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I apologise to the noble Earl, Lord Howe, for missing the beginning of his remarks but I got the thrust of his arguments when I came in. He will not be surprised to hear that I am opposed to putting principles of this kind in a Bill unless it is absolutely necessary—I have made many speeches on that. There was more of a case with regard to the Mental Health Act, as it became; we were trying to change, quite fundamentally, pretty ancient legislation 25 years after it had been framed. There is not a strong case here. Not content with constructing a constitution, we have a handbook on it as well, both of which can be amended over time as circumstances change.

The original authors of the NHS legislation—its founding fathers, if you like—were wise. They said that the Secretary of State would be under a duty to provide a comprehensive health service in England and Wales, as I recall, with a stony silence on precisely what “comprehensive” meant. That turned out to be very wise of the Labour Government of the time because three years later they had to introduce co-payments, which we call “prescription charges”.

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That is what they had to do at the time of an economic crisis. Circumstances change and Governments have to respond to them. With the NHS now taking a very large chunk of the public finances, we have to be wise about not putting primary legislation on the books that unreasonably ties the hands of future Governments when dealing with the economic circumstances that they face.

This set of principles has a lot of flaws, which were elegantly and eloquently described by the noble Lord, Lord Walton of Detchant. A big part of the NHS’s job is to provide the education and training of the next generation of doctors, nurses, scientists and other professions. Increasingly, its R&D role is incredibly important. With all the advances that we see in medical technology, it is important that the NHS plays its role in that area.

I am all in favour of taking wonderful Labour documents and enshrining them in legislation. The NHS Plan for 2000 was a wonderful document, but a document of its time. It did not say much about choice and competition. After that, choice and competition were introduced, and for a purpose; choice was certainly now a major part of the agenda, not just in the NHS but in the way that modern Governments respond to their citizens’ needs in the way they provide public services. Choice is an important issue for the future of the NHS.

We have moved on in many public services to accept a mixed economy of providers. Whether we like it or not, that is the world we live in. You could argue that we have always had mixed service providers in GPs, who are small business men and women from the private sector, so there is nothing very new about it. These are important issues, though, and the way that the amendment is framed, in terms of principles in primary legislation, would make it difficult for Governments to respond to changing circumstances and changing needs of societies. Often Governments make changes in something like the NHS because societies need change and they want, rightly, to be able to respond to that. These principles are too restrictive. I am afraid that while I understand the noble Earl’s thinking, and I have a high regard for him, those principles would tie us into a set of restrictions.

If I were being unkind politically, I would wonder whether this was a picture of the NHS that a Conservative Government would bring before us—basically, the NHS Plan circa 2000.

Lord Stoddart of Swindon: On Second Reading I said that I believed we should have had a Royal Commission on the health service. I believe that we should have had it a long time ago so we knew exactly what the health service was about, what it should do, what it should cost, who should pay for it and what have you. But since we have not had a Royal Commission we now have the NHS Constitution and we have an amendment before us that we are now considering.

I am old enough, of course, to have known Aneurin Bevan. He was kind enough to come to the Newbury constituency when I was fighting that hopeless seat to speak for me in the Corn Exchange there. I well remember that when he walked down the centre aisle,

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as he always did, he was jeered—and I also remember that when he walked out he was cheered. He was a great man and responsible for our present health service. I am not at all sure that he would have welcomed this handbook.

Aneurin Bevan believed that the health service should be run by local people for local people and should be financed through taxation. I am not at all sure that he would have welcomed the centralisation of decision-making that has taken place over the years. All the research for the health service, or a good part of it, done by Bevan himself and by Beveridge, was done in the localities. The first thing that Harold Wilson said to me when I arrived at the House of Commons in 1970 was that he knew Swindon well; he had been the research assistant to Beveridge, who examined the system that the Great Western Railway put into position for its workers.

The whole concept of the health service was one which, although financed through national taxation, was in the hands of local people for local people. But of course things have changed; one understands that. Because things are as they are, I said again at Second Reading that perhaps we have the second best with regard to rights and duties of people under the present National Health Service through this constitution.

I do not know whether the amendment before us wants to build on the constitution or whether it is necessary. The constitution probably sets out what people can expect and what duties they have, as well as what the staff should do, how they should be treated and how they should treat others. I am not at all sure that we want another amendment to be added to the Bill. However, if we are to add it, it needs to be looked at again.

