[back to previous text]

Mr. Mike O'Brien: I want to be clear on the hon. Gentleman’s position. Is he saying the constitution should be fully justiciable or not?
Mr. O'Brien: My first question is whether doing what is proposed makes this a justiciable document, and if fact and precedence give rise to that. This point is relative to another amendment in a later group, but what we have said in relation to the type of constitution that we wish to put in place is that such matters are covered by legislation. I suspect that the Minister will seek to pray in aid that point in any defence that he wants to make against justiciability, but the question will arise that by virtue of the way in which this is being done, will it give rise to injunctive relief, particularly if it is done through delegated powers? That is a question of law and fact rather than of desire.
I am not trying to pass an opinion on merit. I am trying to establish whether this gives rise to justiciability. It is therefore not an advocacy position but more a question of whether the law under discussion creates the type of opportunity at law which is intended or not. That is what I am trying to tease out.
Mr. Mike O'Brien: I understand that the hon. Gentleman is asking me what the Government’s position is on the extent to which the law may intervene in relation to these clauses. I am seeking to ascertain the Opposition’s view on whether other laws should intervene in relation to the constitution and whether it is a Conservative position that it should be justiciable.
Mr. O'Brien: We are in grave danger of getting into lawyers’ banter, which is the most polite way of putting it.
The Minister should be careful not to press me on the Opposition’s wishes. It is the Government who are proposing this law, not us. What they are doing is not that far away from what we would wish to do, which is to enshrine the core values and principles of the NHS into law. In that case, there would be a real sense that they have impact and, through the provisions in the Bill, some degree of fungibility as time moves on depending on circumstances changing as to whether there will be a proposal. We have some points on that to which we will return at a later stage.
I am very conscious of the precedent set by the former Minister, the right hon. Member for Leicester, East, in relation to the charter of fundamental rights, when, having described it as having no more force than The Beano, he eventually had to concede, after discussion with the former Attorney-General Lord Goldsmith, that, having started from that position, it had much more force than The Beano, because it was something on which those who were advocating cases in court could seek to assert gave rise to a presumption of a right, which has since been repeated by judges in judgments handed down from the European Court of Justice. It is by that means that it has been found to be justiciable—by biting on an English or Welsh citizen within that jurisdiction and, separately, in the Scottish courts and in the courts in Northern Ireland. That is my point and while it would be nice for us to have a lawyers’ indulgence about these matters, we need to be clear that this proposed law in this Bill may or may not give rise to justiciability at the points that I have just outlined. Having sought to take me well off my script, I hope that that has been of some help.
The Chairman: Order. I have been listening carefully. It is important to establish these principles early on, but I wonder whether, having expatiated so well on them in discussion on the first group of amendments, it will be necessary to expatiate so much on clause stand part.
Mr. O'Brien: Not only is that extremely welcome advice, but I had no intention of getting into this matter in the debate on clause stand part. I want to tease it all out at the outset, otherwise we will simply suspend an argument that needs to be had. I hope that the Minister will guarantee that the constitution is not necessarily justiciable. If he insists on pressing me on the question on which he has intervened twice, my instinct is that we should not be designing something that is justiciable. That is where I would seek to err, in constance, I suspect, with the Minister, who might be looking not to make it justiciable. The question is, is it, rather than do we want it to be. Even if there is the remotest chance that it is justiciable—as there must be, in my view—I think it incumbent on the Government to bring the substance of the constitution before the House.
Let me conclude on this group of amendments by mentioning that the regulatory impact assessment states that many of the principles
“are not explicit or secured”.
That is on page four of the RIA. Will the Minister explain what “secured” means in this context, and if not, will he write to me on that point? This first iteration of the constitution has not been debated or passed by both Houses of Parliament, which shows, despite all their rhetoric, what I would argue is a complete sidelining of Parliament by the Prime Minister and his Government. It is reflected in the legislation, which, as drafted, over-specifies and is inconsistent. Not to have this first iteration receive any Parliamentary scrutiny before it was published as a done-and-dusted deal sets a dangerous precedent for the constitutional debate that the Prime Minister has now set running and risks opening a legal can of worms in the future.
