noble Earl reminded us, often serve people in very great need. We have to think about specialised services as well in this context.

I am, as ever, somewhat confused and find it difficult to understand why a Labour Government have trouble on occasions in using the words “trade unions” in legislation. A number of pieces of legislation have gone through Parliament in recent years which refer to “staff”, but we are never absolutely specific. I am not saying that we should identify any particular trade union, but we should be a little more adventurous in the language we use. There is a generic heading, “staff”, in Clause 3(5)(b), whereas in Clause 2(2), paragraphs (a) to (g), there are listed,

“Strategic Health Authorities … Primary Care Trusts … National Health Service trusts … Special Health Authorities … NHS foundation trusts … the Independent Regulator … the Care Quality Commission”.

Those are specific areas of managerial operation and administration, but trade unions are not included.

My Amendment 18 would include in this process of consultation trade unions and professional organisations representing staff. I propose the amendment following my usual discussions on this Bill and similar Bills with UNISON, a trade union with which I have quite a lot of contact but no pecuniary or financial relationship whatever. I should make that absolutely clear.

UNISON, which was formed from three trade unions, NALGO, NUPE and the Confederation of Health Service Employees, will be in the front line in implementing many areas of this legislation. I should have thought that Ministers would have had immediately in mind the need to consult trade unions, particularly in this area of the Bill which deals with the review of the constitution.

UNISON supports the introduction of the constitution and believes that it will help enshrine and protect the NHS’s vital core principles and responsibilities. The union welcomes measures in the Bill that ensure that every organisation and staff member working within or on behalf of the NHS will have to adhere to the constitution and its accompanying handbook. Ideally, UNISON would want implementation of the constitution to be covered in the contractual relationships that the private sector has with the National Health Service. It is vital, in the union’s view, that the Bill covers all models of provision. It emphasises that a two-tier adherence to the NHS Constitution and handbook must not be possible, now or in the future in particular.

The union agrees that the constitution must remain a relevant document but that it is right that the main reviews take place only once every 10 years. It believes that this will help to focus the constitution on long-term priorities and ensure that it remains above shorter term political debates. The union welcomes the specific naming of staff as a statutory consultee for any changes. However, it would like assurances that employee representative organisations, such as itself and including trade unions, will be specifically consulted as part of any review process.

The union believes that revisions to the handbook should focus only on the technical detail necessary to make sure that the rights outlined in the constitution reflect the most recent legislative terminology and organisational forms and not other matters. The more aspirational pledges within the constitution should be revisited only in the 10-year review envisaged for the actual constitution. While not wanting to make the handbook review process too cumbersome, it would like assurances that key stakeholders, including staff and patients—I do not like the word “stakeholders” but I am using it today—are involved with proposed revisions to the NHS handbook if they go any further than technical amendments.

On Second Reading, my noble friend gave some assurances that such organisations would be consulted with. However, the union would be keen to see these assurances in the Bill. They should be, and we should not duck what I believe is a Labour Government responsibility.

I have put my name to one of these amendments concerning carers. Critical to the success of the NHS Constitution is to recognise how people perceive it, use it and, indeed, how the staff wish to work in it. After 10 years we really should have some sort of an indication about how effective it is. Therefore, I am very pleased that the Government will consult when undertaking this 10-year review.

I want to say a few words about consultation. Years ago it was highly valued, but it has always been used as a proxy for giving people some influence over policy in a huge and centralised monopoly-run service. That is one of the ways that we can try to get people to have some influence. Over the years, we have consulted on so much that it is losing some of its force. Indeed, some people today tell me that they have consultation fatigue as they are consulted on nearly everything that comes out. Certainly, it is often thought that it is a piece of bureaucracy that the NHS has to go through. Local organisations perceive that the decisions have already been taken and that this is just some exercise that takes three months and has to be gone through.

In the commercial world, as a customer you can usually walk away and find another provider, be it a supermarket or a private healthcare provider if you can afford it. The business soon knows whether its product is valued. It has to balance the books. If it does not, the business simply goes out of business.

