Report stage in the Lords
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Earl HoweConservative- Quote
- My Lords, it falls to me to open today’s proceedings. With this amendment I shall couple Amendment 16 in this group. I take us to an issue which we did not debate in Grand Committee; the role and standing of the Statement of NHS Accountability for England in relation to the NHS Constitution. This statement was published alongside the NHS Constitution and the Handbook to the NHS Constitution on 21 January this year. In these amendments I am asking: is the statement an integral part of the NHS Constitution? If it is, why is there no mention of it in the Bill? If you access the very helpful section on the Department of Health website which contains the NHS Constitution and you turn to the interactive version, you read the following words: “This interactive version of the NHS Constitution is designed to help you navigate through all of the supporting information that you may need when reading the NHS Constitution. It consists of the following documents”. Below that there is listed the NHS Constitution, the Handbook to the NHS Constitution, and the Statement of NHS Accountability. It is important to note that the constitution is described as “consisting of” these documents. In other words, the constitution consists of more than the 12-page document carrying that title, and you do not have the constitution in your hand unless you are holding the three documents—four, if you include the Glossary of Terms. This is right and proper. At the beginning of the 12-page document is the section headed: “Principles that guide the NHS”. The seventh of these principles is concerned with accountability and commits the Government to making sure, “that there is always a clear and up-to-date statement of NHS accountability”, to enable people to be clear about the system of responsibility and accountability for taking decisions in the NHS. This system is as important for NHS staff to understand as for anyone else. For one thing, if staff are legally obliged to have regard to the constitution, they surely cannot do that in the fullest sense without understanding and having regard to the statement of accountability. That is the function of the statement of accountability, which also provides a very useful summary of the current structure of the NHS and what the bodies within it are tasked with doing. Just as there are cross-references between the 12-page constitution and the handbook, and just as it is not possible to understand one document without the other, there are also cross-references between the constitution and the statement of accountability. How might the statement be useful to a patient? If you were someone who was unhappy about some aspect of NHS services and were seeking to understand how best to impress upon the service that it needed to focus more attention on a particular matter, the statement of accountability would enable you to navigate your way around the NHS and its institutions. It is more than arguable that you would not be able to do that properly by reading only the handbook. Why is it then that the Statement of NHS Accountability receives no mention in the Bill? If it is to be regarded as part of the NHS Constitution, as the department’s website strongly implies that it is, we should be able to see mention made of it here, on a par with the handbook. Indeed, what is the difference between the status of the handbook and that of the statement of accountability? I beg to move.
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Lord Walton of DetchantCrossbench- Quote
- My Lords, the British Medical Association has said that it has been a vocal supporter of the concept of an NHS constitution. It is the BMA’s belief that a clearly articulated set of values that reflect a shared consensus concerning the nature and purpose of the NHS will strengthen the public’s trust in it. The BMA considers that a constitution, properly constructed, offers the means to maintain the public’s confidence in the NHS and to safeguard its future. However, the BMA has concerns with regard to the constitution’s commitment to developing a responsive and accountable health service. Past experience and some evidence suggests that there exist significant failings in enabling patients, public and staff to engage in and influence meaningfully NHS decision-making processes. Recent examples of service redesign, involving poor levels of transparency and a lack of effective consultation reinforce this view. The BMA continues to be a strong advocate of patient and public involvement as an integral and collaborative process that is essential to grow productive partnerships between patients, the public, health professionals and policy makers. Consequently, the BMA does not believe that the NHS contribution goes far enough in determining a framework that will better enable and safeguard local accountability for widening and strengthening the relationship between the health services at a local level and the populations they serve. I support this amendment.
