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The Government’s intention is that when the constitution is reviewed in 10 years, carers will be included in the consultations. It is also the Government’s intention that carers should be consulted on those affected by more minor revisions of the NHS constitution. As drafted, Clause 3(3) and 3(5) refers to the need to consult members of the public and it was our intention

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that carers would be part of that. But I have listened; I will take into account what has been said and come back at a later stage having looked at the issue more specifically.

Amendment 19 proposes that local involvement networks, or LINks, be consulted on the 10-year review of the constitution. Again, the Government recognise the valuable part that LINks played in shaping the constitution that is now before the Committee. Many LINks across England contributed to the consultation process, including those at Gateshead, Hull, Gloucestershire and Sandwell. Again, it is our intention to continue consulting local involvement networks on relevant matters when reviewing the constitution or when the constitution is reviewed in 10 years’ time.

In Amendment 21, the noble Baronesses, Lady Barker and Lady Tonge, propose that local authorities be consulted on the 10-yearly review of the NHS Constitution. Again we understand the importance of joined-up care and we believe that local authorities have already been captured. I am sorry this goes on; this involves each contributor based on the long list eloquently put by the noble Lord, Lord Walton.

I can reassure the noble Earl, Lord Howe, that producing a report on the result of the constitution, as proposed in Amendment 14, is a standard government practice. For this reason, the amendment is unnecessary. I return to the Government’s code of practice on consultation which sets out that, following a consultation exercise, a summary of any significant comment should be provided. This feedback should normally set out what decisions have been taken in the light of what was learnt from the consultation exercise. This information should normally be published before or alongside any further action. I can put on record that the Department of Health has every intention of complying with this code of practice when it consults on revisions of the NHS Constitution. Indeed, it has produced a written response to last year’s consultation on the draft constitution.

The noble Baroness, Lady Cumberlege, was very kind in relation to the consultation exercise that the next stage review went through. I agree that some have a cynical view about consultations, mostly clinical consultations, which they say bring groups of clinicians together to come up with the answer that we want. Far from it. The next stage review engaged more than 2,000 clinicians, most of whom felt empowered by the consultation, and what is in front of the Committee in High Quality Care for All is, more or less, the policies that we captured through consulting with clinicians. What we have done in the constitution is based very much on similar principles.

I hope that I have been able to clarify why it will not be necessary to extend the list of persons or bodies to be consulted every 10 years. However, I have some sympathy with the persuasive arguments that noble Lords have put forward for recognising certain persons or bodies explicitly. I am more than happy to discuss these in greater detail—carers specifically—and some other groups that have been pointed out in this important debate. I shall look again at the drafting of the clause to ensure that the balance is right in relation to the 10-year review and the report, keeping in mind the

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advice that I have received from the noble Lord, Lord Walton. In giving these commitments to look at the issue again and at the relevant parts of subsections (3) and (5), I hope that the noble Baroness will feel able to withdraw her amendment.

Baroness Masham of Ilton: How important does the Minister feel the specialised services are? He did not mention them.

Lord Darzi of Denham: The noble Baroness will be fully aware—and I should probably declare an interest here—that I work in a specialist hospital. I have a very high regard for specialist services. We have debated many times the role of specialist providers. High Quality Care for All and the 10 regional reports show a high regard for specialist services. That is one area in which I have tremendous confidence, as have, historically, most of those who commission specialist services. I hope that they will look at their consultative processes in greater detail in future because they are important services and are the jewels in the crown of NHS provision.

7 pm

Baroness Barker: On behalf of all noble Lords, I thank the Minister for the very detailed and considered response that he gave to the debate. It was characteristically generous and assiduous of him. I sincerely thank him for that.

I thank noble Lords for their contributions. This group of amendments has answered for me what I might call Lord Walton’s question: if there is to be a list, who should be on it? I come back to what I think is the answer to that. It was enormously helpful to have explained the distinction between small revisions to be carried out periodically and the process of the 10-year review. The Minister’s general commitment to the inclusion of a wide range of stakeholders, to use the jargon, was welcome. The success of this document, once it is launched, does not rest solely with the NHS. It cannot; the NHS cannot implement it all—it has to be done in conjunction with others. There was recognition of that in what the Minister said.

