Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

I beg to move amendment 1, in clause 1, page 1, line 7, leave out first ‘the’ and insert ‘any’.

Edward O'Hara (Knowsley South, Labour)

With this it will be convenient to discuss amendment 2, in clause 1, page 1, line 8, leave out from ‘State’ to end and insert

‘and approved by each House of Parliament’.

Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

Clause 1 effectively establishes the subject of the first chapter of the Bill, the NHS constitution. My two amendments are mutually reliant and make sense together, and I shall therefore seek to address both in one approach.

The amendments would change the initial phraseology to refer to “any” document and would remove the need to be date specific—they would remove the specificity from the Bill and seek to probe to some degree what the Government mean by this constitution. I hope, Mr. O’Hara, that you will give me a little latitude on these amendments as, I hope you agree, it will be useful for me to set out the questions of the constitution from this side of the House. That may enable us to move through later amendments more quickly. However, I will be guided by you to remain in order.

As the Committee goes through the Bill, time and again—as with so much Government legislation—we will meet regulations. The justification is always not to have too much detail in the Bill. How, therefore, does the Minister justify the specific reference to a document published on 21 January 2009? I hope that he will tell the Committee about analogous provisions in other legislation where a document is defined by its name and date but not its content.

The amendments also seek to reassert the power of the Houses of Parliament on the NHS constitution. When the Prime Minister launched his leadership bid, he said:

“One of my first acts as prime minister would be to restore power to Parliament in order to build

the trust of the British people in our democracy. Government must be more open and more accountable to Parliament”.

In his statement to the House last Wednesday, he said:

“we are removing ancient royal prerogatives and making the Executive more accountable to Parliament”.—[Official Report, 10 June 2009; Vol. 493, c. 797.]

He uses “we” and claims that the Executive are restoring power to Parliament, whereas that is, of course, a responsibility for the House.

The Prime Minister announced the review, which will be chaired by the Labour Chairman of the Public Administration Committee, the hon. Member for Cannock Chase (Dr. Wright). The review will consider how Parliament can strengthen its scrutiny of the Government and how control of Parliament’s daily business can be wrestled away from them and their Whips. Yet, the Government are bringing to the House legislation that enshrines something, the contents of which the House has no power over. In light of the claimed democratic accountability and the move to more open and transparent government, and particularly, taking into account the Government’s rhetoric on restoring power to Parliament, how can the Minister justify an undebated constitution? What has been published and put forward as a document is, effectively, a settled item.

Not only has Parliament had no opportunity to debate the contents of that constitution, but the constitution was launched in a closed signing ceremony at No. 10, where it was given legitimacy, if not force, by the hand of the Prime Minister—again, sidelining Parliament. Furthermore, if the amendment succeeds and the constitution gets the parliamentary debate that our NHS deserves and is amended as it should be, how will the Minister justify the cost of pulping all the documents that have been printed?

In addition, there is now an illogicality in the legislation. The Government rightly accepted the amendments put forward by my noble Friend Lord Howe in the other place that introduced clause 3(5). That means that the guiding principles of the constitution cannot be changed except by regulations made by the Secretary of State. However, if Parliament must be invoked to change the guiding principles—I argue that it should be—then surely it should be invoked to establish them. The precedent is dangerous, because, as I understand it, the Minister is saying, “What I say goes, and if you want to contradict me, you must change the law.” Where would we be if, for instance, Justice Ministers operated in a similar way? It might be right to debate this when we come to that clause, but will the Minister confirm that regulations made under clause 3(5) will be made under the negative resolution procedure? And will he tell us whether the Delegated Powers and Regulatory Reform Committee has advised on that power?

Government Back Benchers should not pass over that question lightly. They know that the guiding principles set out in the constitution are not the excellent principles of the NHS plan, which takes us back a good 10 years. Those are the principles that we have argued should be put forward as part of the constitution and which were implemented before the Prime Minister came up with his proposals.

If one compares the constitution with the principles in the NHS plan, the redaction of those principles was undertaken by the current Secretary of State for Health, who was a Health Minister back in 2006-07. Government  Members know that that redaction, which the current Secretary of State was instrumental in ensuring took place, removed the key principle that

“Public funds for healthcare will be devoted solely to NHS patients”.

Should Parliament not have a say in that?

