Mr.
O'Brien: In a sense, Parliament has already debated much
of this, because if a legal cause of action arises as a result of a
statute, Parliament will have passed that statute. All that the
constitution does is, in effect, to declare the law that currently
exists and bring it together in a clearer, more convenient way for the
staff of the NHS, for those who contract with it and for
patients.
Previously,
such a measure did not exist; it is a declaratory document, saying what
Parliament has already decided and what the courts have already decided
by way of common law. It is therefore useful in itself and can be
referred to in the courts, once the legislation is passed. However, we
are not creating a whole series of new avenues in which the law can
intrude. As for the question of whether Parliament needs to debate the
measure, it is effectively doing so. On the issue of whether Parliament
is pretending that this something which it is not, we have not sought
to do so. We have made it clear that this is a declaratory document,
setting out for those who use the NHS exactly
what its constitution is.
There has
been no sidelining of Parliament, which has a role in determining the
legislation underpinning the constitution—that is, most of the
principles as they are rooted in legislation, and each of the rights.
In addition, Parliament has a role in approving any changes to the
principles of the constitution. We listened to debates in the other
place, and responded by obliging the Secretary of State to amend the
principles via regulation. In doing so, we have ensured that no
Government can change the guiding principles of the NHS without
parliamentary scrutiny.
It is
important to remember that the final constitution was not dreamt up in
Whitehall; it is, as the hon. Member for Romsey has said, the result of
extensive research and full consultation with patients, the public and
NHS staff, and it reflects what matters to them. In summary, Parliament
has already had a say on the legislation underpinning the constitution,
and no changes to the principles that it sets out can be made without
parliamentary approval. There are several provisions in the Bill
obliging the Secretary of State to consult patients, staff and other
affected bodies—that is, the people who have created this
constitution—before any changes can be made.
I therefore
hope that I have covered most of the points that have been raised, and
I hope that the hon. Gentleman will withdraw his amendment. However,
he asked, too, about clause 3(5), and I can confirm
that the regulations to which it refers are subject to the
negative resolution procedure. The Delegated Powers and Regulatory
Reform Committee advised officials that it did not need to see the new
power. I understand that that was because of the change made in the
other place. It was agreed that it did not have
to be referred at that stage, so it did not have to opine on it. I
gather that the Delegated Powers and Regulatory Reform Committee was
happy with the original drafting of the Bill, and did not express any
concerns. Because of that concession in the other place, that is how
the matter was dealt with.
The
hon. Gentleman asked whether other Acts immediately came to mind as
measures in which dates were set. I cannot think of another such
measure, but I have explained why, the Bill gives clarity to later
provisions. We refer to a particular series of reviews that need to
take place, and it is useful to have the date in the legislation. He
asked me to write to him about the word “secured”, and I
am happy to do so.
The
Chairman: Order. Reference to later proposals
is simply a reference and does not prejudice later
debate.
11.15
am Lynda
Waltho (Stourbridge) (Lab): I wish to declare that my
husband, Councillor Stephen Waltho, is a governing member of the Dudley
Group of Hospitals NHS
Trust.
The
Chairman: That is noted on the
record. Mr.
John Horam (Orpington) (Con): I am interested to hear what
the Minister said about the procedure and process that went into the
formulation of the constitution published by the Secretary of State in
January 2009. He explained that there had been a long process involving
all kinds of stakeholders and so on. Did the resulting declaratory
constitution, which he has explained, lead to no changes? Was it simply
a clearer summary of the existing situation with no changes, or were
there any revisions of words, thoughts or principles in the new
constitution that were not in the existing legal
situation? If
we were trying to get a clear summary of the situation, it would be
surprising if there was no change at all in what had gone before. If
there is any change that could be seen as a change by a lawyer—I
am not a lawyer—even if it was only a subtle change or a change
of emphasis rather than a change of fundamental principles, surely that
would mean there would be a new element that might be justiciable. Is
there a contradiction, therefore, given the Minister’s assertion
that there is nothing new, and nothing that could be newly justiciable?
That is unlikely to be the case if the result of this comprehensive
process is that there will be some new perception of the arrangements
for the National Health Service? Could he enlighten me on that
point? Mr.
Mike O'Brien: I am happy to say that three new
rights were set out clearly in the constitution as a result of the
consultation. One was in relation to vaccines, another in relation to
choice and another in relation to rational decisions on the funding of
drugs. Each has directions and regulations underpinning it, so in
effect other regulations and directions underpin those rights. As a
result of the consultation, however, I am informed that the proposals
were altered, and brought into the constitutional set-up so that they
could become part of the way in which the NHS is run under the
constitution. As a result of that consultation, yes, there were
changes. The three changes I referred to were already in law but have
now been brought into the constitution following the
consultation.
The hon.
Gentleman asks whether the creation of this new element—the
constitution—creates a level of justiciability that did not
previously exist. He suggests that surely it must. To some extent he is
right, in the sense that it may be referred to in court, but I cannot
guarantee to him that as a result of those references, some case law
might not arise that draws a particular point from the constitutional
document that has been referred to in a court case and which may not at
some point, as a result of the operation of the common law and the
courts, produce a new way of looking at the NHS and a new area of law.
We do not know that. Any time we make legislation we are to some extent
at the mercy of the judges to see how that legislation operates in
practice. Parliament would have to look at the measure again in the
future to see whether it approves of the way it has been dealt
with.
The hon.
Gentleman is right to some extent but not wholly right: yes, the
document can be referred to and yes, it may lead to affecting the view
of judges in a particular case. However, a new cause of action cannot
arise as a result of this constitution, because it is based on causes
of action that exist now. Anyone who brings a case now would have to
have a cause of action that arises now. Under existing law, they would
not get one merely from the constitution. However, when the matter goes
to court, can it be referred to? Yes, it can, because it is in law. I
hope that answers the points, but I am happy to give
way.
