Health Bill [HL]

My Lords, Amendment 9 would commit the Secretary of State to publishing guidance on the meaning of the term "to have regard". I understand that the noble Earl is concerned that the NHS will be insufficiently supported in the interpreting of the duty to have regard to the constitution. I should therefore like to reassure noble Lords on this point. The department has already embarked on a programme of work to ensure that the NHS knows what will be expected of it when this duty comes into effect. The noble Baroness, Lady Barker, raised this issue and I hope I can reassure her over some of the activities within the department. First, the department has set up a state of readiness group, involving many important representatives, both from within the NHS—for example, SHA chief executives—and from outside—for example, UNISON. The purpose of the group is to understand how to help the NHS to be ready to embed the NHS Constitution and to establish ways of providing assurance that the constitution is taking effect. The group has had its first meeting and will continue to meet until the summer. Another example of the support which the department is providing is a toolkit which will be made available to the NHS imminently. Among other things, the toolkit contains a guide for staff: suggestions about how to incorporate the constitution into organisations’ annual reports, information for line managers and induction messages for new staff. These resources will enable the NHS to communicate the importance of the constitution to all staff and to explain what it means for them both as employees and for the way in which they provide care. I am also aware that the noble Earl is concerned that the duty to have regard will mean that the constitution will not have any bite. I therefore remind him that much of the constitution is not new to the NHS. It contains many existing legal rights and where there are new ones, guidance will be published specific to those new rights. I should like to clarify an issue about having regard to a right. A right in the constitution is a legal right; there is no such thing as a right in the constitution which is not underpinned by legislation. Similarly, the pledges reflect good practice and current departmental policy. Many are underpinned by existing performance mechanisms—in other words how we guarantee that these pledges are delivered. They are underpinned by existing performance mechanisms such as the operating framework. There is no possibility of them being ignored. That leaves us with the principles, the values and the responsibilities. As I said, many of the principles are derived from existing legislation and do not represent a new way of working for the NHS. I do not think it would be appropriate to give guidance on how to have regard to the NHS’s values or to patients’ responsibilities, for example. In my view, the best guide that the department can give the NHS on what is meant by "having regard to the constitution" is the advice that the chief executive of the NHS has already given in his letter to the chairs and chief executives. I sympathise with the noble Earl in relation to how we make this stronger. To produce formal guidance, as eloquently advised by the noble and learned Lord, Lord Mackay, on the meaning of "having regard to the constitution", the department would have to list every kind of action that an organisation would have to take to demonstrate that it has had regard. Even if I am surrounded by the best brains, I promise noble Lords that we will get this wrong. As I said in Committee, I do not believe that this is possible or appropriate and I will not repeat my comments here. I believe that the guidance is unnecessary from a legal point of view. As we have heard today, "to have regard" is established legal terminology. It has been used, as the noble Earl suggested, in previous health Acts—the Health and Social Care Act 2008, and the Health Act 2006. I sympathise with what the noble Earl is trying to achieve. The challenge in the NHS is how to get the constitution embedded in the mindset of all of us who work in the NHS and how to disseminate that information to those who use the NHS. That challenge will be met only with dialogue across the system. I hope that I have reassured the noble Earl enough for him to withdraw the amendment.