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I hope that the service redesign concept that the noble Lord referred to is already covered within the statement of accountability. I hope, therefore, that the noble Earl is able to withdraw his amendments.

Lord Mackay of Clashfern: My Lords, before the noble Lord sits down, I wonder why the statement of accountability is not included as part of the constitution. It seems to be extremely important, and indeed the constitution reflects the importance of accountability. If you were stating the manner in which you should be accountable and the detail in the statement, I should have thought that it would be at least a candidate for being part of the constitution.

Lord Darzi of Denham: My Lords, I am grateful to the noble and learned Lord, and I shall try to clarify the matter. Principle 7 in the constitution refers to accountability within the NHS, which is part of the constitution. At the time, we did not think of a separate public-facing document, and the Statement of NHS Accountability was the result of the consultation that we carried out with the public and the staff. That is why we published it alongside the constitution on 21 January this year. Although there is a reference to accountability in principle 7, the consultation made a strong case for publishing a statement of accountability alongside it. If that is still an issue, I shall be more than happy to look into it further.

Earl Howe: My Lords, I am very grateful for the support of the noble Lord, Lord Walton, and for the excellent points that he made. I am equally grateful to

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my noble and learned friend, who posed the key question very well. Reading the Department of Health website, I think that you would certainly be forgiven for thinking that the NHS Constitution was, in essence, a three-legged stool, consisting of the 12-page document, the handbook and the statement of accountability. I, for one, was very comfortable with that. Notwithstanding that, the Minister implied that the statement of accountability is not in fact part of the constitution. The question that that raises is: do NHS staff or the boards of NHS trusts have to have regard to the statement of accountability? It would appear that they do not, and I wonder what kind of message that sends out to them.

Lord Darzi of Denham: My Lords, I am sorry to intervene but perhaps I may again read what principle 7 in the constitution says:

“The system of responsibility and accountability for taking decisions in the NHS should be transparent and clear to the public, patients and staff”.

That statement is in the constitution.

Earl Howe: My Lords, that statement is certainly in the constitution but the content of the statement of accountability is not in the 12-page document. It is only when you read it that you understand what the accountability structure in the health service consists of. The Minister suggested that, because that statement was in the constitution under principle 7, it was not necessary to include it in the Bill. I am a little puzzled by that because the constitution refers to the handbook. It says:

“It”—

that is, the constitution—

One could equally well argue that perhaps the wording of the handbook should not appear in the Bill because the pledge is already set out in the constitution. Therefore, we are on difficult ground here. I remain puzzled but this is not an issue that I intend to press. If the Minister can enlighten me further after these proceedings, naturally I shall be grateful. However, for now, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Amendment 2

Moved by Earl Howe

2: After Clause 1, insert the following new Clause—

“Core principles

The Secretary of State may by regulations make provision as to the core principles of the NHS Constitution.”

Earl Howe: My Lords, in moving this amendment, I bring us back to an issue that gave rise to a gratifying amount of debate in Grand Committee—that is, the question of whether Parliament should have some sort of say in the content of the NHS Constitution and, if

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so, to what extent. I do not need to remind noble Lords that we have a very curious situation at the moment. The NHS Constitution was signed off by the Prime Minister in person early in the new year amid publicity and expressions of mutual congratulation of a kind that one associates with an event of some importance. Important as the event was seen to be, the publication and adoption of the NHS Constitution have nevertheless been entirely divorced from any parliamentary process. I am one of those individuals who think that that is just wrong. The constitution is a document that is intended to underpin the values and the modus operandi of the entire NHS for the next 10 years, at least, and as such it has been promoted by the Government as a text of fundamental significance for both staff and patients. It is not just that Parliament has been given no say at all on the content of the constitution, which I find regrettable, it is also that without the stamp of parliamentary approval on what the document actually says, the substance of it completely lacks any sort of legal standing.

3.30 pm

In Grand Committee the Minister cited two main reasons for not incorporating the constitution or any part of it in the Bill. He said that he did not want to set anything in stone and, equally, he did not want to create a lawyers’ charter. I understand both those objections and, indeed, a number of noble Lords whose voices I always listen to weighed in on the Minister’s side. I have therefore given renewed thought to the problem. By this amendment I suggest that there could be another way of achieving the objectives I have talked about; that is, by giving the Secretary of State a power to make regulations in which the core principles underpinning the constitution could be set out. That statutory instrument would be the direct link between Parliament and the constitution and would quite literally legitimise the content of the document. It would be up to the Government to specify what the principles would be, but if they happened to be closely related to the principles set out in the constitution itself, I am sure that we would all be satisfied with that.

