Clause 2
Health Bill [Lords]
4:00 pm

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

I beg to move amendment 3, in clause 2, page 1, line 16, after ‘Constitution’, insert ‘, Handbook, and Statement of Accountability’.

I am trying to multi-task by turning off my phone at the same time as I introduce amendment 3. This is a probing amendment to tease out the status of the handbook, particularly the statement of accountability. The amendment would ensure that NHS bodies have regard not only to the constitution, but to the handbook and statement of accountability.

Will the Minister explain why the statement of accountability is not in the Bill, when the handbook is? In purely legislative terms, that gives equal status to the handbook and the constitution and lesser status to the statement of accountability. If de jure the documents are of different value, conversely they seem to be de facto of the same value. The constitution cannot stand alone, which can only undermine it, because it needs the 148-page handbook and the 20-page statement of accountability to support it. Alternatively, the Minister might argue that the constitution is, in fact, superior to the handbook and the statement of accountability. If they are different, how is that so and why are they different from one another in that respect? Why has one but not the other been included in the Bill?

Furthermore, although paragraph 7 of the constitution states that

“the Government will ensure that there is always a clear and up-to-date statement of accountability for this purpose,”

there seems to be no legislative responsibility or mechanism for doing so. Why is that the case and how will it work?

Sandra Gidley (Romsey, Liberal Democrat)

I rise to support those points. One issue debated in the other place was that, in the handbook, there is a greater degree of information that is not available in the constitution itself. If one were to open the “Handbook to the NHS Constitution” at random, one might read:

“you have the right to make choices about your NHS care and to information to support these choices. The options available to you will develop over time and depend on your individual needs.”

However, when one looks at the explanation of what that means, a number of persons are excluded—for example, those detained under the Mental Health Act 1983, military personnel and prisoners. A number of services are also excluded. For some reason, maternity services are excluded, which is quite alarming, as are mental health services. That will be of concern to a number of people who may already have issues with the mental health services that they receive. That is a contentious area where service users sometimes have a different perception from health professionals regarding what treatment they might benefit from. I certainly support the amendment, because it seems that the handbook will be revised, and it would be much more useful if it were referred to in the legislation.

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

Amendment 3 would oblige those bodies that must have regard to the NHS constitution to also have regard to the handbook and the statement of accountability. The hon. Member for Eddisbury has indicated that he wants to know why one is in the Bill and the other is not.

It may help if I set out the purpose and intentions behind the handbook and the statement of accountability. The handbook is an explanatory guide designed for patients, members of the public and members of NHS staff. As the words in the constitution are necessarily at a high level, the handbook outlines in practice what each right, pledge and responsibility in the constitution means. In a sense, it is a description. That intent is clear in the introduction to the handbook, which states:

“this Handbook is designed to give NHS staff and patients all the information they need about the NHS Constitution for England.”

The handbook is not an instruction manual or guidance for the NHS. It does not create any new policy or law; it merely describes what currently exists; and it does not contain guidelines to which people must have regard. The handbook does not ask anything fundamentally different of NHS organisations. It merely sets out policy and law with which organisations should already be familiar.

For those reasons, it would be inappropriate to impose a duty for bodies to have regard to a patient and staff-facing explanatory guide. It is just a document for members of the public to glance at in order to get some idea of what the constitution means in practice, and no more. We would be somewhat concerned if some sort of legal effect were given to a handbook that can be rewritten from time to time.

Furthermore, imposing a duty to have regard to the handbook would create a case for a more formal process for updating it, such as a requirement to consult on any revisions, which might merely reflect current departmental policy or law. Strengthening the legal status of the handbook would make it a much less helpful guide for patients, the public and staff, as the process of making  minor or primarily technical amendments to it would become bureaucratic and time-consuming, potentially requiring extensive consultation. Essentially, what we are looking for in the handbook is something that can be amended whenever it needs to be and that will not have any legal force, but will just help the patient or NHS member of staff know what the constitution, to which bodies must have regard, is all about.

The statement of NHS accountability, on the other hand, was published alongside the constitution on 21 January as a response to last year’s consultation, in which we heard that patients and the public would find it helpful to know the system of responsibility and accountability for taking decisions in the NHS. We believe that it is vital that the public know how the NHS is accountable at a local level and how they can get involved. The statement of accountability is also a public-facing document and explains roles, responsibilities and accountability in the NHS. It is a short summary of the current structure and functions of the NHS in England. There would be little value in requiring NHS bodies to have regard to a factual document detailing the structure of the NHS.