There are phrases in the amendment that need to be tidied up. Proposed subsection (2)(a), for example, says that,

The fact of the matter is that the NHS core principle is that it should be free at the point of use. Again, at Second Reading, I said that I believe that people should know how much they are paying for it. When people know that, they will demand a better service. The noble Earl might consider taking out “not ability to pay” and adding “paid for by taxation” so that people understand exactly where the money is coming from.

When talking about the health service—which is a great service; do not make any mistakes about that—I often say to people, “How much do you think you pay for it? How much do you think the National Health Service costs?”, and I am amazed at some of the answers I get from people who should be up to date with the costs of the health service. At a dinner—I do not often attend dinners but nevertheless I was at one—I was talking to someone about the health service and I asked him, “How much do you think it costs?” He said, “Oh, £4 billion a year”. I said, “Just go up a bit”. He said, “Well, it must be £6 billion a year”. I said, “You are still not there”. He said, “Then it must be £10 billion a year”. I said, “Would it surprise you to know that it is £100 billion a year?” That really put

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him off his dinner. I said, “You are paying for it. No one else is paying for it”. The other day I asked someone in the House of Commons how much the National Health Service was costing. He is responsible for raising the money, but he did not know; he thought it was about £50 billion. There is a need for people to understand how much it costs because I am convinced that if they know how much it is costing them individually they will press for a better service. It happens elsewhere; there is no reason why it should not happen in the National Health Service.

I do not want to keep the Committee for too long but there are one or two other things that I really do not like about the amendment. The principle in proposed subsection (2)(d) states:

There is only one population in the United Kingdom and it is made up of British people. These people are not “populations”, they are people. They may have different needs but they are part of the population. The Government, correctly, want to see integration and, if we are going to refer to “populations”, particularly on the face of the Bill, we will be going against the policy of integration which the Government, as I have said, quite rightly want to pursue.

The principle in proposed subsection (2)(e) states:

Of course it will; that is its duty. That principle is simply verbiage. You do not need something like that on the face of the Bill.

The principle in subsection (2)(g) states:

Who else will the funds be designated to? National health funds are for national health patients whether the services are provided in national health hospitals and other organisations or in private organisations, which seems to be an increasing possibility. I am not sure that the amendment is necessary.

Finally, the principle contained in proposed subsection (2)(j) states:

I agree with that, but I am not at all sure that it can be achieved by the £12 billion which is being spent on the centralised computer system, which seems to fall behind year by year and seems difficult if not impossible to achieve. I am also very worried, bearing in mind the loss of people’s data in so many government departments and elsewhere, that patients’ confidential records will be lost or leaked and seen by people who should not see them. I read in the newspapers—perhaps the Minister will give us some assurance on this—that patients’ records are to be seen by pharmacists, which would be outrageous. I hope that the Minister can assure the Committee and the country that pharmacists and pharmacies are not to have access to people’s medical records through the computer system. I hope in relation to the present plans for centralised medical records that people will be able to contract in and not contract out, because inertia often means that people suddenly

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find that their medical records have been leaked to someone, having not understood that they could have requested an exemption from having their medical records shared throughout the country.

4.15 pm

I appreciate that the noble Earl, Lord Howe, is trying to be helpful, but I am not sure that his amendment would help in any way. Perhaps he could think about it and reword it following our discussion in this Committee.

Baroness Howarth of Breckland: I shall be brief, as I had not intended to speak at this point, but, having heard the debate, I felt that I wanted to come somewhere between the noble Earl, Lord Howe, and the noble Lord, Lord Stoddart. My first reaction is that I am very keen on principles being explicit in a Bill. I was anxious when I read this list and asked myself, “What if they change?”. I suppose that we are saying that principles may not change. I think that principles in the health service are changing. As the noble Baroness, Lady Barker, said, the health service has changed during the past 60 years, and it will fundamentally change again during the next few years. There may be things that we hold dear and precious which through the next few years we want to hold on to and, for that reason, people may want some principles in the Bill to protect them. I agree absolutely with the noble Earl that the difficulty is that Parliament has not been able to debate the constitution, which is where the issues should be more clearly enunciated. Along with my noble friend, I think that there are serious omissions in the list.

However, what has convinced me most today that these principles should not be in the Bill is the speech of the noble Lord, Lord Stoddart, which showed that, if they were included, we should spend much longer discussing detailed semantics than in the previous debate. For that reason, having principles on which many of us would disagree would lead to difficulty.