That, I think, deals with the Minister’s first objection, because, with a statutory instrument, nothing would be set in stone. If the Government wished in some way to amend the principles at the 10-year review point, they could do so without bringing forward primary legislation. The Minister may well say that I have not dealt with his second objection; namely, that by giving any element of the constitution the force of law, we run the risk of creating a lawyers’ charter. I suggest to him that this is not a worry that he needs to entertain, provided that, in the statutory instrument, we restrict ourselves to principles as opposed to rights.

The difference between rights and principles in this context is an important one. There can perhaps be no better example in law of the significance of that distinction than the European Charter of Fundamental Rights. The noble and learned Lord, Lord Goldsmith, published a paper in February 2001 in which he very helpfully drew a distinction between individually justiciable classic rights, by which he meant the civil and political rights guaranteed under the European convention, and what

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he termed the social and economic rights covered by the charter, which are not really rights at all, but rather general principles which both the Union and European member states may not infringe when framing new legislation of any kind. The principles do not themselves give rise to rights, nor do they oblige member states to legislate in a particular way. They act as a means to ensure that any new legislation cannot be enacted in terms which violate the principles.

I emphasise the opinion of the noble and learned Lord, Lord Goldsmith, that no new rights are imposed on member states or their citizens by reason of the principles being included in the European charter. We perhaps need to remind ourselves that the UK is signed up to the charter. The parallel with the issue we are now debating is, I think, a direct one and extremely illuminating. These are the reasons why I believe this amendment, or one like it, poses no dangers at all, but rather gives us the best of all worlds—flexibility for the Government and a means by which the citizens of this country can be assured of Parliament’s approval of what the NHS Constitution contains. I believe that that assurance is of fundamental importance and therefore I beg to move.

Lord Darzi of Denham: My Lords, Amendment 2 would mean that the Secretary of State would need to make regulations to address changes to the principles set out in the NHS constitution. I understand that the noble Earl wishes to give a greater role to Parliament in determining the principles of the NHS. However, as I said in Committee, as acknowledged by the noble Earl, I do not believe that this amendment is necessary and will say why it carries a risk. The principles of the constitution were not dreamt up by the Government. They articulate the foundation on which the NHS has been built over many decades, and many of them have roots in primary legislation. Importantly, they were the result of full public consultation. Any changes to them would also require full consultation.

If the noble Earl’s intention is to ensure that the Government of the day cannot tinker with the principles of the NHS behind closed doors, I can assure him that they could not. The Government would not be able to alter the founding principles of the NHS just by changing the wording of the principles in the NHS constitution, even if they did so following full consultation. That is because Parliament creates the underpinning legislative framework from which many of these principles are derived. For example, the second principle about access to services being based on clinical need, not ability to pay, is derived from Section 1(3) of the National Health Service Act 2006. If the Government of the day wished to change that principle—I can assure noble Lords that this Government would not—they would need to amend primary legislation with the consent of Parliament. Revising the NHS constitution would not be sufficient. Similarly, Section 72 of the NHS Act 2006 would have to be amended in order to change the constitution’s fifth principle that the NHS works across organisational boundaries.

As the noble Earl mentioned, I was concerned in Committee that we should not make a lawyer’s charter out of the constitution. Placing part of the constitution in legislation, whether secondary or primary—the principal

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part—brings with it an increased risk of litigation. I am sure that we all agree that we would not wish to see decision-making in the NHS become the preserve of the courts.

If the principles of the constitution were to be addressed in regulations, it would also create potential ambiguity with the rights, pledges and values set out in the constitution. I am very grateful to the noble Earl for addressing the issues about the rights and the examples in relation to the European charter. Those sorts of ambiguities have the potential to create litigation, which I am sure we would want to avoid.

It would be unusual and cumbersome to single out one part of the constitution to be treated differently from the rest when reviewing it. The constitution is a coherent whole and we have proposed a system for reviewing it involving full consultation. I think this is the right process for updating the constitution. Given my reassurances and the long debate we had in Committee, I still do not believe that we should separate the principles. I hope that I have reassured the noble Earl that any changes to the principles, which are historically underpinned by legislation, will obviously be debated in Parliament. I hope that the noble Earl will feel able to withdraw his amendment.

Earl Howe: My Lords, I am grateful to the Minister for his reply. He gave only a brief nod to the problem which I had been trying to identify in my remarks, which is, as I see it, that the model which the Government have chosen to adopt is that the content of the constitution—the principles, the values, the rights and the responsibilities—is totally detached from Parliament. I believe that that is simply wrong in principle. I realise that Ministers are well intentioned and extremely unlikely to change the principles set out in the constitution. However, for the reasons I outlined, the amendment offers a way of finessing the objections raised to the more explicit amendment which I tabled in Grand Committee. In my view, it bridges the gap which the noble Baroness, Lady Barker, referred to on that occasion.