For that reason, although it is permissible to refer to the documents in regulation, we do not want them to have any statutory force, be referred to during court cases or add a large amount of documentation to an NHS constitution that we want to be fairly straightforward. People will require some explanation. They will ask, “What does this mean?” or “What does this sentence in the constitution mean?” Therefore, we want to provide a handbook, but we do not want to give it a lot more weight than it needs. Giving it that extra weight would add complications, and the courts might then start to take a keener interest in it than we want them to. It is not for judges or lawyers; it is for patients and members of staff.

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

I am grateful to the Minister. He has tried to explain why the handbook is effectively a subsidiary operational document rather than a framework, strategic and standard document. I am also grateful for the support of the hon. Member for Romsey.

One thing that is easily recognised is that the Minister’s explanation is consonant with that of Lord Darzi, who said in his speech on the provisions in the other place that the handbook is “the explanatory guide”, which is exactly where the Minister arrived in the end after saying that it was not guidance or guidelines, to be used by patients, the public and staff. He went on to say:

“Similarly, the Secretary of State has the power to make minor and technical revisions to the handbook at any time in line with changes in departmental policy or law.”—[Official Report, House of Lords, 26 February 2009; Vol. 708, c. GC151.]

As I had seen that reference by Lord Darzi, I was concerned that due to changes to the law, there might have been a reference to say that that had legal effect. The Minister confirmed the negative just now—it is not intended for the handbook to have legal effect. The fact that we have had this exchange on the record is helpful.

Lord Darzi went on to say:

“We do not think that it would be proportionate to have to consult on such changes, and I think that most noble Lords agree. However, any significant changes to policy or law that affect the handbook are in themselves likely to trigger consultation requirements.”—[Official Report, House of Lords, 26 February 2009; Vol. 708, c. GC155.]

Patently, he must have had in his mind that consequential changes would come into the handbook as a result of changes to the law. I wanted to make sure that, given the way that it has been expressed in the other place, we do not have any confusion in the record that could have any potential legal effect. Unless I misinterpreted the Minister—I think that I have understood him accurately—it does not currently have legal effect and is not intended to do so. He has not intervened to correct me, and so, for the record, that has been cleared up. Therefore, I do not need to press the point. I beg to ask leave to withdraw the amendment.

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

I beg to move amendment 7, in clause 2, page 2, line 2, at end insert—

‘(a) the NHS board’.

Edward O'Hara (Knowsley South, Labour)

With this it will be convenient to discuss the following: amendment 8, in clause 2, page 2, line 8, at end insert—

‘(h) the National Institute for Health and Clinical Excellence’.

Amendment 164, in clause 2, page 2, line 8, at end insert—

‘(h) Children’s Trusts;

(i) Sure Start Centres;

(j) any other organisations providing NHS services.’.

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

Amendment 164 was tabled by the Liberal Democrats. I will make my few points before the hon. Member for Romsey catches your eye, Mr. O’Hara. Amendment 7 would put the NHS board as the first body that must have regard to the constitution. It seems wise that the NHS as a whole should adopt the constitution, rather than simply the bodies listed.

The Committee will be aware that Conservative Members favour the incorporation of an independent NHS board—incidentally, the Prime Minister also favoured that precise option when he was on the campaign trial for the Labour leadership just a couple of years ago. That approach would remove politicians from responsibility for the day-to-day running of the NHS, which, over the past 11 years, has inevitably led to many accusations of day-to-day politically inspired meddling, which we believe have stuck. The amendment is clearly consistent with the approach that we have taken to the architectural structure of the NHS, which we have published, and we very much hope to have a legislative opportunity to deliver that. There may be a need for the Minister to examine whether the bodies listed do not include something that encompasses the whole of the NHS.

While the phrase is “NHS services and those who are contracted to it”—we will deal with the question of contracted persons and subcontractors shortly—there is a question that the Minister touched on in discussing a previous group of amendments in relation to how that flows through to the sense of obligation and behaviour of NHS employees and the expectations and requirements of their conditions and terms of employment. The Minister has said that although he sees the NHS constitution as binding on institutional bodies, he does not see it as binding on individual employees. We need to be clear that there is a flow-through that is capable of affecting the way in which individuals in the NHS  behave, which will help the delivery of the constitution. Those bodies will therefore not be let down because their employees do not work within that spirit, let alone to the letter. Amendment 7 explores that area.