At the heart of the amendments lies the question of what is a constitution. Is it something which, in regard to a public body, or even a body which predominantly serves the public—the statutes of universities and Royal Colleges come to mind—should have some statutory democratic oversight of its content, even through a body such as the Privy Council, although I have to confess that that example does not necessarily help my argument? Or is it simply a useful noun that can be put at the head of a piece of paper, so that the Government of the day can get some relatively easy headlines, but which remains ontologically meaningless?

The question is a moot one, given the Prime Minister’s statement last week that he favours a written constitution for the country. So what precedents will we set as a Committee if we say that this House is perfectly content with constitutions that are solely the product of the Executive rather than of the legislature? Lest anyone think that the comparison is spurious, at a little over 3,000 words this NHS constitution is three quarters of the length of the original US constitution. That comparison was made by none other than Lord Naseby in the other place.

Then there is the further question of precedent-setting, which is why these amendments are so fundamental to the whole tenor of this part of the Bill. The last time the Government included a document of constitutional importance in legislation without giving either House the opportunity to debate and amend it, the then Minister, the right hon. Member for Leicester, East (Keith Vaz), told the House that the document had all the legal force of The Beano. The document was the European charter of fundamental rights. In 2005, it became clear that it was being referred to by the European Court of Justice in its judgments, but it is not yet justiciable in England and Wales within our jurisdiction pertaining to that part of the law. The rulings of the European Court of Justice are legally binding on England and Wales, and in Scotland and Northern Ireland, and thus it bites. That document is part of the Lisbon treaty, which the Government keep reminding us that they support, but which they are not prepared to give the country a referendum to endorse.

Turning to justiciability, if the constitution is meant to have some real effect, then one might envisage that, initially, people would be encouraged, even excited, by the prospect. They now have a means by which they can seek to enforce rights on access to, and the quality and type of, healthcare. Even if it can be argued that it does not go that far, that it does not actually create entitlements and that what is in place is already enshrined in statute, there is an issue about whether this is going to give rise to justiciability for what is known in the law—the Minister is a highly-reputed, qualified lawyer, so he will understand the importance of this—as remedy in equity. That involves things such as injunctive relief and any of the other specific enforcement processes that are possible by way of reference.

Of course, there is a special species of legal action, which is particularly known to the public sector— the question of judicial review. That relates to whether the constitution and the way in which it has been framed in the legislation will give rise to the opportunity for litigants to pray it in aid in support of any kind of judicial review of ministerial or other public office decisions. That leads to the question whether there would be not only injunctive relief, but any kind of compensatory provision for those enforced to take action that they did not wish to take, or to have to correct an action or inaction that they have found was not part of the administrative process that they should have adopted.

Mike O'Brien (Minister of State (Health Services), Department of Health; North Warwickshire, Labour)

I want to be clear on the hon. Gentleman’s position. Is he saying the constitution should be fully justiciable or not?

Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

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.

Mike O'Brien (Minister of State (Health Services), Department of Health; North Warwickshire, Labour)

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.

Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

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.

Edward O'Hara (Knowsley South, Labour)

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.

Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

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, Liberal Democrat)

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.

Mike O'Brien (Minister of State (Health Services), Department of Health; North Warwickshire, Labour)

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.

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.

Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

I have not practised for 20 years.

Mike O'Brien (Minister of State (Health Services), Department of Health; North Warwickshire, Labour)

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.

Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

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.

Mike O'Brien (Minister of State (Health Services), Department of Health; North Warwickshire, Labour)

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.

Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

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?

Mike O'Brien (Minister of State (Health Services), Department of Health; North Warwickshire, Labour)

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.

Michael Penning (Shadow Minister, Health; Hemel Hempstead, Conservative)

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.

Mike O'Brien (Minister of State (Health Services), Department of Health; North Warwickshire, Labour)

In a sense, Parliament has already debated much of this, because if a legal cause of action arises as a result of a statute, Parliament will have passed that statute. All that the constitution does is, in effect, to declare the law that currently exists and bring it together in a clearer, more convenient way for the staff of the NHS, for those who contract with it and for patients.

Previously, such a measure did not exist; it is a declaratory document, saying what Parliament has already decided and what the courts have already decided by way of common law. It is therefore useful in itself and can be referred to in the courts, once the legislation is passed. However, we are not creating a whole series of new avenues in which the law can intrude. As for the question of whether Parliament needs to debate the measure, it is effectively doing so. On the issue of whether Parliament is pretending that this something which it is not, we have not sought to do so. We have made it clear that this is a declaratory document, setting out for those who use the NHS exactly what its constitution is.