The Minister said that in his opinion the amendment would carry the risk of encouraging litigation against the NHS. However, if the noble and learned Lord, Lord Goldsmith, was right in his analysis of the European Charter of Fundamental Rights in drawing a material distinction between justiciable rights and non-justiciable principles, it surely follows that the risk of litigation with a formula of this kind has to be more apparent than real. Nothing the Minister has said in his reply has persuaded me that the parallel I have drawn is incorrect

The issue I am raising is one of principle. It casts no aspersions whatever on Ministers but it is important, and I would like to test the opinion of the House.

3.42 pm

Division on Amendment 2.

Contents 122; Not-Contents 118.

Amendment 2 agreed.



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Division No. 1


CONTENTS

Alton of Liverpool, L.
Anelay of St Johns, B. [Teller]
Astor of Hever, L.
Attlee, E.
Baker of Dorking, L.
Bowness, L.
Bridges, L.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Caithness, E.
Campbell of Alloway, L.
Carnegy of Lour, B.
Cathcart, E.
Chalker of Wallasey, B.
Cobbold, L.
Cope of Berkeley, L.
Courtown, E.
Craigavon, V.
Crathorne, L.
Crickhowell, L.
De Mauley, L.
Denham, L.
Dixon-Smith, L.
Dundee, E.
Eccles, V.
Eccles of Moulton, B.
Elliott of Morpeth, L.
Elton, L.
Emerton, B.
Feldman, L.
Ferrers, E.
Finlay of Llandaff, B.
Fookes, B.
Freeman, L.
Gardner of Parkes, B.
Geddes, L.
Glentoran, L.
Goodlad, L.
Greenway, L.
Hanningfield, L.
Henley, L.
Higgins, L.
Hodgson of Astley Abbotts, L.
Howard of Rising, L.
Howe, E.
Howe of Aberavon, L.
Hunt of Wirral, L.
Hurd of Westwell, L.
James of Blackheath, L.
Jenkin of Roding, L.
Kingsland, L.
Krebs, L.
Lawson of Blaby, L.
Lindsay, E.
Lucas, L.
Luce, L.
Luke, L.
Lyell, L.
McAlpine of West Green, L.
McColl of Dulwich, L.
Macfarlane of Bearsden, L.
MacGregor of Pulham Market, L.
Mackay of Clashfern, L.
Mancroft, L.
Mar, C.
Marlesford, L.
Masham of Ilton, B.
May of Oxford, L.
Mayhew of Twysden, L.
Montrose, D.
Morris of Bolton, B.
Murphy, B.
Naseby, L.
Neuberger, B.
Neville-Jones, B.
Newton of Braintree, L.
Noakes, B.
O'Cathain, B.
Oppenheim-Barnes, B.
Palmer, L.
Parkinson, L.
Patel, L.
Patten, L.
Perry of Southwark, B.
Ramsbotham, L.
Rawlings, B.
Reay, L.
Renfrew of Kaimsthorn, L.
Roberts of Conwy, L.
Rodgers of Quarry Bank, L.
Rogan, L.
Ryder of Wensum, L.
Saltoun of Abernethy, Ly.
Seccombe, B. [Teller]
Selborne, E.
Selsdon, L.
Sharples, B.
Shaw of Northstead, L.
Sheikh, L.
Shrewsbury, E.
Skelmersdale, L.
Soulsby of Swaffham Prior, L.
Stewartby, L.
Stoddart of Swindon, L.
Tanlaw, L.
Taylor of Holbeach, L.
Tenby, V.
Trefgarne, L.
Trimble, L.
Trumpington, B.
Ullswater, V.
Verma, B.
Vinson, L.
Waddington, L.
Wade of Chorlton, L.
Walpole, L.
Walton of Detchant, L.
Warnock, B.
Warsi, B.
Wilcox, B.
Willoughby de Broke, L.

NOT CONTENTS

Ahmed, L.
Amos, B.
Ampthill, L.
Archer of Sandwell, L.
Bach, L.
Barnett, L.
Bassam of Brighton, L. [Teller]
Best, L.
Billingham, B.
Bilston, L.
Blood, B.
Boothroyd, B.
Borrie, L.
Bradley, L.
Brett, L.


