Health Bill [HL]

My Lords, I take the opportunity to support the noble Earl, Lord Howe, and to note, as one always should, the words of the noble and learned Lord, Lord Mackay of Clashfern. Far be it from Members of this House to deprive members of the legal profession of a source of income which has been extant for a very, very long time, arguments over the phrase "have regard to" have made many a legal career. I take the point of the noble and learned Lord, Lord Mackay of Clashfern, in full part; because I think it would be difficult for a Secretary of State to give a full meaning to that. None the less, this document, this constitution, is going to sit alongside a whole range of other documents of varying degrees of legal importance which medical staff have to bear in mind every day in the course of their duties. I think the noble Earl, Lord Howe, is right to try to establish exactly where it stands in rank of importance, as against other laws and as against statutory guidance as well. It is for the Department of Health to provide assistance to members of staff about how this document will work in practice and what practical difference it will make to their work. The Department of Health has been in this situation before. When the Mental Capacity Act was being argued in Parliament, a great deal of work went on, during the passage of the Bill and subsequently, to try to give examples to practitioners as to what the phrase "best interests" would mean. "Best interests" is, similarly, a legal phrase of some standing and contention, but nevertheless, in order to make what Parliament had passed become a reality for patients, the department did considerable work on that. We can argue about whether this constitution is going to be of the same import as the Mental Capacity Act and the guidance that went with it, but I think the noble Earl, Lord Howe, is to be commended for trying to find an answer to that question, because if he does not, we risk confusing staff when they come to make decisions in practice. The department has a duty to make sure that that does not happen.