There has been no sidelining of Parliament, which has a role in determining the legislation underpinning the constitution—that is, most of the principles as they are rooted in legislation, and each of the rights. In addition, Parliament has a role in approving any changes to the principles of the constitution. We listened to debates in the other place, and responded by obliging the Secretary of State to amend the principles via regulation. In doing so, we have ensured that no Government can change the guiding principles of the NHS without parliamentary scrutiny.

It is important to remember that the final constitution was not dreamt up in Whitehall; it is, as the hon. Member for Romsey has said, the result of extensive research and full consultation with patients, the public and NHS staff, and it reflects what matters to them. In summary, Parliament has already had a say on the legislation underpinning the constitution, and no changes to the principles that it sets out can be made without parliamentary approval. There are several provisions in the Bill obliging the Secretary of State to consult patients, staff and other affected bodies—that is, the people who have created this constitution—before any changes can be made.

I therefore hope that I have covered most of the points that have been raised, and I hope that the hon. Gentleman will withdraw his amendment. However, he asked, too, about clause 3(5), and I can confirm that the regulations to which it refers are subject to the negative resolution procedure. The Delegated Powers and Regulatory Reform Committee advised officials that it did not need to see the new power. I understand that that was because of the change made in the other place. It was agreed that it did not have to be referred at that stage, so it did not have to opine on it. I gather that the Delegated Powers and Regulatory Reform Committee was happy with the original drafting of the Bill, and did not express any concerns. Because of that concession in the other place, that is how the matter was dealt with.

The hon. Gentleman asked whether other Acts immediately came to mind as measures in which dates were set. I cannot think of another such measure, but I have explained why, the Bill gives clarity to later provisions. We refer to a particular series of reviews that need to take place, and it is useful to have the date in the legislation. He asked me to write to him about the word “secured”, and I am happy to do so.

Edward O'Hara (Knowsley South, Labour)

Order. Reference to later proposals is simply a reference and does not prejudice later debate.

Lynda Waltho (Stourbridge, Labour)

I wish to declare that my husband, Councillor Stephen Waltho, is a governing member of the Dudley Group of Hospitals NHS Trust.

Edward O'Hara (Knowsley South, Labour)

That is noted on the record.

John Horam (Orpington, Conservative)

I am interested to hear what the Minister said about the procedure and process that went into the formulation of the constitution published by the Secretary of State in January 2009. He explained that there had been a long process involving all kinds of stakeholders and so on. Did the resulting declaratory constitution, which he has explained, lead to no changes? Was it simply a clearer summary of the existing situation with no changes, or were there any revisions of words, thoughts or principles in the new constitution that were not in the existing legal situation?

If we were trying to get a clear summary of the situation, it would be surprising if there was no change at all in what had gone before. If there is any change that could be seen as a change by a lawyer—I am not a lawyer—even if it was only a subtle change or a change of emphasis rather than a change of fundamental principles, surely that would mean there would be a new element that might be justiciable. Is there a contradiction, therefore, given the Minister’s assertion that there is nothing new, and nothing that could be newly justiciable? That is unlikely to be the case if the result of this comprehensive process is that there will be some new perception of the arrangements for the National Health Service? Could he enlighten me on that point?

Mike O'Brien (Minister of State (Health Services), Department of Health; North Warwickshire, Labour)

I am happy to say that three new rights were set out clearly in the constitution as a result of the consultation. One was in relation to vaccines, another in relation to choice and another in relation to rational decisions on the funding of drugs. Each has directions and regulations underpinning it, so in effect other regulations and directions underpin those rights. As a result of the consultation, however, I am informed that the proposals were altered, and brought into the constitutional set-up so that they could become part of the way in which the NHS is run under the constitution. As a result of that consultation, yes, there were changes. The three changes I referred to were already in law but have now been brought into the constitution following the consultation.

The hon. Gentleman asks whether the creation of this new element—the constitution—creates a level of justiciability that did not previously exist. He suggests that surely it must. To some extent he is right, in the sense that it may be referred to in court, but I cannot guarantee to him that as a result of those references, some case law might not arise that draws a particular point from the constitutional document that has been referred to in a court case and which may not at some point, as a result of the operation of the common law and the courts, produce a new way of looking at the NHS and a new area of law. We do not know that. Any time we make legislation we are to some extent at the mercy of the judges to see how that legislation operates in practice. Parliament would have to look at the measure again in the future to see whether it approves of the way it has been dealt with.