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Broers, L.
Brooke of Alverthorpe, L.
Brookman, L.
Campbell-Savours, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Corston, B.
Craig of Radley, L.
Darzi of Denham, L.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Deech, B.
Desai, L.
Donoughue, L.
D'Souza, B.
Dubs, L.
Eatwell, L.
Elder, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Farrington of Ribbleton, B.
Filkin, L.
Flather, B.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Fyfe of Fairfield, L.
Gibson of Market Rasen, B.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Greengross, B.
Gregson, L.
Grocott, L.
Hannay of Chiswick, L.
Harris of Haringey, L.
Hart of Chilton, L.
Haworth, L.
Hilton of Eggardon, B.
Howarth of Breckland, B.
Howarth of Newport, L.
Howells of St. Davids, B.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Jay of Paddington, B.
Jones, L.
Jones of Cheltenham, L.
Judd, L.
Kingsmill, B.
Lea of Crondall, L.
Levy, L.
Lipsey, L.
McIntosh of Hudnall, B.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Malloch-Brown, L.
Massey of Darwen, B.
Maxton, L.
Mitchell, L.
Montgomery of Alamein, V.
Moonie, L.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morris of Manchester, L.
Moser, L.
Myners, L.
O'Neill of Bengarve, B.
O'Neill of Clackmannan, L.
Patel of Blackburn, L.
Patel of Bradford, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Prosser, B.
Ramsay of Cartvale, B.
Rendell of Babergh, B.
Richard, L.
Rooker, L.
Rowlands, L.
Royall of Blaisdon, B.
Scotland of Asthal, B.
Sewel, L.
Sheldon, L.
Simon, V.
Slim, V.
Smith of Leigh, L.
Soley, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Temple-Morris, L.
Thornton, B.
Tunnicliffe, L.
Warner, L.
Watson of Invergowrie, L.
Wilkins, B.
Williams of Elvel, L.
Williamson of Horton, L.
Wilson of Tillyorn, L.
Young of Hornsey, B.

Armed Forces: Reserves

Statement

3.52 pm

Lord Tunnicliffe: My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my right honourable friend the Minister of State for the Armed Forces. The Statement is as follows.

“With permission, Mr Speaker, I would like to make a Statement about the report on the strategic review of reserves, which I am publishing today. A copy has been placed in the Library of the House.

I know that the House will join me in paying tribute to Britain’s reserves. They make an important contribution to current operations, serving with dedication and commitment alongside our Regular Forces. As I speak, over 2,000 reservists are on operations in Afghanistan and Iraq on tasks ranging from fighting on the front line to force protection and medical support. This is

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8 per cent of our forces deployed. Reservists have served with distinction in all the conflicts that our forces have faced in recent times, from the Balkans to Sierra Leone. Eighteen thousand have deployed to operational theatres since 2003. Since then, 15 have made the ultimate sacrifice by giving their lives on our behalf. When I visit operational theatres, I never fail to be impressed by the men and women of our Reserve Forces who give up their time to serve their country.

But it is not only the Armed Forces that benefit from our reserves; society does, too. Individual reservists learn and develop leadership, problem-solving and confidence-building skills that make them more capable employees and citizens. And they make a crucial contribution in the United Kingdom, helping out in emergencies from foot and mouth to flooding and providing cover during the firemen’s strike.

The demands faced by our reservists have changed considerably. We are using them much more than we have before in peacetime. We need them to do more than simply prepare to defend the UK in the event of major conflict. We require them to augment our Regular Forces on expeditionary operations. Yet the structures, training and organisation of our Reserve Forces have not changed to match this and now need to be overhauled. We owe it to our reservists, their employers and their families to ensure that they are supported to face the challenges of today and the future, not the past.

People wrongly say that this is about tackling stretch by using the reserve to plug gaps in the Regular Forces. This is not the case. It is, in fact, about optimising the contribution of all elements of defence today and into the future. The reserves are an integral part of that and they are overwhelmingly keen to play a relevant role in current operations. That is why, last year, my right honourable friend the Member for Kilmarnock and Loudoun commissioned a strategic review of the reserves. As a result, the reserves have, for the first time in recent years, been subject to a review in their own right.

The review was conducted by a small team, led by Major-General Nicholas Cottam. It consulted openly throughout defence and beyond. It listened carefully to the views of the reserves community, including the Reserve Forces and cadets associations. General Cottam’s comprehensive review addressed all strategic aspects of reserve service. I am placing copies of it in the Library of the House today and on the MoD website. As one would expect from such careful analysis conducted over several months, it is very detailed. We have therefore produced a summary of the review, which will also be placed in the Library today. General Cottam confirms that this summary report accurately reflects his review. It also indicates how we shall take forward this important work.

General Cottam’s work offered seven strategic recommendations; I am pleased to announce that we are accepting all of them. They flow into more than 80 detailed recommendations. General Cottam was not asked to produce an implementation plan; his review was properly designed as strategic. Consequently, some of his detailed recommendations will require considerable further scoping work, taking account of resources and priorities across defence. This will make for difficult choices, but the review provides the solid

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foundation on which they can be made. I am, however, pleased to announce that around half of the recommendations will be implemented immediately.

The review has redefined the purpose of the UK reserves and notes that they provide defence with a cost-effective way of retaining certain specialised skills. It is precisely those niche capabilities and depth of personnel that are proving so invaluable to current operations. The review also acknowledges that reservists remain vital for supporting national resilience and recognises the very important role that they play in connecting the Armed Forces with the nation.


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