I have asked the Minister to justify the specificity here, bearing in mind that he will reject specificity elsewhere, to provide the Committee with analogous examples of such legislation, to substantiate the Prime Minister’s rhetoric and retain power to Parliament, to justify how a closed signing ceremony in No. 10 can mean anything with regard to the legislation that we have before us and to justify the dangerous precedent set for national constitutional debates and as regards possible future justiciability. I have also at least asked Government Back Benchers whether they are content to abandon the principle that public funds for healthcare will be devoted solely to NHS patients. That is a very serious challenge, given that we are very clear that that should be included and have made that point repeatedly, including before the Government published their proposals. I look forward to the Minister’s response.
Sandra Gidley (Romsey) (LD): I add my welcome to you to the Chair, Mr. O’Hara. I do not want to prolong the debate too much further. I support the point that there may not need to be date specificity in the Bill. I want to put forward a slightly different argument, because I sometimes worry when both Houses of Parliament always have to approve everything. The hon. Member for Eddisbury has probably not paid sufficient regard to the fact that a great deal of work went into involving the public and various patient groups in forming the constitution. It is a credit to some of the organisations involved in that work that nobody is now beating a path to our doors to highlight problems with it. Sometimes, it behoves us as parliamentarians to relax a little. Do we have to be such control freaks about everything that we cannot allow NHS staff, and the people who use the NHS, to make these decisions?
My concern is that the hon. Gentleman’s amendment provides greater potential for the constitution to become a political football in future. One accusation frequently levelled at the Government in recent years is that they do not let anything bed down. We see an initiative; everything is in place for a couple of years; everybody starts to get used to working under it; then everything changes. If you want a quick round of applause or a quick win at any NHS gathering, just suggest no change. Say, “Let’s have a period of stability,” and although one might not get a standing ovation, one can almost guarantee a round of applause. Why, then, can we not relax a bit and let the constitution have a period for the public to get used to it, and for staff to get used to working under its principles and for them to control this?
To make a party political point, I am not quite sure how the hon. Gentleman’s argument fits in with his party’s stated aim of removing the Department of Health and politicians from controlling what happens in the health service. It seems completely counter to that train of thought. The Minister probably does not need to respond to the point, but I felt that there was an alternative way to look at this set of amendments.
It is right, as the Conservative spokesman, the hon. Member for Eddisbury, has said, that we do not want to see a document that causes large-scale, new legal action. We already have enough litigation going on in relation to the NHS not to want to contribute significantly to that, so the extent to which this is justiciable is important. Perhaps I might deal with that first. We needed to take a balanced view on whether we want a document that is merely declaratory in a general sense or a proper constitution which is fully justiciable and legally enforceable that people can use in court action.
11 am
A balance needed to be struck between the extremes of something which was virtually irrelevant and something which was so relevant it could probably take over the running of the health service itself and cause the courts to be massively involved. We need to avoid both extremes. We have sought therefore to strike a balance with a document which declares what the law is, and which sets out broadly the principles and objectives of the NHS but does not create a series of new causes of action.
The hon. Member for Eddisbury asks if it is justiciable. It can be referred to in relation to court cases. It can be prayed in aid, but it does not of itself create any new cause of action. Therefore it should not produce a whole series of new areas of law or causes of action which will produce a lawyers’ charter. We wanted to avoid, and we believe we have succeeded in avoiding, the creation of a lawyers’ charter. As both the hon. Gentleman and I are lawyers, I am sure he will be delighted by that outcome.
Mr. Stephen O'Brien: I have not practised for 20 years.
Mr. O'Brien: I have not practised for about 15 years, so we are probably both pleased that we have not created an opportunity for lawyers to run rampant in the health service. We have, however, created a declaration of where the law is so that people can see what rights they have, what the objectives of the NHS are and also ensure that they have things that can be referred to in courts cases but which do not produce new court cases. In relation to the hon. Gentleman’s view about injunctive relief and some of the equitable remedies and judicial review, it is the case that the document can be referred to. I am not sure it will add a great deal to any case, but it could be brought into a case as a result of an action and referred to by the courts. The courts may therefore give effect to some of its provisions by way of injunction, but only if there is a cause of action already in existence today.
If something is absent from the current law, as a core principle framed in the constitution, it prompts a question about the use of NHS money for NHS patients. I suspect that the Minister may be coming on to that, but it may be one of the tests as to whether this is truly declaratory or whether it will define the range of issues which are currently covered by the law and can be justiciable.