The user has little influence in the current NHS. Consultation seems to be the only tool to involve people in policy decisions. In time, perhaps direct payments, which we shall discuss later, will make a difference. Until direct payments are established and we see the result of them, we have to fall back on this rather barren process of consultation.

I am sure that the noble Lord, Lord Darzi, will say to me, “Hang on a minute”; when he was drawing up his document High Quality Care for All, he took enormous trouble to consult widely. Moreover, he set up structures across every NHS region in the country to get the views that were incorporated into the overall policy. I read in the Second Reading debate that the noble Baroness, Lady Emerton, said how much pleasure working with some of these groups gave her. I have heard other staff say that they felt it was a valuable exercise. It was a massive exercise. It was very well thought out and structured, and it was expensive in time and money, but it was effective because the noble Lord listened and acted on the views expressed. Of course, the views were not unanimous, but they never are when you go out to consultation.

I am saying not that consultation never works but that it does not work very often, and that is particularly true when it comes to fraught issues such as closing local services. I think that the time has come when we have to seek some alternative methods of empowering patients and the public, but at the moment we have to go with what is on offer.

Although I have enormous sympathy with a number of the bodies suggested in the amendments, I attach my name particularly to carers, principally because I am working with carers and because I am one myself. Caring for an elderly, dementing close relative is miserable and life-restricting. However, I know that other carers have a much more difficult life than I do and that they address their difficulties very bravely.

The noble Baroness, Lady Pitkeathley, mentioned the 6 million or so who literally give their lives for years on end to care for someone else, and often it is not a choice but a duty. They are the heroes of our society and we should give them all the help that we can. Knowing their rights as set out in the constitution will, I think, help. In 10 years’ time the world will be different and their input in revising the constitution will be of considerable value. They have first-hand knowledge of the strengths and weaknesses of the NHS and they should be listened to.

In recent years, we have included the word “public” when talking about patients—patient and public involvement, or PPI. It may have been the noble Baroness, Lady Pitkeathley, who said that when this is mentioned it is usually followed by the plaintive little cry, “How about the carers?”. Could we adopt the phrase “patient, public and carer involvement”, or PPCI, as part of our regular terminology? That seems to me to be very simple. Words are important. They frame a mindset, and PPCI would become as natural to us as PPI. It would ensure that carers were always included, as they are not patients. Some are patients in their own right but, in this context, they are people who care for others and are not mere members of the public. I think they should have a distinct status in our society and in the legislation that we draw up.

This is an exceptionally difficult and complex issue. It is clear that in relation to any review of the NHS Constitution local authorities must be consulted. All noble Lords who have contributed to the debate on this group of amendments have spoken very persuasively and with expertise based on their personal experience. Plainly, it is important that carers should be consulted as well as trade unions and professional organisations representing staff, as the noble Lord, Lord Campbell-Savours, said. Clearly, all these individuals have an abiding interest in the National Health Service, in the constitution and in any revision that may be developed in future.

Incidentally, the noble Earl referred to the BMA. It is not widely known that the BMA is a registered trade union, although it is not affiliated to the Trades Union Congress. The BMA and the Royal College of Nursing might be included but what about physiotherapists, occupational therapists, medical technologists and clinical psychologists? In the light of what we said about the crucial importance of the NHS in relation to educational issues and research, what about the Association of Medical Research Charities, the Medical Research Council, the General Medical Council, the bodies concerned with the education of nurses and the Health Professions Council? One could go on and on. We are in serious danger of going back to the question of developing a list.

I sympathise with the Minister about the challenge with which he is faced. These are very important issues and the organisations referred to are vital to the future of the National Health Service, but how can the Government find inclusive terms which embrace the necessity to consult all these bodies? It is a very difficult issue. These are all very worthy amendments but, as they stand, they would exclude the possibility of consulting a large number of other organisations which also need to be consulted. Happily, there is a phrase about other organisations that the Secretary of State may prescribe. That is a very important part of this exercise. I believe that the Minister has a very difficult task in making these amendments inclusive but not at the same time too prescriptive in excluding many other bodies which are vital to the future of the NHS and require to be consulted.