To the noble Lord, Lord Campbell-Savours, I say, “Hold on”. At the rate they are nationalising banks, the noble Lord may yet see a piece of legislation containing the words “trade unions”, so he should not give up. Just persist.

It was important to have the discussion about specialised services. There is always a legitimate concern that those who have specialised conditions tend to be pushed out of the picture by those who have conditions that are more prevalent and therefore tend to be far higher up the political list.

We may have teased out one thing in the discussion. There is a case for putting carers into this. That point was made principally by the noble Baroness, Lady Wilkins, who talked about the fact that her partner became her carer at a particular point. The question of who is a carer and who is not changes over time. That is one thing. The second thing is that in the NHS, and increasingly in social care, there is a more coherent

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and consistent view of users and the rights of users. The distinction is that in the NHS it is more likely that practitioners will see users without their carers being present and will therefore be less likely to feel comfortable with breaking clinical confidentiality. Therefore, with all the best will in the world, carers in the NHS are in a slightly different position from those in social care. That is not to say that there is bad practice in social care—there is not—but there is a recognition in social care that the majority of the work is done by informal carers and that they have to be involved in their own right much more so than in the NHS.

For those two reasons, it was very good that we drew out why carers have to be mentioned distinctly. Nobody wants the review of the constitution to become a cumbersome exercise, but we want it to be valid and to throw out valid results and challenges to the NHS every 10 years. That would be a very useful thing to do. With those caveats, I welcome the Minister’s agreement that he will take away part of our discussion and perhaps refer to it at a later stage. I beg leave to withdraw the amendment.

Amendment 13 withdrawn.

Amendments 14 to 21 not moved.

Amendment 22

Moved by Baroness Barker

22: Clause 3, page 3, line 17, at end insert—

“( ) The review will take into account the role the NHS Constitution has played in bringing together health and social care.”

Baroness Barker: As noble Lords will recognise by the drafting, this is a probing amendment. I apologise for the deficiencies in the drafting. The amendment goes in part to the ground that the noble Earl, Lord Howe, opened up for us in a previous debate. The review of the constitution is laid out before us as a process or mechanism. There is not a great deal about the substance and objective of such a review. It is self-evident that it will be a process that is gone through to try to determine the extent to which those principles have been upheld. As somebody who, at least in part, makes their living from helping organisations to do evaluation processes, I could go on for some considerable time about how you evaluate principles. I am afraid that these days I charge a fee for that, so I will not.

It is right for us to probe what the outcome of the review is meant to be. It is also right that we should identify this one particular area—that is, the review taking into account the extent to which the NHS Constitution has played a role in bringing together health and social care. I have a particular reason for saying that. It is possible that the NHS could achieve the aspirations, aims and goals that are set out in the constitution and handbook. It could do so at the expense of social care and it could do so at the expense of the resources that are devoted to social care. One fundamentally important part of this will be to evaluate the NHS on the extent to which it, in conjunction with

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others, achieves the aims and objectives set out before it in the constitution. Therefore, it is worth probing in the amendment—we know a bit about the process—what the intended outcome is going to be, and the extent to which this constitution and its implementation might act as a magnet for resources drawn from other areas of public services. I beg to move.

Lord Darzi of Denham: Amendment 22 would place a duty on the Secretary of State to take into account any impact on bringing together health and social care when conducting any review of the NHS Constitution.

I think that it would be helpful if I first give some context around the proposals for the review of the constitution. As we have said previously, the intention behind the 10-year review is to keep it up to date and to ensure that it remains fit for purpose. It is a way of ensuring that, while remaining an enduring document, the constitution can keep up with changes in policy and the law and with people’s changing expectations of the NHS.