Tomorrow, the House of Lords Select Committee of which I have been the chair will publish its report on cross-border healthcare. Some very interesting and controversial issues relating to payment, equality, authorisation and accessibility are in that document, which discusses the commission’s latest notice on this subject. However, it is important to recognise that other issues will come through, not only regarding the devolved nations—I agree absolutely with my noble friend Lady Finlay that we will learn from each other about different ways of managing health services through the devolved nations—but we are fast becoming much more European. Some of us may not like that, but it is a harsh reality. As borders fall, health services will change.

My final point is about specialist services. The noble Lord, Lord Stoddart, talked about populations; the populations that concern me most are the small numbers of people who consume huge amounts of money, without which they would die. We have to hold on to that throughout our thinking. Equity and equal distribution are difficult concepts; postcode lotteries add to those difficult concepts and make principles difficult, sad as I am to have to say that.

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Lord Campbell-Savours: I will be very brief indeed. I have a single question for the opposition Front Bench. It arises from my conversation a couple of weeks ago with some colleagues at the other end and I can put it on the back of this amendment. Are the official Opposition satisfied with the general principles in the NHS Constitution, or is it the case that at some stage in the near future, in the event of a change of Government, they would want to revisit the NHS Constitution and, indeed, rewrite it? Would it endure for, say, at least a Parliament? That is all I wanted to ask.

Earl Howe: Perhaps I may answer that question now and get it out of the way. The broad answer is: yes, we are very happy with the principles set out in the constitution; they are worded well. The questions that I posed earlier were really around what was missing from those principles, because they do not entirely reflect those enunciated in 2000 when the NHS Plan was published. As I have said, those principles seem admirable and have stood the test of time. There is no intent to change, and there has been no discussion on our part on changing, these principles. Indeed, the whole point of my amendment is that Governments of whatever persuasion cannot tinker with the principles that underpin the NHS.

The Earl of Listowel: Before the Minister replies, perhaps I may briefly make one or two points relating to subsection (2)(f) of the list in the amendment, which states:

Ten years ago when I first entered your Lordships’ House, I visited housing in the East End of London with a health visitor and was struck by her ability to access very vulnerable families. Over the years since then I have intermittently come across health visitors and I am sad to say that each time I meet them they have expressed serious concerns about how they are being treated and about recruitment and retention of health visitors.

I was very glad to learn of the success of family/nurse partnerships and I am pleased that the Government are planning to invest in recruiting more health visitors. However, I have been concerned about the treatment of health visitors and I should be most grateful if the Minister wrote to me about what specifically was being done to ensure a more secure future for this important service.

The general principle which I see very much in terms of the child and family workforce is that if one invests in the workforce and values it, one will deliver a good quality of care and good outcomes for children and families, and in the health service. This is one principle that is absolutely right and probably will not change over time.

Furthermore, there has been a great deal of change in child and family services, made with the best of intentions, and much of it has been welcome. However, the difficulty of constant change is that it can tend to demoralise the workforce. Therefore, supporting and valuing staff may also make policy-makers always think before they make further changes that may be detrimental to the morale of the workforce.

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Baroness Masham of Ilton: The NHS is such a large organisation that some of the people working within it and the patients using it need reminding of what it does, so I see why the noble Earl, Lord Howe, wants the principles listed. I would like to see an additional principle, “(k) the NHS will do its best to prevent infections”—something that worries many people who use the NHS.

The problem when you have a list is that things get left out. Lists therefore need to be flexible. As the handbook is going to be reviewed every three years, principles could be changed or added.

Lord Darzi of Denham: Amendment 3 would place the principles of the NHS Plan, published in 2000, in the Bill. It would also mean that the principles published in the NHS Constitution on 21 January and all future versions of the constitution should be adjusted to reflect this set of principles.

I appreciate that in tabling this amendment the noble Earl wishes to ensure that we do not lose sight of the principles set out in the NHS Plan. I reassure him that no principles from the NHS Plan have gone missing from the constitution. Where they do not appear as a principle they are reflected elsewhere, either as a pledge or as a legal right. For example, there is a principle in the NHS Plan that the NHS will respond to the different needs of different populations. That has been translated into a patient right in the constitution: to expect your local NHS to assess the health requirements of local communities and to put in place the services considered necessary to meet those needs.

The second principle that the noble Earl referred to was about valuing staff, which was also touched on by the noble Earl, Lord Listowel. Obviously, staff are the NHS’s most important asset, and we are fortunate to have 1.3 million staff working in it. The constitution reflects that by making a number of pledges to the staff, including pledges to provide staff with personal development, access to appropriate training and line management support, and pledges to provide support and opportunities for staff to maintain their health and well-being. The constitution’s third principle also reflects the importance of education and training in the development of staff.