My friend the noble Lord, Lord Walton, is as usual highly eloquent but, as it is, we already have a list. The list is here. Many of us would make a particular plea for one specific set of amendments—Amendments 16, 20 and 31—about carers. We make that plea partly because this Government have done so much to ensure that carers are now seen but also because of the particular role that carers play in supporting the health service. I speak as someone who previously might have thought that I know what other members of the public might have done, despite having had elderly parents and all the care that goes on through life. However, recently I became the carer of a cousin with Alzheimer’s in Sheffield, and am trying to find my way through an extraordinary maze of health and social care, by which even my expertise is totally defeated.

Carers carrying out those sorts of tasks, with that sort of experience, should be consulted because they have a relevant, direct insight into what works and what does not work. That is particularly the case with some of the things that the noble Baroness, Lady Barker, was saying earlier—how social care and health care fit together. Unless we have carers in this list, they may well be seen as ordinary members of the public. I feel very different as an ordinary member of the public who happens to be linked to St Thomas’ Hospital through the LINks programme, because I am a user of St Thomas’ Hospital, from how I feel as a carer trying to find my way through the maze of the services 200 miles away from someone over whom I now have lasting power of attorney, his wife having died and since he has no other immediate relative.

I support what the noble Earl, Lord Howe, said about specialist services. I alluded to that briefly early on in these debates, because those services often get forgotten. I declare an interest as the patron and trustee of an organisation called Little Hearts Matter, which deals with children with hypoplastic left heart syndrome and other “half a heart”- type difficulties. Those specialist services are utterly crucial, not only to the well-being of those children but to their very lives, with the oldest being only 18 and all children before that having died. Unless those specialist services are properly consulted and properly represented, those families will find that they do not have the kind of services in which they can have confidence. They do not want it next door; they want the kind of service that will meet their needs.

With all the understanding about lists—and I have views about that—I think that carers are an exception. Somehow we must ensure that specialist services are properly consulted.

I very much support the noble Earl, Lord Howe, on specialised services. I declare an interest as someone with a spinal injury. I have Amendment 126, which relates to services for spinal injury patients, which are in an absolute crisis situation at the moment because there are not enough beds. The specialised services include those with rare conditions, and there are many of them. There are rare cancers, rare neurological conditions, rare heart conditions, rare muscular conditions and rare conditions in children—and there are many others. They sometimes have to travel for miles to get the services they need. Many of them are on orphan drugs.

All this can deal with the commissioning of services, which is becoming exceedingly difficult. For example, some of these patients have a problem with borders. A patient who lived in Wales, one mile from the orthopaedic hospital in Oswestry, was not allowed to be sent there; he had to go to Cardiff. Think of the effect of that on his family, travelling down to Cardiff. That is an example of the unnecessary difficulties they face.

I hope that the Minister, with all his experience, will look at this. It entails NICE, orphan drugs and specialised services. It is very important. And, of course, I support our carers; as has been said, they are vital.

I join the noble Baroness, Lady Masham, in strongly supporting the points made by the noble Earl, Lord Howe, especially in relation to specialised services and to disabled people who, as we have heard, have not been well served by the health services. I declare an interest as someone with a specialist condition.

I also support the points made about carers by my noble friend Lady Pitkeathley. I know that when I have complications due to my spinal cord injury, it is my partner who then becomes my carer and is even more dependent on the quality of the health services than I am at that point. I hope my noble friend the Minister will be able to respond encouragingly to the points that have been made.

Amendment 13 proposes that the Secretary of State consults local authorities on any revision of the constitution where they are affected. Amendments 15 to 21 all propose that particular groups must be consulted during each 10-year review of the constitution. Amendment 31 proposes that the Secretary of State’s three-yearly report on the effect of the constitution considers the effect on carers in addition to patients, staff and members of the public. Amendment 14 would place a duty on the Secretary of State to publish a report on the results of future consultations on any revision of the NHS Constitution. I understand the intention behind these amendments but it is important to give some context for the current intention as it is set out in the Bill, and to explain that each of these groups is captured in the current drafting of Clause 3.