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The Parliamentary Under-Secretary of State, Department of Health (Lord Darzi of Denham)Non-affiliated- Quote
- My Lords, Amendments 1 and 16 tabled by the noble Earl, Lord Howe, would place a duty on the Secretary of State to publish a statement of accountability, to review it every three years and to ensure that it continues to be available to patients, staff and members of the public. I agree with the sentiment behind these amendments. The system of responsibility in the NHS should always be made clear and accessible to the public, the patients and the staff. As I explained in Grand Committee, it is critical that the public know how the NHS is accountable at a local level and how they can get involved. During the formal consultation on the draft constitution, patients, the public and NHS staff told us that it would be helpful to produce a document that explains accountability and the roles and responsibilities in the NHS. The Statement of NHS Accountability, which was published alongside the constitution on 21 January, was a response to what we heard. It is a public-facing document that explains the roles, responsibilities and accountability in the NHS. However, I do not believe it is necessary to place in the Bill the requirement to review and update the statement of accountability. This is because the Government have already committed to doing this through the NHS Constitution. Principle 7 in the constitution explains that, “the NHS is accountable to the public, communities and patients that it serves”. It says: “The system of responsibility and accountability for taking decisions in the NHS should be transparent and clear to the public, patients and staff”. It goes on to commit that, “the Government will ensure that there is always a clear and up-to-date statement of NHS accountability for this purpose”. Therefore, we have already committed to ensuring that the statement of accountability is always clear and up to date. Imposing a timeline on how often the statement must be updated risks being too prescriptive—at least once every three years may be too long to wait, or, conversely, the roles, responsibilities and accountability in the NHS may not change in one three-year period. By keeping the time flexible, we will ensure that it is constantly up to date and continues to be useful to the public, the patients and the staff. I turn to the point that the noble Earl raised in relation to the interactive form of the Statement of NHS Accountability and the supporting document. I will certainly look at the interactive version that the noble Earl referred to, but I think that the intention was to say that the interactive guide, and not the constitution, contains a statement of accountability. I hope that I have demonstrated that there is no need for extra legislation on the face of the Bill. The Government have already committed to publishing a clear statement on NHS accountability that is always up to date. I turn to the point raised by the noble Lord, Lord Walton, in relation to the transparency of it. I made it quite clear, through the process of the NHS next-stage review in May last year, that any service redesign or reconfiguration has to be evidence-based, clinically led and needs to involve the local population and the public through the whole period of the consultation. Change has to be locally owned. I hope that the service redesign concept that the noble Lord referred to is already covered within the statement of accountability. I hope, therefore, that the noble Earl is able to withdraw his amendments.
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Lord Mackay of ClashfernConservative- Quote
- My Lords, before the noble Lord sits down, I wonder why the statement of accountability is not included as part of the constitution. It seems to be extremely important, and indeed the constitution reflects the importance of accountability. If you were stating the manner in which you should be accountable and the detail in the statement, I should have thought that it would be at least a candidate for being part of the constitution.
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- Lord Darzi of DenhamNon-affiliated
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- My Lords, I am grateful to the noble and learned Lord, and I shall try to clarify the matter. Principle 7 in the constitution refers to accountability within the NHS, which is part of the constitution. At the time, we did not think of a separate public-facing document, and the Statement of NHS Accountability was the result of the consultation that we carried out with the public and the staff. That is why we published it alongside the constitution on 21 January this year. Although there is a reference to accountability in principle 7, the consultation made a strong case for publishing a statement of accountability alongside it. If that is still an issue, I shall be more than happy to look into it further.
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- Earl HoweConservative
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- My Lords, I am very grateful for the support of the noble Lord, Lord Walton, and for the excellent points that he made. I am equally grateful to my noble and learned friend, who posed the key question very well. Reading the Department of Health website, I think that you would certainly be forgiven for thinking that the NHS Constitution was, in essence, a three-legged stool, consisting of the 12-page document, the handbook and the statement of accountability. I, for one, was very comfortable with that. Notwithstanding that, the Minister implied that the statement of accountability is not in fact part of the constitution. The question that that raises is: do NHS staff or the boards of NHS trusts have to have regard to the statement of accountability? It would appear that they do not, and I wonder what kind of message that sends out to them.
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- Lord Darzi of DenhamNon-affiliated
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- My Lords, I am sorry to intervene but perhaps I may again read what principle 7 in the constitution says: “The system of responsibility and accountability for taking decisions in the NHS should be transparent and clear to the public, patients and staff”. That statement is in the constitution.
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- Earl HoweConservative
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- My Lords, that statement is certainly in the constitution but the content of the statement of accountability is not in the 12-page document. It is only when you read it that you understand what the accountability structure in the health service consists of. The Minister suggested that, because that statement was in the constitution under principle 7, it was not necessary to include it in the Bill. I am a little puzzled by that because the constitution refers to the handbook. It says: “It”— that is, the constitution— “will be accompanied by the Handbook to the NHS Constitution, to be renewed at least every three years, setting out current guidance on the rights, pledges, duties and responsibilities established by the Constitution”. One could equally well argue that perhaps the wording of the handbook should not appear in the Bill because the pledge is already set out in the constitution. Therefore, we are on difficult ground here. I remain puzzled but this is not an issue that I intend to press. If the Minister can enlighten me further after these proceedings, naturally I shall be grateful. However, for now, I beg leave to withdraw the amendment.
