Mr.
Stephen O'Brien: I beg to move amendment 10, in clause 2,
page 2, line 25, at end
insert— ‘(5A) Each person
who is sub-contracted by persons in sub-contracting arrangements under
section (5) must, in delivering that contract, have regard to the NHS
Constitution.’. This
is a probing amendment to investigate how far down the food chain the
NHS constitution bites. In the Bill, any private or third sector
organisation which contracts with the NHS must have regard to the
constitution. Likewise, any body which they subcontract
to “provide
or assist in
providing” must
also have such regard. The amendment would require that any body
subcontracted by a subcontractor would also have to have regard to the
constitution. Amendments could be tabled to deliver a body
subcontracted by a subcontractor’s subcontractor and so on, like
Russian dolls ad infinitum, ad
absurdum. I
hope that the Minister will take this opportunity to clarify how many
iterations of subcontraction the provision affects. I assume that the
main contractor takes an obligation to bind all those who are suppliers
in a contractual chain—that the intention is to bind everyone to
have regard to the constitution. I will leave him to have fun with the
legal niceties of that
one. Can
the Minister also clarify the wording
“provide or
assist in
providing”? What,
in terms of law, does it mean? Does it include a subcontractor named on
the contract? Does it apply to every contractual relationship the
contractor holds, whether it pertains to the NHS contract or not? I am
not talking about common sense but about the force of the statute. For
example, if a cleaning contractor fails to have
regard to the principles because their paper supplier fails to deliver,
can the NHS constitution be brought to bite on the paper
supplier? I
recognise from our earlier discussion that the clause is not intended
to lead to new courses of action, but, when the Minister described the
intended effect of the constitution on all those who supply services,
he said that it was intended to bite. Indeed, that was precisely the
word that the noble Lord Darzi used throughout his defence in the other
place of the drafting of the Bill. If we are not talking about direct
legal courses of action, we need to understand what is meant by
“bite”, and how far it goes down the
chain. Can
the Minister also provide some examples of joint contracting under
subsection (8)? The fact that that provision is in the Bill seems to
betoken that it has been thought through, because there must be a
particular concern, opportunity or even mischief in mind. Furthermore,
will the duty “to have regard” be inserted in all
contracts that the NHS has with its contractors? Will the NHS mandate
the insertion of the duty in all its contractors’ contracts? To
some degree, that is the same point as the first
one. One
issue that often comes up is that private sector providers to the NHS
feel they cannot compete with, for example, the public sector pension
fund, which makes the attraction and retention of staff difficult. I am
yet to be convinced of that argument. I believe that the flexibility of
the private sector usually allows it to suffer the differential on VAT
happily, because its efficiencies amply recompense it for such
difficulties. The question is whether the staff of private and third
sector providers would have grounds to claim against their employer,
using the constitutional right to the fair pay and contracts framework.
Furthermore, will contractees have to warn the contractor of this duty
before entering into a contract, or will they operate a tick-box
exercise on the paper trail afterwards to show that they were
“having regard to”, as we discussed earlier? We must also
consider the argument of justiciability, and whether it should be
inserted into contracts. What assessment has the Minister made of
whether that will become a justiciable area in contract law? If the
contractor fulfils his contract but fails to have regard to the
constitution, is that now, or might it become, a ground for termination
or some other form of contractual
remedy? The
next point was raised earlier by the hon. Member for Romsey and then
picked up by my hon. Friend the Member for Hemel Hempstead,
particularly when he spoke about air ambulances. We need to cast our
minds to clause 3(7), which raises the interesting question of the
position of volunteers within the contracting and subcontracting
organisations—and, indeed, within the NHS itself. I do not want
to teach the Minister grammar or how to suck eggs, but he will be aware
that there is no contractual basis for enforcement between two parties
intending to create a legal relationship, if there is a failure of
consideration for money or money’s worth.
With
volunteers, there is by definition an absence of money or
money’s worth. One could argue that some sort of time element
might be of value, but the fact is that the time is given voluntarily
and without the expectation of reward or compensation, which means that
there is an absence of consideration. There is the question of whether
it might be misleading to encompass volunteers within the term
“staff”, which is how the Bill is currently
drafted. If so, there can be no ability to enforce—or, if that is
too strong a word, to lay up the expectation that they should have had
regard to the constitution. The last thing that we want to do is to
create perverse incentives on volunteering, and I dare say that the
Minister entirely shares that sentiment. I am sure that in all our
constituencies we can find great examples of volunteers helping
hospitals and other NHS
facilities. The
amendment brings to light a further possible illogicality. It seems
that foundation trusts are bound to have regard to the constitution
only in respect of their NHS patients and not their private patients.