Amendment 13, tabled by the noble Baronesses, Lady Barker and Lady Tonge, proposes that local authorities be specifically consulted on any revision of the constitution. I shall clarify the purpose of the interim revisions to the constitution to reassure the noble Baronesses that those who are affected by any revision will indeed be consulted.

The constitution is intended to be an enduring document, and any substantial changes should be made as part of the 10-year review. However, it is possible that changes in law or departmental policy will cause parts of the constitution to become out of date. We do not believe that it would be right to wait until the next 10-year review before making such relatively minor revisions, which is why we have made provision in the legislation for the Secretary of State to revise the constitution.

Clause 3(3) ensures that the Secretary of State will be under an obligation to consult those who would be affected by any revision. He must consult,

“other persons as appear to the Secretary of State to be affected by the proposed revision”.

That would include local authorities, where they are affected. We have deliberately chosen not to specify which bodies must be consulted on revisions to the constitution, as there may be some revisions that are not relevant to them. We do not believe that it would be logical to impose a legal obligation on the Secretary of State to consult specific bodies if the proposed revision did not affect them in any way. However, I reassure the Committee again that where a revision affects certain bodies, it is fully our intent to consult them.

My noble friend says that it is not specific in the sense of identifying individual bodies. However, Clause 3(5)(d) states,

“the bodies and persons listed in section 2(2)”.

Seven of them are then laid out. So it is specific and identifies individual organisations, some of which may not be affected by any particular proposed amendment or revision.

I am grateful for that intervention. I am referring to revision of the constitution, which could happen much sooner than in 10 years, rather than the constitution itself. I am talking about minor revisions and changes in policy that may be necessary and about how we consult in relation to them. I will come back to the issue of the 10-year review of the constitution. I agree, though, that local authorities have been, and will remain, a vital group in shaping the constitution or any future changes.

Amendments 15 and 17, tabled by the noble Earl, Lord Howe, would add to the subsection that requires patients to be consulted on the 10-year review of the constitution the words,

“including such bodies representing patients as the Secretary of State considers appropriate”,

and, to the subsection requiring staff to be consulted, the words,

“including such bodies representing staff as the Secretary of State considers appropriate”.

Similarly, Amendment 18, tabled by my noble friend Lord Campbell-Savours, proposes that trade unions and professional organisations representing staff are consulted. This makes a reference to the 10-year review. I reassure the Committee that bodies representing patients and staff, including trade unions and professional bodies, have been throughout the past 18 months, and will remain, a vital group in shaping the constitution and any future changes.

Many patient groups, including the Patients Forum, contributed to the production of the final NHS Constitution, as did many bodies representing staff, such as the NHS Confederation and Unison, as my noble friend pointed out. I am pleased that the chair of the Patients Forum, Sally Brearley, believes that:

“The NHS Constitution is a very valuable re-affirmation of the principles and values of the NHS … It demonstrates the commitment of Government to the NHS, and of the NHS to its patients”.

Similarly, the Head of Health at UNISON, Karen Jennings, has declared that the constitution,

“is a vision of which Nye Bevan could be proud”.

Our intention is to continue to work with as many bodies representing patients and staff as possible in the 10-yearly review of the constitution in any more minor revisions where they are affected and, more broadly, in ensuring that the constitution has a real impact. However, we believe that the legislation already captures these bodies in the 10-year review: Clause 3(5) sets out the duty to consult, among others, patients, staff and,

“such other persons as the Secretary of State considers appropriate”.

That could include the bodies representing patients and staff; indeed, I can put on the record our intention that such bodies will be consulted on any 10-year review of the constitution.

