Health Bill [HL]

My Lords, Amendment 2 would mean that the Secretary of State would need to make regulations to address changes to the principles set out in the NHS constitution. I understand that the noble Earl wishes to give a greater role to Parliament in determining the principles of the NHS. However, as I said in Committee, as acknowledged by the noble Earl, I do not believe that this amendment is necessary and will say why it carries a risk. The principles of the constitution were not dreamt up by the Government. They articulate the foundation on which the NHS has been built over many decades, and many of them have roots in primary legislation. Importantly, they were the result of full public consultation. Any changes to them would also require full consultation. If the noble Earl’s intention is to ensure that the Government of the day cannot tinker with the principles of the NHS behind closed doors, I can assure him that they could not. The Government would not be able to alter the founding principles of the NHS just by changing the wording of the principles in the NHS constitution, even if they did so following full consultation. That is because Parliament creates the underpinning legislative framework from which many of these principles are derived. For example, the second principle about access to services being based on clinical need, not ability to pay, is derived from Section 1(3) of the National Health Service Act 2006. If the Government of the day wished to change that principle—I can assure noble Lords that this Government would not—they would need to amend primary legislation with the consent of Parliament. Revising the NHS constitution would not be sufficient. Similarly, Section 72 of the NHS Act 2006 would have to be amended in order to change the constitution’s fifth principle that the NHS works across organisational boundaries. As the noble Earl mentioned, I was concerned in Committee that we should not make a lawyer’s charter out of the constitution. Placing part of the constitution in legislation, whether secondary or primary—the principal part—brings with it an increased risk of litigation. I am sure that we all agree that we would not wish to see decision-making in the NHS become the preserve of the courts. If the principles of the constitution were to be addressed in regulations, it would also create potential ambiguity with the rights, pledges and values set out in the constitution. I am very grateful to the noble Earl for addressing the issues about the rights and the examples in relation to the European charter. Those sorts of ambiguities have the potential to create litigation, which I am sure we would want to avoid. It would be unusual and cumbersome to single out one part of the constitution to be treated differently from the rest when reviewing it. The constitution is a coherent whole and we have proposed a system for reviewing it involving full consultation. I think this is the right process for updating the constitution. Given my reassurances and the long debate we had in Committee, I still do not believe that we should separate the principles. I hope that I have reassured the noble Earl that any changes to the principles, which are historically underpinned by legislation, will obviously be debated in Parliament. I hope that the noble Earl will feel able to withdraw his amendment.