We have not sought to specify in the Bill particular areas that the review should take into account over and above others, nor do I think that it would be appropriate to do so. I appreciate, however, that the noble Baronesses, Lady Tonge and Lady Barker, were concerned at Second Reading that the NHS Constitution did not give enough attention to the interface between the NHS and social care. I should like to reassure her on two counts. First, of course it remains the Government’s priority that the NHS and social care systems should work together as seamlessly as possible. For example, following High Quality Care for All, we are piloting new models of integrated care provision and looking at innovative ways of improving the interface between health and social care systems. Secondly, although the NHS Constitution is a constitution for the NHS and not for social care, it highlights throughout the importance of joined-up services. For example, one of the seven principles is:

“The NHS works across organisational boundaries and in partnership with other organisations in the interest of patients, local communities and the wider population”.

The principle goes on to say:

“The NHS is committed to working jointly with local authorities and a wide range of other private, public and third sector organisations at national and local level to provide and deliver improvements in health and well-being”.

The NHS Constitution also contains a pledge on the part of the NHS to make the transition as smooth as possible when patients are referred between services. This is particularly relevant to transitions between health and social care services.

Noble Lords will be aware that Clause 5 would require the Secretary of State to report on the effect of the constitution every three years. Such a report would of course look at partnerships and at working across organisational boundaries, given that these are such important themes in the NHS Constitution. The other issue is whether there should be a social care constitution. One is not planned but we are about to launch a Green Paper on social care and I have no doubt that that will be debated in due course.

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I hope that I have reassured the noble Baroness sufficiently on this matter for her to withdraw the amendment.

Baroness Barker: I thank the Minister very much for that reply. It is worth bringing to mind that a year ago noble Lords—many of whom are here today—queued up in this Room to take part in the Government’s plans for the CQC. It was debated in great detail because there was concern that there would be an imbalance in the regulatory body as between health and social care. We may have been paranoid then and we may be now because we continue to be concerned about the extent to which health and social care are not equal partners on the ground. However, I do not think that we are paranoid. The Wanless report set out how important it is for the NHS to be fully engaged with social care planning systems so that the preventive agenda can be built up and the NHS does not become a body which stacks up acute needs for the future. That is the important point.

I am intrigued by the idea of a social care constitution. I shall save my detailed views for when we come to debate the Green Paper but I think that it would be miraculous to draw up a constitution when there is no political or social agreement about what social care levels of entitlement are or how they should be funded. However, one should never rule out what one does not know.

For the moment, I shall withdraw the amendment. However, if only one thing were to be prescribed as an output for this review process, it should be the NHS Constitution because it is of such fundamental importance to health, health promotion and the prevention of ill health. However, due to the lateness of the hour, I beg leave to withdraw the amendment.

Amendment 22 withdrawn.

7.15 pm

Amendment 23

Moved by Earl Howe

23: Clause 3, page 3, line 19, at end insert “and lay a copy before Parliament”

Earl Howe: This amendment is designed to highlight an anomalous fact as regards this part of the Bill, a fact to which I referred earlier, which is that Parliament is being asked to enshrine “regard to the NHS Constitution” in primary legislation, but at the same time has no present or prospective opportunity to consider the contents of that constitution.

This is not just an academic objection. In the end, what it means is that the rights of patients and staff in the NHS are whatever the Secretary of State says they are, not what Parliament says they should be. In this sense, Parliament is being asked to sign a blank cheque to Ministers, whether of this Government or of a future Government. Bearing in mind how seminal a document and how far reaching in its effects the constitution is meant to be, I find that troubling and difficult to accept. The Minister may reply that the

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Secretary of State is accountable to Parliament in all that he does, which is certainly true. I accept—how could I not?—that it would be completely impossible for a Secretary of State to refer to Parliament before implementing each and every executive decision that he takes. He has to be allowed to get on with his job.