I turn to carers. Amendments 16 and 20, tabled by the noble Baronesses, Lady Barker and Lady Tonge, the noble Earl, Lord Howe, and the noble Baroness, Lady Cumberlege, propose that carers must be specifically consulted on the 10-year review of the constitution, a point made strongly by the noble Baroness, Lady Pitkeathley. Again, I reassure the Committee that we recognise the importance of the role of carers in the NHS and the importance of carers being an integral part of the constitution.

Indeed, noble Lords will be aware that one of the core principles of the constitution states that NHS services must reflect the needs and preferences of patients, their families and their carers. I am pleased that Carers UK, which we have already mentioned, was able to support the introduction of the constitution, saying that the new NHS Constitution gives carers,

“prominence as partners in care. We welcome this as the beginning of a culture change in the NHS towards valuing the extraordinary caring contribution of ordinary people.”

The Government’s intention is that when the constitution is reviewed in 10 years, carers will be included in the consultations. It is also the Government’s intention that carers should be consulted on those affected by more minor revisions of the NHS constitution. As drafted, Clause 3(3) and 3(5) refers to the need to consult members of the public and it was our intention that carers would be part of that. But I have listened; I will take into account what has been said and come back at a later stage having looked at the issue more specifically.

Amendment 19 proposes that local involvement networks, or LINks, be consulted on the 10-year review of the constitution. Again, the Government recognise the valuable part that LINks played in shaping the constitution that is now before the Committee. Many LINks across England contributed to the consultation process, including those at Gateshead, Hull, Gloucestershire and Sandwell. Again, it is our intention to continue consulting local involvement networks on relevant matters when reviewing the constitution or when the constitution is reviewed in 10 years’ time.

In Amendment 21, the noble Baronesses, Lady Barker and Lady Tonge, propose that local authorities be consulted on the 10-yearly review of the NHS Constitution. Again we understand the importance of joined-up care and we believe that local authorities have already been captured. I am sorry this goes on; this involves each contributor based on the long list eloquently put by the noble Lord, Lord Walton.

I can reassure the noble Earl, Lord Howe, that producing a report on the result of the constitution, as proposed in Amendment 14, is a standard government practice. For this reason, the amendment is unnecessary. I return to the Government’s code of practice on consultation which sets out that, following a consultation exercise, a summary of any significant comment should be provided. This feedback should normally set out what decisions have been taken in the light of what was learnt from the consultation exercise. This information should normally be published before or alongside any further action. I can put on record that the Department of Health has every intention of complying with this code of practice when it consults on revisions of the NHS Constitution. Indeed, it has produced a written response to last year’s consultation on the draft constitution.

The noble Baroness, Lady Cumberlege, was very kind in relation to the consultation exercise that the next stage review went through. I agree that some have a cynical view about consultations, mostly clinical consultations, which they say bring groups of clinicians together to come up with the answer that we want. Far from it. The next stage review engaged more than 2,000 clinicians, most of whom felt empowered by the consultation, and what is in front of the Committee in High Quality Care for All is, more or less, the policies that we captured through consulting with clinicians. What we have done in the constitution is based very much on similar principles.

I hope that I have been able to clarify why it will not be necessary to extend the list of persons or bodies to be consulted every 10 years. However, I have some sympathy with the persuasive arguments that noble Lords have put forward for recognising certain persons or bodies explicitly. I am more than happy to discuss these in greater detail—carers specifically—and some other groups that have been pointed out in this important debate. I shall look again at the drafting of the clause to ensure that the balance is right in relation to the 10-year review and the report, keeping in mind the advice that I have received from the noble Lord, Lord Walton. In giving these commitments to look at the issue again and at the relevant parts of subsections (3) and (5), I hope that the noble Baroness will feel able to withdraw her amendment.

The noble Baroness will be fully aware—and I should probably declare an interest here—that I work in a specialist hospital. I have a very high regard for specialist services. We have debated many times the role of specialist providers. High Quality Care for All and the 10 regional reports show a high regard for specialist services. That is one area in which I have tremendous confidence, as have, historically, most of those who commission specialist services. I hope that they will look at their consultative processes in greater detail in future because they are important services and are the jewels in the crown of NHS provision.

