Health Bill [HL]

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. In Grand Committee the Minister cited two main reasons for not incorporating the constitution or any part of it in the Bill. He said that he did not want to set anything in stone and, equally, he did not want to create a lawyers’ charter. I understand both those objections and, indeed, a number of noble Lords whose voices I always listen to weighed in on the Minister’s side. I have therefore given renewed thought to the problem. By this amendment I suggest that there could be another way of achieving the objectives I have talked about; that is, by giving the Secretary of State a power to make regulations in which the core principles underpinning the constitution could be set out. That statutory instrument would be the direct link between Parliament and the constitution and would quite literally legitimise the content of the document. It would be up to the Government to specify what the principles would be, but if they happened to be closely related to the principles set out in the constitution itself, I am sure that we would all be satisfied with that. That, I think, deals with the Minister’s first objection, because, with a statutory instrument, nothing would be set in stone. If the Government wished in some way to amend the principles at the 10-year review point, they could do so without bringing forward primary legislation. The Minister may well say that I have not dealt with his second objection; namely, that by giving any element of the constitution the force of law, we run the risk of creating a lawyers’ charter. I suggest to him that this is not a worry that he needs to entertain, provided that, in the statutory instrument, we restrict ourselves to principles as opposed to rights. The difference between rights and principles in this context is an important one. There can perhaps be no better example in law of the significance of that distinction than the European Charter of Fundamental Rights. The noble and learned Lord, Lord Goldsmith, published a paper in February 2001 in which he very helpfully drew a distinction between individually justiciable classic rights, by which he meant the civil and political rights guaranteed under the European convention, and what he termed the social and economic rights covered by the charter, which are not really rights at all, but rather general principles which both the Union and European member states may not infringe when framing new legislation of any kind. The principles do not themselves give rise to rights, nor do they oblige member states to legislate in a particular way. They act as a means to ensure that any new legislation cannot be enacted in terms which violate the principles. I emphasise the opinion of the noble and learned Lord, Lord Goldsmith, that no new rights are imposed on member states or their citizens by reason of the principles being included in the European charter. We perhaps need to remind ourselves that the UK is signed up to the charter. The parallel with the issue we are now debating is, I think, a direct one and extremely illuminating. These are the reasons why I believe this amendment, or one like it, poses no dangers at all, but rather gives us the best of all worlds—flexibility for the Government and a means by which the citizens of this country can be assured of Parliament’s approval of what the NHS Constitution contains. I believe that that assurance is of fundamental importance and therefore I beg to move.