To a degree, we have already discussed that matter. However,
many people receive dental services under contractual arrangements made
through general dental service contracts. Although the dentist
will be a contractor under subsection (4), or possibly
subsection (5), and thus be covered by the duty, patients increasingly
pay for their services through Denplan. A private patient in hospital
is not covered by the constitution, whereas a private patient in a
dentist’s surgery is.
I make no
argument for both or either, but the legislation should be consistent.
Given the multiplicity of ways in which all of us, as citizens of the
devolved countries of the United Kingdom, can gain access to primary
care and other health services, we should have thought the matter
through in a careful and detailed way with specific examples. I hope
that the Minister understands the thinking that lies behind the
amendment and that he will take the opportunity to assure us that these
things have been thought through and are going to
work.
Mr.
Mike O'Brien: Amendment 10 proposes that those persons
providing NHS care that are subcontracted by a subcontractor must have
regard to the constitution. I applaud the thoroughness of the hon.
Member for Eddisbury in trying to ensure that we do not neglect the
subcontractors of subcontractors, who are important people. However,
the amendment is unnecessary, as subcontractors are already covered by
subsection (5)(b), which states that each person
who “provides
or assists in providing NHS services under sub-contracting
arrangements” must
have regard to the constitution. That includes those who are
assisting. 4.45
pm Mr.
Andy Slaughter (Ealing, Acton and Shepherd's Bush) (Lab):
On subcontractors, I wonder whether my right hon. and learned Friend
can help me on the issue of telephone services. I know that the issue
is fresh in his mind, because during the short adjournment he was
engaged with one of my constituents, Mr. David Hickson, who
is involved in an assiduous campaign against the use of 084 numbers. I
will ask my question in two parts. First, is there any conflict between
what the constitution states in relation to services being provided
free of charge and the profit that is made either by NHS institutions
or by the private providers of telephone numbers? Secondly, given that
the widespread consultation, which may of course resolve the issue
depending on the Department’s response, concluded on 31 March
2009, when does he expect the response to it? It highlights
considerable disquiet about the use of 084 numbers in relation to NHS
services.
Mr.
O'Brien: My hon. Friend tempts me down the line of
discussing 0845 numbers, 084 numbers and a number of other numbers. We
could debate the issues at some length, but he is right to say that a
consultation has been completed. We will shortly announce the outcome,
but I do not have the date for that announcement. I hope to look at the
issue in some detail in the near future, and I hope that we will then
be able to announce how we intend to pursue
it. It
is important to recognise that there are a number of areas in the NHS
where organisations have the ability to not only provide services, but
to jointly fund them through patients’ contributions; I gave the
obvious example of prescription charges earlier. That is allowed within
the terms of the constitution. Particular problems arise on telephone
numbers, however, which I want to look at with a great deal of care. As
my hon. Friend has said, a considerable degree of concern has been
expressed by patients about the way in which certain premiums have been
charged in relation to such numbers. If he bears with us, I hope that
we will be able to deal with the issue at greater
length.
Mr.
Slaughter: I thank the Minister for that. It would be
helpful to know when he has an indication of when we can expect a
departmental response to the consultation. By mentioning prescription
charges, he tempts me to push the point on the constitution, which
clearly
notes “the
right to receive NHS services free of charge, apart from certain
limited
exceptions”. Prescription
charges are a clear example of that, but, as far as my constituents and
I are aware, telephone services are not. Does he therefore agree that
that inconsistency would be best addressed by not allowing the use of
084 numbers within the health
service?
The
Chairman: Order. I have heard the hon. Gentleman’s
point, but he is straying a little far from the terms of the
amendment.
Mr.