Amendment 8 would—importantly, I think—add the National Institute for Health and Clinical Excellence to the bodies that must have regard to the constitution. The amendment is an opportunity to explore the Government’s rationale for the list of bodies. None of the Department’s arm’s-length bodies are on the list, even though many of them have a huge impact on what NHS services are delivered to patients, and all of us know from our postbags know that none has a bigger influence than NICE.

The £195 million price tag on the NHS constitution is due to its impact on

“improving the timeliness of NICE guidance and increased uptake of NICE approved drugs”,

according to the impact assessment. Can the Minister explain how the constitution will deliver the assumed uptake of NICE-approved drugs and how the costings have been made? If that information is not to hand, I hope that he will give a commitment to make it available to all members of the Committee, so that we can return to the matter if we have an opportunity to do so.

It would also be interesting to know whether the parameters that NICE uses to make its cost-benefit assessments are compliant with the NHS core principles. As the Committee will know, the Government have consistently refused to published the so-called quality assisted life years formula, so there can be no independent corroboration of the assurance that I am about to seek from the Minister, but can he tell the Committee to what extent the QALY formula conforms to the principles set out in the NHS constitution? He will be under no misapprehension as to why that is a serious and important question.

Liberal Democrat amendment 164 adds children’s trusts, Sure Start and some other organisations to the list. I am grateful to the hon. Member for Romsey for picking up on a point raised by my hon. Friend the Member for Basingstoke (Mrs. Miller) on Second Reading. If the Department has neglected its own arm’s length bodies in relation to the constitution, as I described in relation to amendment 8, it is little surprise that it has neglected bodies that are overseen by the Department for Children, Schools and Families. What evidence can the Minister provide that his Department sought to break out of the silo of its departmental responsibilities, and that the Government really have looked across all Departments to make sure that the policy is not hindered by having a single departmental viewpoint?

Sandra Gidley (Romsey, Liberal Democrat)

The amendments provide a useful opportunity to probe whether the list of bodies in the Bill that must have regard to the constitution is sufficient.

Amendments 107 and 108 widen the remits. The point about arm’s length bodies is valid, because many organisations within the NHS that do not have direct patient contact are or should be responsible for driving forward quite a bit of change. We could perhaps include  a body such as the National Patient Safety Agency. It is not clear how such organisations fit into the wider picture. Some clarification would be useful.

The hon. Member for Eddisbury is quite correct: I was taken by the remarks made by the hon. Member for Basingstoke on Second Reading. She made some very good points. She said:

“The Apprenticeships, Skills, Children and Learning Bill establishes children’s trusts as statutory bodies that have an important, if not vital, role to play in the commissioning of services, including NHS services, for children in local communities.”—[Official Report, 8 June 2009; Vol. 493, c. 581.]

I cannot see the difference between a primary care trust and a children’s trust in that role, if they are both commissioning NHS services. The Minister made much earlier of the fact that there was almost a catch-all, because the PCTs would be commissioning services and those services would effectively be covered by the constitution. By extension, therefore, one could argue that services commissioned by a children’s trust would not be covered by the constitution. I find that slightly alarming. It could be that we are not doing as well for our children as we could.

Sure Start centres, although they do not commission services, have been a key part of delivering services to children, many of which are public health-related. I struggle to see why NHS trusts, which provide services, must have regard to the constitution, but Sure Start does not seem to have to. I am also unclear where organisations or establishments such as independent sector treatment centres fit. Clearly, they are delivering treatments paid for by the NHS, albeit under an independent banner, so it seems somewhat perverse that, apparently, they do not have to have regard to the constitution.

The amendments are designed to tease out a little more of the thinking and to seek reassurance that there are no parts of the health delivery service, or even the more strategic parts of the health service, that are falling through the gaps.

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

The amendments are interesting, and they do probe whether the NHS constitution reaches the parts that other constitutions do not reach. Amendments 7, 8 and 164 would place a duty on something called the NHS board, NICE, the children’s trusts, Sure Start centres and other organisations providing NHS services.

Turning first to the point about the obligations of NHS employees. I hoped that I had made this clear, but let me reiterate. An NHS employee does not have any new legal obligations as a result of the constitution. Boards will be in a position where they are required to comply with the constitution: they will have to have regard to it. An NHS employee will have the duties of an employee of an NHS trust or board, or whatever the organisation in the NHS is. As part of their contract of employment, they will have to deliver what they are obliged to do under that contract, but they do not, as individuals, acquire any new legal obligation under the constitution themselves. The board will and they are employees, therefore the board will have an obligation to ensure that they deliver the constitution. Were they to fail to do so, they would be dealt with in the normal manner as employees. It does not impose an additional duty on employees that does not exist today. I hope that makes the position very clear.