The hon. Gentleman is right to some extent but not wholly right: yes, the document can be referred to and yes, it may lead to affecting the view of judges in a particular case. However, a new cause of action cannot arise as a result of this constitution, because it is based on causes of action that exist now. Anyone who brings a case now would have to have a cause of action that arises now. Under existing law, they would not get one merely from the constitution. However, when the matter goes to court, can it be referred to? Yes, it can, because it is in law. I hope that answers the points, but I am happy to give way.

John Horam (Orpington, Conservative)

My knowledge of the law is based on watching “Judge John Deed”, which may be unusual, although the series is rather interesting, as a matter of fact, and my wife thinks it is fantastic.

As a complete non-lawyer, I am still puzzled by the fact that something can be referred to in a case—presumably a lawyer refers to something because it helps his case, and is a point in its favour—and will be used and given some weight in the law courts, even though it may not be technically judiciable in the sense a lawyer might understand. It will none the less be used to some extent, which creates an area of uncertainty, as I think the Minister has admitted, that may in the future throw up case law that may well change the law. Is that the Minister’s understanding?

Mike O'Brien (Minister of State (Health Services), Department of Health; North Warwickshire, Labour)

I would not describe it as an area of uncertainty, in the sense that judges always say they merely declare the law as it exists, not as they might want it to be—unless they are the late Lord Denning. It is the case, however, that judges in practice have to look at new circumstances and the relation of the law to those new circumstances. Therefore, they will, in effect, create law, so whether or not that is an area of uncertainty, the whole aim of the law is to create certainty, so I dispute the hon. Gentleman’s wording. If he is asking whether this, at some stage in the future, could produce changes in the law and the way in which we look at the NHS, the answer is yes. Does it create a new area that could produce a case that could not be taken now? No. That is an important distinction, and probably his Front Benchers and the Government are broadly in the same place in terms of what we would like to see—that we have a constitution that is clear, which people can understand, which declares what their rights are, but does not create a lawyers’ charter enabling a whole series of new interventions by the law in the NHS that do not exist today.

Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

That last set of exchanges was particularly helpful, and was useful in setting the context to widen slightly our discussion beyond the immediate amendment, which is on the date-specificity of the document referred to in the proposed statute. The broader issue leads back to the judgment to be made on the amendment. The Minister has been very clear that it is the Government’s intent to be declaratory. In his last set of interactions with my hon. Friend the Member for Orpington, he talked about there not being an area of uncertainty, but in the way he described it, it does carry the area of possibility—as it might be referred to in legal proceedings—without creating new causes of action. I think I have understood him correctly in that analysis.

It may be some years before we go down this track, but in the course of any cases that come before the courts and in the precedent-setting, which is obviously in the nature of the law in this country under the common law, it will be interesting to see whether in a judgment—as both judges and legal academics look back on cases decided over the years with this law in place, in addition to all the other legislative provisions that give rise to the causes of action that, on the Minister’s analysis, pre-exist this piece of legislation—reference to the constitution in these legal provisions ends up being obiter dicta, not central to the decision made by the judge, or what is known in legal terms as ratio decidendi, a core stream of thinking that leads to the judgment and any remedy that is then imposed.

In many ways, we are discussing what may or may not turn out to be the legal journey that takes place from here. That is why the discussion has been important. We need to be absolutely clear that—even by the record of these proceedings—it will be possible to refer to this discussion were it to become important whether or not a new legal right has been created. It is clear that the Minister has asserted the Government’s position that the provision is intended to be declaratory and, therefore, is not intended to create new legal rights or causes of action. We must ensure that all that has been well heard and is on the record.

I remain concerned about the date specificity, although not because the Minister gave a particularly weak answer. His justification was that referring to a document by its date provided clarity. He could not immediately call to mind any other legislation that had taken that approach, although he said that it might have been done by reference to, say, a Command Paper. However, it strikes me that the difficulty is that if there is the potential for the provision to be something that is prayed in aid and referred to, it is extraordinary that, as a matter of reference, we do not continue to have a document that is referred to as an extant document of the constitution, which is what the cumulative attempt of the Bill intends to carry. Any extant NHS constitution, however, is not seen to have been something that has been approved by both Houses of Parliament. The two amendments go together—the substantive one is amendment 2—but to make the point emphatic, and to test the opinion of the House, I will be content to divide on just amendment 1, which is the first of the group.

Mike O'Brien (Minister of State (Health Services), Department of Health; North Warwickshire, Labour)

I am conscious of your strictures, Mr. O’Hara.