Mr. O'Brien: To finish the point in relation to the justiciability of the constitution, I would not necessarily use the word “consolidation”. The constitution declares what already exists, rather than consolidates it. It does not bring legislation from other Acts into this measure, which is what is normally referred to as consolidation. They remain in the other Acts. This measure refers to other pieces of legislation and declares in a document, which it will be possible to refer to, what those pieces of legislation amount to and what their effect is. It does not create a new cause of action.
On public funds, our view is that they will be used only for the benefit of NHS patients. It is certainly not our wish that they should be otherwise used. However, there is a legal point. In relation to some NHS facilities there is a charge. A contribution must be made by the patient. Prescriptions are the obvious example. In those cases, we need to avoid the view that NHS money can exclusively be used for a particular purpose, because it may be a purpose for which there is a charge. In the case of a prescription, for example, there is a contribution from the patient and there is a contribution from the NHS. That is not exclusive, so our view is that NHS money should be for the use of NHS patients. That is the approach that we are taking. As for the legal point made by the hon. Gentleman, he would be wrong to say that a level of exclusivity should be brought into the legislation, as that is likely to raise questions about whether there can be joint funding by the patient and the NHS for a particular item, such as a drug on prescription. We will come back to that later in our discussion.
Mr. Stephen O'Brien: As the Minister said, we will probably return to that in future. He raised a question about prescriptions, and I accept that in that case there is a charge, which is why there is a caveat in the process. How does that relate to the recent decision by the previous Secretary of State concerning the inquiry and the Government’s policy on top-up payments?
Mr. O'Brien: We are venturing into a discussion that we shall be having later today. As far as the Government are concerned, NHS money will be applied to NHS patients. There will be circumstances, such as with prescriptions, in which some funding is contributed by the patient, so we need to ensure that the law enables that to happen and does not create an artificial barrier. The core principle of the NHS—that it is funded by the taxpayer to ensure that the provision of healthcare is available when it is needed, sometimes with a charge, but more often without—must remain intact. We have not announced anything that would undermine that principle.
Turning to other points that have been made, the hon. Gentleman made a broad political point about the Prime Minister and Parliament. We could all wax eloquent on that, but perhaps, Mr. O’Hara, you would restrain a general debate at this stage. I will avoid that eventuality, except to say that the Government have brought the NHS constitution before Parliament and we are now debating it; Parliament, therefore, has the opportunity to discuss these issues. As for the question of the date, we have received legal advice that the constitution needs to be clearly defined, which is why we have referred to the date on which it was published—21 January 2009. The hon. Member for Eddisbury wants to remove that reference, but if the original constitution was not identified with sufficient clarity, confusion could arise as to which document was being referred to and being revised.
We have referred to the date primarily for reasons of clarity, to pin down the exact document. The issue is how we ensure that there is clarity about the document. There are a number of ways in which that could be done, but our draftsman chose to take this approach. It could have been published as a Command Paper and referred to as such— there are a number of ways in which these things have been done in the past. The document was published before the Bill, so we took the view that it would be better to refer to it simply with a particular date. It could then be amended appropriately. A date is also given in the Bill that is relevant to other aspects of provisions dealing with the constitution. Any revision of the document must take place under clauses 3 and 4, which require a particular date for the three-yearly and ten-yearly reviews that need to take place.
Mike Penning (Hemel Hempstead) (Con): Can I take the Minister back to the other methodologies that could be used to introduce such a document? By bringing this document out and launching it in that way, there was a presumption that the House would agree to it entirely. Otherwise, he would have introduced a White Paper, which we could have amended in the usual way. What is so difficult to understand is that if Parliament is, quite rightly, debating it today, why was it brought out in its finished form? I know the Minister said that it could be amended, but the document, which was published as part of the constitution, would have to be completely pulped, whereas if it had been introduced through another method, perhaps as a White Paper, that would be the correct way for Parliament to scrutinise it. We could then have introduced the actual legislation, rather than publishing something which is highly likely to be defunct after this exercise in Committee.
Previous Contents Continue
House of Commons 
home page Parliament home page House of 
Lords home page search page enquiries ordering index

©Parliamentary copyright 2009
Prepared 17 June 2009