In relation to amendment 7, I need to point out that there is no such thing as an NHS board, so there is therefore no point in referencing one in the legislation. However, I understand that in their policy document the Conservative party have the objective of creating such an NHS board. They are getting a bit presumptuous—they think they are going to win the next general election. I say wait for the electorate’s opinion before proposing amendments that are supposed to take effect after the election. I suspect that the hon. Member for Eddisbury may find that the electorate will make their own mind up and he should not try to jump ahead. Let me be clear that I do not think that the amendment and that reference to the NHS board is necessary.

We do not want to have a broader, longer debate about greater operational independence for the NHS. Suffice it to say, however, that I do not agree that the NHS should be completely removed from any meaningful, democratic control. The NHS is responsible for spending more than £100 billion of taxpayers’ money every year. As long as policy and spending decisions are taken by democratically elected Ministers who are accountable to Parliament, there will be an obligation to subject their decisions to proper scrutiny. We believe that there must be a continuous thread of accountability through the system to the Government of the day and, through them, to Parliament.

The NHS needs a period of stability. We do not believe that now is the right time to impose further top-down changes to its structure. It is more important that there should always be clarity and transparency in the accountability of the NHS. The statement of NHS accountability published alongside the constitution will help to achieve that.

None of that is to say that the Government are in favour of centralising power in Whitehall. We have consistently demonstrated our commitment to a more devolved system: for example, through the establishment of NHS foundation trusts, through devolving commissioning responsibilities to PCTs and GP practices, and by looking at ways to put more control in the hands of patients, which we will discuss later under the proposals on direct payments.

Amendment 8 is unnecessary because NICE is already included. It is a special health authority and is therefore captured in subsection (2)(d). Our aim is to ensure that all organisations that are part of the NHS are obliged to take proper account of the NHS constitution. NICE will have that obligation. A number of special health authorities will be covered, including the National Patient Safety Agency, the NHS Blood and Transplant organisation and the NHS Litigation Authority.

The right to NICE-approved drugs articulates the existing legal duty on the NHS to provide such drugs when clinically appropriate. NICE will therefore be obliged to have regard to the constitution. NICE will also be obliged to ensure that QALYs, where they are used, are in compliance with the constitution.

Turning to amendment 164, I am aware that the Apprenticeships, Skills, Children and Learning Bill requires local authorities to establish children’s trust boards. I assume that the hon. Member for Romsey was referring to those bodies, rather than to children’s trusts. I assure her that we at the Department of Health are working  closely with colleagues in the Department for Children, Schools and Families to make children’s trust boards a success.

The hon. Lady’s interpretation of children’s trust boards is incorrect. Although they will become a statutory entity, subject to the approval of Parliament, they will be strategic bodies. Their only functions will be to prepare, publish, review and revise local children and young people’s plans and to monitor their implementation. They will not be involved in their delivery, which she suggested we should have regard to. Children’s trust boards will not hold budgets for commissioning, nor will they provide services, so it would not be appropriate to place them under a legal obligation to have regard to the NHS constitution.

Sure Start children’s centres will also be given a specific statutory basis through the Apprenticeships, Skills, Children and Learning Bill. However, like children’s trust boards, they will not be providers or commissioners of health services. It is important to be clear that children’s centres, as provided for in that Bill, are places where services are provided by a range of organisations. They are not bodies with an identity or functions separate from the organisations that provide those services. A legal duty will therefore not be placed on children’s centres.

It is the responsibility of the relevant local authority and its statutory partners, including primary care trusts, to ensure that children’s centres provide integrated services for young people and their parents. Of course, all providers of children’s NHS services, and primary care trusts as commissioners of children’s NHS services, are captured by clause 2. When a service is delivered by or for the NHS, it will be captured. However, organisations such as children’s trust boards and children’s centres are not to be subject to the constitution because they are not part of the NHS.

Finally, let me make it clear that clause 2 already captures any other organisations providing NHS services, either directly or through the commissioning functions of the NHS bodies listed in clause 2. I hope that hon. Members agree with me that in the absence of an NHS board—for the time being or otherwise—there is no need for amendment 7; that NICE is already captured by the clause and a duty on children’s trust boards and Sure Start children’s centres would be inappropriate. So I hope that they will withdraw their amendment.