On behalf of all noble Lords, I thank the Minister for the very detailed and considered response that he gave to the debate. It was characteristically generous and assiduous of him. I sincerely thank him for that.

I thank noble Lords for their contributions. This group of amendments has answered for me what I might call Lord Walton’s question: if there is to be a list, who should be on it? I come back to what I think is the answer to that. It was enormously helpful to have explained the distinction between small revisions to be carried out periodically and the process of the 10-year review. The Minister’s general commitment to the inclusion of a wide range of stakeholders, to use the jargon, was welcome. The success of this document, once it is launched, does not rest solely with the NHS. It cannot; the NHS cannot implement it all—it has to be done in conjunction with others. There was recognition of that in what the Minister said.

To the noble Lord, Lord Campbell-Savours, I say, “Hold on”. At the rate they are nationalising banks, the noble Lord may yet see a piece of legislation containing the words “trade unions”, so he should not give up. Just persist.

It was important to have the discussion about specialised services. There is always a legitimate concern that those who have specialised conditions tend to be pushed out of the picture by those who have conditions that are more prevalent and therefore tend to be far higher up the political list.

We may have teased out one thing in the discussion. There is a case for putting carers into this. That point was made principally by the noble Baroness, Lady Wilkins, who talked about the fact that her partner became her carer at a particular point. The question of who is a carer and who is not changes over time. That is one thing. The second thing is that in the NHS, and increasingly in social care, there is a more coherent and consistent view of users and the rights of users. The distinction is that in the NHS it is more likely that practitioners will see users without their carers being present and will therefore be less likely to feel comfortable with breaking clinical confidentiality. Therefore, with all the best will in the world, carers in the NHS are in a slightly different position from those in social care. That is not to say that there is bad practice in social care—there is not—but there is a recognition in social care that the majority of the work is done by informal carers and that they have to be involved in their own right much more so than in the NHS.

For those two reasons, it was very good that we drew out why carers have to be mentioned distinctly. Nobody wants the review of the constitution to become a cumbersome exercise, but we want it to be valid and to throw out valid results and challenges to the NHS every 10 years. That would be a very useful thing to do. With those caveats, I welcome the Minister’s agreement that he will take away part of our discussion and perhaps refer to it at a later stage. I beg leave to withdraw the amendment.

Amendment 13 withdrawn.

Amendments 14 to 21 not moved.

Amendment 22

Moved by

22: Clause 3, page 3, line 17, at end insert—

“( ) The review will take into account the role the NHS Constitution has played in bringing together health and social care.”

As noble Lords will recognise by the drafting, this is a probing amendment. I apologise for the deficiencies in the drafting. The amendment goes in part to the ground that the noble Earl, Lord Howe, opened up for us in a previous debate. The review of the constitution is laid out before us as a process or mechanism. There is not a great deal about the substance and objective of such a review. It is self-evident that it will be a process that is gone through to try to determine the extent to which those principles have been upheld. As somebody who, at least in part, makes their living from helping organisations to do evaluation processes, I could go on for some considerable time about how you evaluate principles. I am afraid that these days I charge a fee for that, so I will not.

It is right for us to probe what the outcome of the review is meant to be. It is also right that we should identify this one particular area—that is, the review taking into account the extent to which the NHS Constitution has played a role in bringing together health and social care. I have a particular reason for saying that. It is possible that the NHS could achieve the aspirations, aims and goals that are set out in the constitution and handbook. It could do so at the expense of social care and it could do so at the expense of the resources that are devoted to social care. One fundamentally important part of this will be to evaluate the NHS on the extent to which it, in conjunction with others, achieves the aims and objectives set out before it in the constitution. Therefore, it is worth probing in the amendment—we know a bit about the process—what the intended outcome is going to be, and the extent to which this constitution and its implementation might act as a magnet for resources drawn from other areas of public services. I beg to move.

Amendment 22 would place a duty on the Secretary of State to take into account any impact on bringing together health and social care when conducting any review of the NHS Constitution.