O'Brien: My hon. Friend is tempting me not only to stray
from the amendment, but also to pre-brief people on the outcome of a
consultation, which ought to be dealt with in a more appropriate way
and announced at a more appropriate time. If he will forgive
me, I will duck the question, valid as it is, and turn to
amendment
10. As
we go, as the hon. Member for Eddisbury has described it, ad nauseam
through the various ranks of subcontractors, it becomes, to use another
legal term, somewhat otiose as to whether the constitution applies; it
will at some stage become a matter for contract as to whether it does
or not. To put volunteers’ minds at rest, where there is no
contractual liability, tortious liability may arise, but that duty is
normally imposed not on the individual volunteer, but on the trust
itself. No new duty will arise that does not already exist in relation
to volunteers. He is quite right that volunteers do an enormously
important job for the NHS and, as a result of that, we do not wish to
impose any new burden on them. In our view, the provision will not do
so. Bodies
under a duty to have regard to the constitution must have regard to it
when performing their commissioning functions. Therefore, whenever they
contract with the NHS from a non-NHS organisation, we propose that
they will be legally obliged to ensure that the organisation acts in
compliance with the constitution when providing services. We have
chosen a deliberately broad approach to the duty to have regard to the
constitution in order to avoid contracting being a way of getting
around that duty. We want all those connected with the provision,
regulation or commissioning of health services to have regard to the
constitution and to uphold the values and ethos of the
NHS. In
terms of the example given of the provision of paper supplies, the
provision of NHS supplies will potentially bring into effect, as far as
the person purchasing them is concerned, the NHS constitution, if they
are otherwise covered by it. If someone is merely supplying a product
from the private sector, they are not otherwise bound by the NHS
constitution. As I have indicated, there are no new causes of action.
When the hon. Gentleman asks “where does it bite?”, it
bites where it bites already, but with a tiny bit of extra
energy—no more than that. I do not want to be too deliberately
opaque, but the aim, as I have said, is not to create a new cause of
action. As
far as employees, fair pay and contractual obligations are concerned,
we are not creating any new way in which negotiations on pay can be
conducted. There is no new legal obligation. As far as subcontractors,
and subcontractors of subcontractors, are concerned, it is entirely a
matter for them to delineate in terms of their contracts. If they wish
to take a particular view, that is a matter for them. The constitution
imposes no new obligation on
them. Mr.
Stephen O'Brien: I take the point about the volunteers and
the duty of care under tortious liability, which is one that would
always focus on an institution more quickly than it would on particular
individuals, subject to an individual having an express or ostensible
authority to commit a particular body in relation to its actions, which
would be unusual. It would be pretty unusual for it to be given to a
volunteer, although not impossible. I am happy to accept the
reassurance on that, as indeed I was on fair
pay. As
far as the paper suppliers example is concerned, what one needs to note
rather than press is if the NHS employee—who is part of the
process, whoever the employer body is within the NHS—has to have
regard to the constitution, it is possible that through various
contracting arrangements they might seek to impose conditions on the
supplier to ensure that they themselves can conform to the expectations
under the constitution. They can therefore help to
demonstrate—perhaps through an audited paper trail that I
suspect they will want to keep—that they have indeed had regard
to the constitution and that they feel that they have complied with it.
That is a possible way that the procurement contracts will flow
through. I suspect that we will have to wait and see. That might be an
actual example of the bite with a bit more energy rather than a greater
cutting power, if one wants to take the analogy far too
far. As
for the broad point made by the Minister on subcontractors, I can see
that there is an intent, which I think that I am satisfied with. The
approach taken to contractors, subcontractors and the chain of
contracted supply is effectively intended to be an anti-avoidance
measure, so that people cannot avoid having to have regard to the
constitution. There is a genesis at the top
of the chain—someone who will be covered and intends to be
covered by the Bill, once it is enacted. Following those reassurances,
I beg to ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn.
Mr.
Stephen O'Brien: I beg to move amendment 9, in
clause 2, page 2, line 41, after
‘service’, insert ‘paid for out
of public funds
and’. I
do not think that this matter will detain us for long. The amendment
would clarify the ambit of NHS services by including
“paid for out of
public
funds” in
the definition. That seems a much neater way of demarcating NHS
services than the Bill’s entanglement with specific enactments,
an issue which we covered earlier. I hope that the Minister will, of
course, continue to support health care paid for out of public funds.
As we have discussed, we have concerns about some of the issues where
the core principles have been taken away from what was proposed by the
Government. The Minister has sought to assure us that that is because
those values are represented elsewhere. As he knows, we have not taken
that to the nth degree, but there is still a concern. He might want to
reflect on whether that particular area will need further discussion
among the new ministerial
team.
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