Select Committee on Constitution Eighth Report


1.  A bill has been introduced into this House to amend the law about the National Health service; to make provision about quality and standards in the provision of health and social care, including provision establishing the Commission for Healthcare Audit and Inspection and the Commission for Social Care Inspection; to amend the law about the recovery of NHS costs from persons making compensation payments; to provide for the replacement of the Welfare Food Schemes; to make provision about appointments to health and social care bodies; and for connected purposes. The Health and Social Care (Community Health and Standards) Bill was brought from the House of Commons on 9th July (HL Bill 94).

2.  The National Health Service, by reason of its existence and its functions in meeting the health care needs of the public, is a significant, if specialised, part of the constitution. Ever since the creation of the NHS over 50 years ago, the service has had an 'ad hoc' structure with various bodies at regional and local levels that have ultimately been accountable to Parliament through the Secretary of State for Health. Provision of the health service has always been regarded as unsuitable for the ordinary structure of a government department, although the Department of Health has retained responsibility for the structure, performance and financing of the NHS. Many different organisational schemes have been attempted for the NHS, but a recurrent feature has been the use of appointment by ministers to form the various managerial bodies that have existed. There has been some interface and overlapping between the NHS and local government (for example, as regards care of the elderly and other aspects of social services), but local authorities since 1947 have had no direct involvement in most forms of health provision.

3.  The bill seeks to inject a new element of local democratic involvement in the government of the NHS in England. In providing for NHS foundation trusts, the bill creates a new legal form, a 'public benefit corporation', which must be constituted, on the authority of a new officer, the Independent Regulator of NHS Foundation Trusts, in accordance with the requirements in Schedule 1 to the bill. The members of this corporation are to be persons who fall into two classes: (a) the 'public constituency' - persons who live in the area specified in the constitution of the trust, and persons who have attended any of the corporation's hospitals as patients or as the carers of patients (Schedule 1, paras 3(1)and 3(3)); and (b) the 'staff constituency' - persons who are employed by the corporation under a contract of employment or who exercise certain functions for the corporation (Schedule 1, paras 3(1), 3(4), and 3(5)).

4.  The constitution must provide for a minimum number of members of each constituency, and a person may not become a member unless he or she has agreed to pay a sum not exceeding £1 to the corporation. The board of governors of a foundation trust are to consist mainly of persons elected by the public and staff constituencies from their own members every three years. More than half of the governors must be elected by the public constituency (Schedule 1, para 8(1)) and at least one must be elected by the staff constituency (Schedule 1, para 8(2)). A register of members must be kept showing the constituency to which each member belongs (Schedule 1, para 18).

5.  The House of Commons Health Committee, in its report on foundation trusts, noted that the proposals would potentially bring the benefit of "a new form of social ownership designed to involve patients and the public in setting the strategic direction of the trust" (2nd Report, Session 2002-03, HC 395, para 18). That Committee also found that "instead of accountability to Government, the trust will be accountable to a Government appointed but independent regulator, and to a locally elected Board of Governors" (para 19). The Committee observed that, subject to approval by the Independent Regulator, trusts would be able to determine their own membership and thus their own electorate. The Committee also drew attention to the need for foundation trusts to 'face the challenge of designing and administering large community and staff elections' (para 72).

6.  In the light of the above, we draw attention to two features of the proposals which we consider raise constitutional questions:

  • the new form of democratic involvement in the governance of health provision in certain areas of England;
  • the fact that arrangements for elections to NHS trusts are not specified in the bill, but are left to each trust to determine, subject to the approval of the regulator.

7.  The fact that each trust is to be left to determine its own constitution, subject to the general provisions in Schedule 1 to the bill, will lead to local variation in electoral boundaries, the composition of the electorate, and the process of elections. We further note that provision is not made for the oversight of such elections by the Electoral Commission.

  1. We draw these matters to the attention of the House as raising questions of principle about principle parts of the constitution.

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