I think that it would be helpful if I first give some context around the proposals for the review of the constitution. As we have said previously, the intention behind the 10-year review is to keep it up to date and to ensure that it remains fit for purpose. It is a way of ensuring that, while remaining an enduring document, the constitution can keep up with changes in policy and the law and with people’s changing expectations of the NHS.

We have not sought to specify in the Bill particular areas that the review should take into account over and above others, nor do I think that it would be appropriate to do so. I appreciate, however, that the noble Baronesses, Lady Tonge and Lady Barker, were concerned at Second Reading that the NHS Constitution did not give enough attention to the interface between the NHS and social care. I should like to reassure her on two counts. First, of course it remains the Government’s priority that the NHS and social care systems should work together as seamlessly as possible. For example, following High Quality Care for All, we are piloting new models of integrated care provision and looking at innovative ways of improving the interface between health and social care systems. Secondly, although the NHS Constitution is a constitution for the NHS and not for social care, it highlights throughout the importance of joined-up services. For example, one of the seven principles is:

“The NHS works across organisational boundaries and in partnership with other organisations in the interest of patients, local communities and the wider population”.

The principle goes on to say:

“The NHS is committed to working jointly with local authorities and a wide range of other private, public and third sector organisations at national and local level to provide and deliver improvements in health and well-being”.

The NHS Constitution also contains a pledge on the part of the NHS to make the transition as smooth as possible when patients are referred between services. This is particularly relevant to transitions between health and social care services.

Noble Lords will be aware that Clause 5 would require the Secretary of State to report on the effect of the constitution every three years. Such a report would of course look at partnerships and at working across organisational boundaries, given that these are such important themes in the NHS Constitution. The other issue is whether there should be a social care constitution. One is not planned but we are about to launch a Green Paper on social care and I have no doubt that that will be debated in due course.

I hope that I have reassured the noble Baroness sufficiently on this matter for her to withdraw the amendment.

I thank the Minister very much for that reply. It is worth bringing to mind that a year ago noble Lords—many of whom are here today—queued up in this Room to take part in the Government’s plans for the CQC. It was debated in great detail because there was concern that there would be an imbalance in the regulatory body as between health and social care. We may have been paranoid then and we may be now because we continue to be concerned about the extent to which health and social care are not equal partners on the ground. However, I do not think that we are paranoid. The Wanless report set out how important it is for the NHS to be fully engaged with social care planning systems so that the preventive agenda can be built up and the NHS does not become a body which stacks up acute needs for the future. That is the important point.

I am intrigued by the idea of a social care constitution. I shall save my detailed views for when we come to debate the Green Paper but I think that it would be miraculous to draw up a constitution when there is no political or social agreement about what social care levels of entitlement are or how they should be funded. However, one should never rule out what one does not know.

For the moment, I shall withdraw the amendment. However, if only one thing were to be prescribed as an output for this review process, it should be the NHS Constitution because it is of such fundamental importance to health, health promotion and the prevention of ill health. However, due to the lateness of the hour, I beg leave to withdraw the amendment.

Amendment 22 withdrawn.

Amendment 23

Moved by

23: Clause 3, page 3, line 19, at end insert “and lay a copy before Parliament”

This amendment is designed to highlight an anomalous fact as regards this part of the Bill, a fact to which I referred earlier, which is that Parliament is being asked to enshrine “regard to the NHS Constitution” in primary legislation, but at the same time has no present or prospective opportunity to consider the contents of that constitution.

This is not just an academic objection. In the end, what it means is that the rights of patients and staff in the NHS are whatever the Secretary of State says they are, not what Parliament says they should be. In this sense, Parliament is being asked to sign a blank cheque to Ministers, whether of this Government or of a future Government. Bearing in mind how seminal a document and how far reaching in its effects the constitution is meant to be, I find that troubling and difficult to accept. The Minister may reply that the Secretary of State is accountable to Parliament in all that he does, which is certainly true. I accept—how could I not?—that it would be completely impossible for a Secretary of State to refer to Parliament before implementing each and every executive decision that he takes. He has to be allowed to get on with his job.

