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.
The issue is
not whether I want the constitution to be justiciable, because the
question is whether rights to healthcare, for example, are capable of
being enforced
or made available as a matter of other legislation. The point is to find
out what the constitution is establishing. I am concerned that the way
it has been drafted and incorporated makes it justiciable from the
point of view of injunctive relief—a remedy in equity under
law—or whether it gives rise to enforcement action in terms of
rights and entitlement on the part of patients. The honest truth is
that I do not know the answer. 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.
Mr.
Mike O'Brien: The hon. Member for Romsey is right. The NHS
constitution is the result of widespread consultation with various
stakeholders in the health service. Those stakeholders include not only
employees,
doctors, nurses and patients’ groups, but a whole range of
organisations, which have come together to set out their view on what
should be in the NHS constitution. As a result, the document has been
brought forward. It is primarily declaratory, in that it sets out the
broad principles of the NHS. In terms of its legality, it produces no
new areas of legal intervention or causes of action that do not already
exist. In other words, it declares the current law broadly as it
exists, but brings it together in one document, the NHS constitution,
which sets out precisely what all the various areas of law have already
done.
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.
Mr.
Stephen O'Brien: I understand both the
Minister’s intent and what he believes has been achieved. If I
understood him correctly, he said in effect this is a
consolidation-type approach. This consolidates existing law; it does not
create any new causes of action. Whether or not as a result, it becomes
the source of that law or whether the previous legal provisions will
continue to be cited in any legal action is not completely clear.
Providing no new law has been created, that may be, to use a
lawyer’s phrase, otiose.
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.
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