Health Bill [HL]

My Lords, with great respect to my noble friend, this amendment does put a pretty heavy responsibility on the Secretary of State. Guidance as to what is meant by "have regard to" would either be extremely brief, or possibly, if it were extensive, a bit confusing, to say the least of it. I do not underestimate the skill in drafting available to the Minister, but I have seen some attempts at this kind of work and they are not always crowned with success. The phrase "have regard to" is, as the Minister said in Grand Committee, a very common phrase. Indeed, my noble friend referred to it being in other statutes. It is a very common phrase in the law and I have been involved in arguing cases and sometimes deciding cases in which it was a crucial phrase. I will not be giving a definitive meaning for it, but I think what, in principle, it means, is that, in making a decision, you take account fully of all the provisions of the document so far as relevant to the issue in hand and you take account of them properly and seriously, not in a dismissive way. On the example about duties, if a document confers a duty or a right—perhaps I should take a right, to simplify matters—if a document confers a right, I would suggest that, if you have proper regard to that document, you give effect to the right, unless there are some over-riding other considerations from other parts of the document which, in effect, reduce or modify the first expression of the right. On the other hand, if it is a value, you conduct yourself in accordance with that value and that is what "have regard to" means. It is a compendious phrase with very considerable legal lineage in which it is applied. I do not think there are many cases in which the judges have attempted to say what it means; they know how to apply it. I have tried to summarise what I believe is the way it would apply in this sort of situation. If the Minister is prepared to accept that the Secretary of State will give guidance, I wish him joy in that task.