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- Earl HoweConservative
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- My Lords, in moving this amendment, I bring us back to an issue that gave rise to a gratifying amount of debate in Grand Committee—that is, the question of whether Parliament should have some sort of say in the content of the NHS Constitution and, if so, to what extent. I do not need to remind noble Lords that we have a very curious situation at the moment. The NHS Constitution was signed off by the Prime Minister in person early in the new year amid publicity and expressions of mutual congratulation of a kind that one associates with an event of some importance. Important as the event was seen to be, the publication and adoption of the NHS Constitution have nevertheless been entirely divorced from any parliamentary process. I am one of those individuals who think that that is just wrong. The constitution is a document that is intended to underpin the values and the modus operandi of the entire NHS for the next 10 years, at least, and as such it has been promoted by the Government as a text of fundamental significance for both staff and patients. It is not just that Parliament has been given no say at all on the content of the constitution, which I find regrettable, it is also that without the stamp of parliamentary approval on what the document actually says, the substance of it completely lacks any sort of legal standing.
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- Lord Darzi of DenhamNon-affiliated
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- My Lords, Amendment 2 would mean that the Secretary of State would need to make regulations to address changes to the principles set out in the NHS constitution. I understand that the noble Earl wishes to give a greater role to Parliament in determining the principles of the NHS. However, as I said in Committee, as acknowledged by the noble Earl, I do not believe that this amendment is necessary and will say why it carries a risk. The principles of the constitution were not dreamt up by the Government. They articulate the foundation on which the NHS has been built over many decades, and many of them have roots in primary legislation. Importantly, they were the result of full public consultation. Any changes to them would also require full consultation. If the noble Earl’s intention is to ensure that the Government of the day cannot tinker with the principles of the NHS behind closed doors, I can assure him that they could not. The Government would not be able to alter the founding principles of the NHS just by changing the wording of the principles in the NHS constitution, even if they did so following full consultation. That is because Parliament creates the underpinning legislative framework from which many of these principles are derived. For example, the second principle about access to services being based on clinical need, not ability to pay, is derived from Section 1(3) of the National Health Service Act 2006. If the Government of the day wished to change that principle—I can assure noble Lords that this Government would not—they would need to amend primary legislation with the consent of Parliament. Revising the NHS constitution would not be sufficient. Similarly, Section 72 of the NHS Act 2006 would have to be amended in order to change the constitution’s fifth principle that the NHS works across organisational boundaries. As the noble Earl mentioned, I was concerned in Committee that we should not make a lawyer’s charter out of the constitution. Placing part of the constitution in legislation, whether secondary or primary—the principal part—brings with it an increased risk of litigation. I am sure that we all agree that we would not wish to see decision-making in the NHS become the preserve of the courts. If the principles of the constitution were to be addressed in regulations, it would also create potential ambiguity with the rights, pledges and values set out in the constitution. I am very grateful to the noble Earl for addressing the issues about the rights and the examples in relation to the European charter. Those sorts of ambiguities have the potential to create litigation, which I am sure we would want to avoid. It would be unusual and cumbersome to single out one part of the constitution to be treated differently from the rest when reviewing it. The constitution is a coherent whole and we have proposed a system for reviewing it involving full consultation. I think this is the right process for updating the constitution. Given my reassurances and the long debate we had in Committee, I still do not believe that we should separate the principles. I hope that I have reassured the noble Earl that any changes to the principles, which are historically underpinned by legislation, will obviously be debated in Parliament. I hope that the noble Earl will feel able to withdraw his amendment.
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- Earl HoweConservative
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- My Lords, I am grateful to the Minister for his reply. He gave only a brief nod to the problem which I had been trying to identify in my remarks, which is, as I see it, that the model which the Government have chosen to adopt is that the content of the constitution—the principles, the values, the rights and the responsibilities—is totally detached from Parliament. I believe that that is simply wrong in principle. I realise that Ministers are well intentioned and extremely unlikely to change the principles set out in the constitution. However, for the reasons I outlined, the amendment offers a way of finessing the objections raised to the more explicit amendment which I tabled in Grand Committee. In my view, it bridges the gap which the noble Baroness, Lady Barker, referred to on that occasion. The Minister said that in his opinion the amendment would carry the risk of encouraging litigation against the NHS. However, if the noble and learned Lord, Lord Goldsmith, was right in his analysis of the European Charter of Fundamental Rights in drawing a material distinction between justiciable rights and non-justiciable principles, it surely follows that the risk of litigation with a formula of this kind has to be more apparent than real. Nothing the Minister has said in his reply has persuaded me that the parallel I have drawn is incorrect The issue I am raising is one of principle. It casts no aspersions whatever on Ministers but it is important, and I would like to test the opinion of the House.
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