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

I said at the outset that I was hoping to tease a number of things out of the Minister, and tease I certainly did. I slightly regret amendment 7 now, on the basis that it gave rise to an unsolicited party political broadcast on behalf of the Labour party, which I will not respond to because it would detain us too long, as I would like to have challenged almost every sentence. That said, I was only seeking to be helpful. It might be a very efficient way of providing the means to put an NHS board in place, should the contingency arise. We have had an opportunity to air that and I have no difficulty in begging to ask leave to withdraw amendment 7.

With regard to amendment 8, it was important to make sure that we understood that the special health authorities encompass the National Patient Safety Agency,  the NHS Blood and Transplant organisation and the NHS Litigation Authority, as well as NICE. I do not think that the Minister said that was the exclusive list. I assume he read those out as examples. It might be helpful to make a list available.

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

For the record, yes that is correct.

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

I am grateful to the Minister because it could be helpful to the Committee. I do not need to press this to a vote but it has helped to make sure there is clarity as to why those particular categories have been used in the Bill. It would be useful to have a list of the current special health authorities to know where we start and to have a baseline of information for the future. When anyone invents any other new bodies—NHS boards or otherwise—they will have to consider when drafting whether it is a special health authority or not.

I will wait to see whether the hon. Member for Romsey wishes to press amendment 164, but it was helpful to have that discussion. It was fascinating to hear the Minister say that the Government do not believe in any further top-down processes in the NHS, knowing that we are also totally against further unnecessary organisational change. It looks as though the NHS can take some comfort if those words are to be believed, and I regard him as someone who does not use his words lightly.

Most importantly, it is clear, at least from the Department of Health’s perspective, that the bodies referred to, such as the children’s trust bodies and Sure Start, are non-commissioning, non-provider bodies and are therefore strategic in nature rather than those that need to be brought within the ambit. It might be helpful to ensure a bit more cross-departmental discussion. My hon. Friend the Member for Basingstoke, with responsibilities relating to another Department, had been led to believe that there were to be some commissioning processes from these children’s trust bodies. She raised the point on Second Reading because she had been given the impression that that was to be the case. As they would have some commissioning responsibility they would potentially be in the place of a PCT with regard to some health services for children. As long as there is absolute clarity we do not need to bring them within the ambit. If there is no clarity, the Minister might want to reflect on that. In the light of those comments, I beg to ask leave to withdraw the amendment, and I am happy if the Liberal Democrat spokesman does not press her amendment.

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

I beg to move amendment 10, in clause 2, page 2, line 25, at end insert—

‘(5A) Each person who is sub-contracted by persons in sub-contracting arrangements under section (5) must, in delivering that contract, have regard to the NHS Constitution.’.

This is a probing amendment to investigate how far down the food chain the NHS constitution bites. In the Bill, any private or third sector organisation which contracts with the NHS must have regard to the constitution. Likewise, any body which they subcontract to

“provide or assist in providing”

must also have such regard. The amendment would require that any body subcontracted by a subcontractor would also have to have regard to the constitution. Amendments could be tabled to deliver a body subcontracted by a subcontractor’s subcontractor and so on, like Russian dolls ad infinitum, ad absurdum.

I hope that the Minister will take this opportunity to clarify how many iterations of subcontraction the provision affects. I assume that the main contractor takes an obligation to bind all those who are suppliers in a contractual chain—that the intention is to bind everyone to have regard to the constitution. I will leave him to have fun with the legal niceties of that one.

Can the Minister also clarify the wording

“provide or assist in providing”?

What, in terms of law, does it mean? Does it include a subcontractor named on the contract? Does it apply to every contractual relationship the contractor holds, whether it pertains to the NHS contract or not? I am not talking about common sense but about the force of the statute. For example, if a cleaning contractor fails to have  regard to the principles because their paper supplier fails to deliver, can the NHS constitution be brought to bite on the paper supplier?

I recognise from our earlier discussion that the clause is not intended to lead to new courses of action, but, when the Minister described the intended effect of the constitution on all those who supply services, he said that it was intended to bite. Indeed, that was precisely the word that the noble Lord Darzi used throughout his defence in the other place of the drafting of the Bill. If we are not talking about direct legal courses of action, we need to understand what is meant by “bite”, and how far it goes down the chain.

