Health Bill [HL]

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.