Mr.
Horam: My knowledge of the law is based on watching
“Judge John Deed”, which may be unusual, although the
series is rather interesting, as a matter of fact, and my wife thinks
it is fantastic.
As a complete
non-lawyer, I am still puzzled by the fact that something can be
referred to in a case—presumably a lawyer refers to something
because it helps his case, and is a point in its favour—and will
be used and given some weight in the law courts, even though it may not
be technically judiciable in the sense a lawyer might understand. It
will none the less be used to some extent, which creates an area of
uncertainty, as I think the Minister has admitted, that may in the
future throw up case law that may well change the law. Is that the
Minister’s
understanding? Mr.
O'Brien: I would not describe it as an area of
uncertainty, in the sense that judges always say they merely declare
the law as it exists, not as they might want it to be—unless
they are the late Lord Denning. It is the case, however, that judges in
practice have to look at new circumstances and the relation of the law
to those new circumstances. Therefore, they will, in effect, create
law, so whether or not that is an area of uncertainty, the whole aim of
the law is to create certainty, so I dispute the hon.
Gentleman’s wording. If he is asking whether this, at some stage
in the future, could produce changes in the law and the way in which we
look at the NHS, the answer is yes. Does it create a new area that
could produce a case that could not be taken now? No. That is an
important distinction, and probably his Front Benchers and the
Government are broadly in the same place in terms of what we would like
to see—that we have a constitution that is clear, which people
can understand, which declares what their rights are, but does not
create a lawyers’ charter enabling a whole series of new
interventions by the law in the NHS that do not exist
today.
Mr.
Stephen O'Brien: That last set of exchanges was
particularly helpful, and was useful in setting the context to widen
slightly our discussion beyond the immediate amendment, which is on the
date-specificity of the document referred to in the proposed statute.
The broader issue leads back to the judgment to be made on the
amendment. The Minister has been very clear that it is the
Government’s intent to be declaratory. In his last set of
interactions with my hon. Friend the Member for Orpington, he talked
about there not being an area of uncertainty, but in the way he
described it, it does carry the area of possibility—as it might
be referred to in legal proceedings—without creating new causes
of action. I think I have understood him correctly in that
analysis.
It may be some
years before we go down this track, but in the course of any cases that
come before the courts and in the precedent-setting, which is obviously
in the nature of the law in this country under the common law, it will
be interesting to see whether in a judgment—as both judges and
legal academics look back on cases decided over the years with this law
in place, in addition to all the other legislative provisions that give
rise to the causes of action that, on the Minister’s analysis,
pre-exist this piece of legislation—reference to the
constitution in these legal provisions ends up being obiter dicta, not
central to the decision made by the judge, or what is known in legal
terms as ratio decidendi, a core stream of thinking that leads to the
judgment and any remedy that is then
imposed. In
many ways, we are discussing what may or may not turn out to be the
legal journey that takes place from here. That is why the discussion
has been important. We need to be absolutely clear that—even by
the record of these proceedings—it will be possible to refer to
this discussion were it to become important whether or not a new legal
right has been created. It is clear that the Minister has asserted the
Government’s position that the provision is intended to be
declaratory and, therefore, is not intended to create new legal rights
or causes of action. We must ensure that all that has been well heard
and is on the
record. I
remain concerned about the date specificity, although not because the
Minister gave a particularly weak answer. His justification was that
referring to a document by its date provided clarity. He could not
immediately call to mind any other legislation that had taken that
approach, although he said that it might have been done by reference
to, say, a Command Paper. However, it strikes me that the difficulty is
that if there is the potential for the provision to be something that
is prayed in aid and referred to, it is extraordinary that, as a matter
of reference, we do not continue to have a document that is referred to
as an extant document of the constitution, which is what the cumulative
attempt of the Bill intends to carry. Any extant NHS constitution,
however, is not seen to have been something that has been approved by
both Houses of Parliament. The two amendments go together—the
substantive one is amendment 2—but to make the point emphatic,
and to test the opinion of the House, I will be content to divide on
just amendment 1, which is the first of the group.
Question
put, That the amendment be
made. The
Committee divided: Ayes 5, Noes
8.
Division
No.
1] Question
accordingly negatived.
Question
proposed, That the clause stand part of the
Bill.
Mr.
Mike O'Brien: I am conscious of your strictures,
Mr. O’Hara.
Question
put and agreed to.
Clause 1
accordingly ordered to stand part of the
Bill.
Clause
2duty
to have regard to nhs
constitution 11.30
am
Mr.
Stephen O'Brien: I beg to move amendment 4, in
clause 2, page 1, line 16, after
‘to’, insert
‘the core principles of the NHS
listed in subsection (3)
and’.
The
Chairman: With this it will be convenient to discuss
amendment 5, in
clause 2, page 2, line 8, at
end insert— ‘(3) The core
principles of the NHS 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.’. Amendment
6, in clause 2, line 8, at end
insert— ‘(3) The core
principles of the NHS are
that— (a) the NHS
provides a comprehensive service, available to
all, (b) the access to NHS
services is based on clinical need, not an individual’s ability
to pay, (c) the NHS aspires to
the highest standards of excellence and
professionalism, (d) NHS
services must reflect the needs and preferences of patients, their
families and their carers, (e)
the NHS works across organisational boundaries and in partnership with
other organisations in the interest of patients, local communities and
the wider population. (f) the
NHS is committed to providing best value for taxpayers’ money
and the most effective, fair and sustainable use of finite
resources, (g) The NHS is
accountable to the public, communities and patients that it
serves.’.
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