Health Bill [HL]

Those noble Lords who took part in the Queen’s Speech on the health debate 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 views of my noble friend in that I think 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.