However, the constitution is different from an ordinary executive ministerial decision. It is meant to underpin for the long term everything that the NHS does and a great deal of what Ministers are able to do or not to do. With each right that the constitution defines or creates, it shapes ipso facto future health policy. Are these not matters which Parliament should be given an automatic opportunity to scrutinise? One has only to think of the right to choice that the constitution enshrines for the very first time to appreciate that these are in no sense trivial matters for health policy. However, according to the Bill, Parliament is out of the frame as regards approving the document.

The Government have published a separate statement of NHS accountability which makes considerable play of the fact that Ministers are accountable to Parliament. The NHS Constitution itself states, near the beginning, as part of the seventh key principle that,

That is true up to a point, yes, but surely not totally. We do not say that it is up to the Government to set the framework for the NHS in any way that they want. They cannot, for example, invent foundation trusts or abolish a health regulator without first obtaining the approval of Parliament. Parliament has a role in defining the framework for the NHS. Equally, some ministerial decisions have to come before Parliament in the form of a statutory instrument and cannot become law unless and until Parliament has signified its approval or absence of disapproval.

The question for us is whether the NHS Constitution is of a kind which merits some form of nod to the sovereignty Parliament or whether it is not. I have to say that I think it is. The Minister has previously argued that he does not believe it is appropriate to include any element of the NHS Constitution in the Bill. We can continue to discuss that. However, the amendment proposes something much more modest. It is merely saying that once the constitution has been revised, a copy of it should be placed before Parliament. That duty of placing it before Parliament ties in the legislature, even if only in a loose way, to the content of the constitution. I do not think that this is a great deal to ask. I beg to move.

Baroness Howarth of Breckland: I support the amendment of the noble Earl, Lord Howe, having said during the debate on the principles that the key to this issue was the problem of not having the constitution placed before Parliament.

Lord Darzi of Denham: The purpose of the amendment is to place a duty on the Secretary of State to lay a copy of any revised version of the NHS Constitution before Parliament as an Act paper. First, I assure the

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noble Earl that I agree with his assessment of the importance of Parliamentary accountability, but within the context of the constitution. I should remind Members of the Committee that most of the rights in the constitution are already enshrined in law, with the exception of the three new rights that we debated at Second Reading.

The Government would always expect to make a document of such importance available to parliamentarians, usually by placing a copy in the Library and issuing a Written Ministerial Statement. Indeed, Ministers are bound by the Ministerial Code to make important announcements such as this to Parliament.

The noble Earl will of course be aware that when the constitution was published on 21 January it was accompanied by a Written Ministerial Statement and copies were placed in the Library. I do not consider that it is necessary to lay before Parliament future versions of the Act paper rather than place them in the Library.

Furthermore, the constitution is intended to be a public-facing document, unlike annual reports or accounts of non-departmental public bodies, which are often laid as Act papers. Indeed, the constitution is a living, although enduring, document, which will be updated over time. We need the flexibility to alter it, and the current arrangements allow us that flexibility while giving Parliament proper sight of the document. There is no question of the constitution being changed by the back door, given our commitment to consult on any revisions, as we debated earlier.

Given my reassurances that we have every intention to follow parliamentary procedures, I hope that the noble Earl feels able to withdraw his amendment.

Earl Howe: Those are important reassurances, which I take on board fully. I was reassured in particular by the Minister’s mention of the Ministerial Code, which I hope and believe will pertain throughout future Governments. I acknowledge of course that a Written Statement was made to Parliament when the present constitution was signed. I shall consider carefully what he said and whether it is sufficient for the purposes of this Committee. I was grateful for the support of the noble Baroness, Lady Howarth, for the amendment. The amendment may be unnecessary in the light of what the Minister said. I shall take advice on that point. In the mean time, I beg leave to withdraw it.

Amendment 23 withdrawn.

Lord Darzi of Denham: This may be a convenient moment for the Committee to adjourn until Thursday at 2 pm.

The Deputy Chairman of Committees (Lord Colwyn): The Committee stands adjourned until Thursday 26 February at 2 pm.

Committee adjourned at 7.21 pm.

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