However, the constitution is different from an ordinary executive ministerial decision. It is meant to underpin for the long term everything that the NHS does and a great deal of what Ministers are able to do or not to do. With each right that the constitution defines or creates, it shapes ipso facto future health policy. Are these not matters which Parliament should be given an automatic opportunity to scrutinise? One has only to think of the right to choice that the constitution enshrines for the very first time to appreciate that these are in no sense trivial matters for health policy. However, according to the Bill, Parliament is out of the frame as regards approving the document.

The Government have published a separate statement of NHS accountability which makes considerable play of the fact that Ministers are accountable to Parliament. The NHS Constitution itself states, near the beginning, as part of the seventh key principle that,

“it is the Government which sets the framework for the NHS and which is accountable to Parliament for its operation”.

That is true up to a point, yes, but surely not totally. We do not say that it is up to the Government to set the framework for the NHS in any way that they want. They cannot, for example, invent foundation trusts or abolish a health regulator without first obtaining the approval of Parliament. Parliament has a role in defining the framework for the NHS. Equally, some ministerial decisions have to come before Parliament in the form of a statutory instrument and cannot become law unless and until Parliament has signified its approval or absence of disapproval.

The question for us is whether the NHS Constitution is of a kind which merits some form of nod to the sovereignty Parliament or whether it is not. I have to say that I think it is. The Minister has previously argued that he does not believe it is appropriate to include any element of the NHS Constitution in the Bill. We can continue to discuss that. However, the amendment proposes something much more modest. It is merely saying that once the constitution has been revised, a copy of it should be placed before Parliament. That duty of placing it before Parliament ties in the legislature, even if only in a loose way, to the content of the constitution. I do not think that this is a great deal to ask. I beg to move.

I support the amendment of the noble Earl, Lord Howe, having said during the debate on the principles that the key to this issue was the problem of not having the constitution placed before Parliament.

The purpose of the amendment is to place a duty on the Secretary of State to lay a copy of any revised version of the NHS Constitution before Parliament as an Act paper. First, I assure the noble Earl that I agree with his assessment of the importance of Parliamentary accountability, but within the context of the constitution. I should remind Members of the Committee that most of the rights in the constitution are already enshrined in law, with the exception of the three new rights that we debated at Second Reading.

The Government would always expect to make a document of such importance available to parliamentarians, usually by placing a copy in the Library and issuing a Written Ministerial Statement. Indeed, Ministers are bound by the Ministerial Code to make important announcements such as this to Parliament.

The noble Earl will of course be aware that when the constitution was published on 21 January it was accompanied by a Written Ministerial Statement and copies were placed in the Library. I do not consider that it is necessary to lay before Parliament future versions of the Act paper rather than place them in the Library.

Furthermore, the constitution is intended to be a public-facing document, unlike annual reports or accounts of non-departmental public bodies, which are often laid as Act papers. Indeed, the constitution is a living, although enduring, document, which will be updated over time. We need the flexibility to alter it, and the current arrangements allow us that flexibility while giving Parliament proper sight of the document. There is no question of the constitution being changed by the back door, given our commitment to consult on any revisions, as we debated earlier.

Given my reassurances that we have every intention to follow parliamentary procedures, I hope that the noble Earl feels able to withdraw his amendment.

Those are important reassurances, which I take on board fully. I was reassured in particular by the Minister’s mention of the Ministerial Code, which I hope and believe will pertain throughout future Governments. I acknowledge of course that a Written Statement was made to Parliament when the present constitution was signed. I shall consider carefully what he said and whether it is sufficient for the purposes of this Committee. I was grateful for the support of the noble Baroness, Lady Howarth, for the amendment. The amendment may be unnecessary in the light of what the Minister said. I shall take advice on that point. In the mean time, I beg leave to withdraw it.

Amendment 23 withdrawn.

Committee adjourned at 7.21 pm.