The noble Earl also raised the issue of the difference in the wording between “patients” and “public” and why we have changed one to the other. “Patients” applies to people already accessing the health service, but the NHS is for everyone, even for the well, in order to keep them well. The revised wording reflects that.

The noble Baroness, Lady Cumberlege raised the issue of whether the NHS will provide a comprehensive service. The first principle of the constitution confirms that. The NHS will provide a comprehensive service, and it is the Government and the constitution that are trying to secure that, at least for the next 10 years. That is based on the Health Act 2006.

The noble Baroness referred to the issue of quality and safety, and I am grateful to her for that. The third principle talks about how the NHS should aspire to the highest standards of excellence and professionalism in the provision of high quality care

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that is safe, effective and focused on the patient’s experience. We have used these definitions, and I have no doubt that we shall be debating them when we discuss some of your Lordships’ amendments on the quality account.

4.30 pm

The constitution also sets out a patient’s right to expect organisations to meet the required levels of quality and to make every effort to improve the quality of healthcare they provide. We hope that the Bill meets the aspirations of not just the high quality that the staff wish to provide, but also the high-quality care that the patients expect from the NHS.

The noble Baroness, Lady Finlay, also referred to the NHS Constitution and said that it applied only to England. The devolved Administrations are of course free to make their own decisions, but I should like to reassure her that although the constitution applies only to England, none of the other devolved Administrations have moved away from the core principles on which the NHS was founded in 1948. This is our attempt to ensure that these are maintained. It has been suggested that the constitution will change every three years. That is incorrect. The constitution will not be renewed for at least 10 years; it is the handbook that will be reviewed every three years.

The noble Lord, Lord Walton, raised the issue of education of healthcare professionals and the research aspects of it. I think I have covered the educational aspect of it. The third principle in the constitution recognises the importance of innovation and the promotion of research, but not at the expense of confidentiality. I return to the point raised by the noble Baroness, Lady Barker, and the noble Lord, Lord Stoddart. Only healthcare professionals and people who owe the same duty of confidentiality as healthcare professionals are legally allowed to process sensitive personal information for medical and research purposes. Healthcare professionals are qualified and registered staff, such as doctors and nurses. Established NHS practice uses patient information when necessary to support research. We have seen many fruits of that research over the past 60 years, and we lead globally in many areas of research because of the NHS and its funding principles.

The noble Lord, Lord Stoddart, asked whether we could be clearer about funding the NHS. The document published with the constitution, the Statement of NHS Accountability, states on its first page:

“The NHS in England currently spends around £100 billion a year—equivalent to nearly £2,000 per person on average.”

That is in the constitution, and I have no doubt that that will help many who use the NHS to understand the value of the care they receive.

I reassure the noble Baroness, Lady Barker, that over the summer the constitution and the principles were consulted on extensively, specifically looking at the 10 NHS planned principles, which we have looked at since 2000. This extensive engagement with key stakeholders, when drawing up the constitution, allowed us to refine the principles set out in the NHS Plan. We

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now have a set of principles that has the support of patients, the public and the staff.

The large majority of respondents to the consultations thought that the principles articulated were broadly right; a small number of improvements were suggested and the final published version of the constitution reflected those comments.

It is important to remember why we have chosen not to include any part of the NHS Constitution in the Bill. As the noble Lord, Lord Walton, eloquently said, “We do not want to create a lawyers’ charter here”. That is why this is a declaratory and not a legal document. I think we can all agree that we would not wish to see decision-making in the NHS become a preserve of the courts. Equally, enshrining the NHS principles in the Bill would set them in stone until primary legislation was changed. While it is certainly not my intention that the principles of the NHS should change in any significant way—indeed, I see these principles as enduring—I also believe that it is important that there is a degree of flexibility, as highlighted by my noble friend Lord Warner, in relation to the NHS as it grows and evolves. So the proposals in Clause 3 for the constitution to be reviewed at least every 10 years following full consultation with relevant groups allow for this degree of flexibility while ensuring that the principles endure.

Given my reassurance that the principles from the NHS plan have not been lost and that the principles in the constitution have been subject to a full consultation, I hope that I have convinced the Committee and that the noble Earl, Lord Howe, feels able to withdraw his amendment.

Lord Stoddart of Swindon: Before the noble Earl does that, I wonder whether I could clarify a couple of points. When I referred to pharmacists, I meant private pharmacies. I perfectly understand that in hospital pharmacies there is proper control. What one cannot be sure about is that there would be proper control within a private pharmacy. That is what I was talking about.

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