Can the Minister also provide some examples of joint contracting under subsection (8)? The fact that that provision is in the Bill seems to betoken that it has been thought through, because there must be a particular concern, opportunity or even mischief in mind. Furthermore, will the duty “to have regard” be inserted in all contracts that the NHS has with its contractors? Will the NHS mandate the insertion of the duty in all its contractors’ contracts? To some degree, that is the same point as the first one.

One issue that often comes up is that private sector providers to the NHS feel they cannot compete with, for example, the public sector pension fund, which makes the attraction and retention of staff difficult. I am yet to be convinced of that argument. I believe that the flexibility of the private sector usually allows it to suffer the differential on VAT happily, because its efficiencies amply recompense it for such difficulties. The question is whether the staff of private and third sector providers would have grounds to claim against their employer, using the constitutional right to the fair pay and contracts framework. Furthermore, will contractees have to warn the contractor of this duty before entering into a contract, or will they operate a tick-box exercise on the paper trail afterwards to show that they were “having regard to”, as we discussed earlier? We must also consider the argument of justiciability, and whether it should be inserted into contracts. What assessment has the Minister made of whether that will become a justiciable area in contract law? If the contractor fulfils his contract but fails to have regard to the constitution, is that now, or might it become, a ground for termination or some other form of contractual remedy?

The next point was raised earlier by the hon. Member for Romsey and then picked up by my hon. Friend the Member for Hemel Hempstead, particularly when he spoke about air ambulances. We need to cast our minds to clause 3(7), which raises the interesting question of the position of volunteers within the contracting and subcontracting organisations—and, indeed, within the NHS itself. I do not want to teach the Minister grammar or how to suck eggs, but he will be aware that there is no contractual basis for enforcement between two parties intending to create a legal relationship, if there is a failure of consideration for money or money’s worth.

With volunteers, there is by definition an absence of money or money’s worth. One could argue that some sort of time element might be of value, but the fact is that the time is given voluntarily and without the expectation of reward or compensation, which means that there is an absence of consideration. There is the question of whether it might be misleading to encompass volunteers within the term “staff”, which is how the Bill is currently  drafted. If so, there can be no ability to enforce—or, if that is too strong a word, to lay up the expectation that they should have had regard to the constitution. The last thing that we want to do is to create perverse incentives on volunteering, and I dare say that the Minister entirely shares that sentiment. I am sure that in all our constituencies we can find great examples of volunteers helping hospitals and other NHS facilities.

The amendment brings to light a further possible illogicality. It seems that foundation trusts are bound to have regard to the constitution only in respect of their NHS patients and not their private patients. To a degree, we have already discussed that matter. However, many people receive dental services under contractual arrangements made through general dental service contracts. Although the dentist will be a contractor under subsection (4), or possibly subsection (5), and thus be covered by the duty, patients increasingly pay for their services through Denplan. A private patient in hospital is not covered by the constitution, whereas a private patient in a dentist’s surgery is.

I make no argument for both or either, but the legislation should be consistent. Given the multiplicity of ways in which all of us, as citizens of the devolved countries of the United Kingdom, can gain access to primary care and other health services, we should have thought the matter through in a careful and detailed way with specific examples. I hope that the Minister understands the thinking that lies behind the amendment and that he will take the opportunity to assure us that these things have been thought through and are going to work.

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

Amendment 10 proposes that those persons providing NHS care that are subcontracted by a subcontractor must have regard to the constitution. I applaud the thoroughness of the hon. Member for Eddisbury in trying to ensure that we do not neglect the subcontractors of subcontractors, who are important people. However, the amendment is unnecessary, as subcontractors are already covered by subsection (5)(b), which states that each person who

“provides or assists in providing NHS services under sub-contracting arrangements”

must have regard to the constitution. That includes those who are assisting.

Andy Slaughter (Ealing, Acton and Shepherd's Bush, Labour)

On subcontractors, I wonder whether my right hon. and learned Friend can help me on the issue of telephone services. I know that the issue is fresh in his mind, because during the short adjournment he was engaged with one of my constituents, Mr. David Hickson, who is involved in an assiduous campaign against the use of 084 numbers. I will ask my question in two parts. First, is there any conflict between what the constitution states in relation to services being provided free of charge and the profit that is made either by NHS institutions or by the private providers of telephone numbers? Secondly, given that the widespread consultation, which may of course resolve the issue depending on the Department’s response, concluded on 31 March 2009, when does he expect the response to it? It highlights considerable disquiet about the use of 084 numbers in relation to NHS services.

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

My hon. Friend tempts me down the line of discussing 0845 numbers, 084 numbers and a number of other numbers. We could debate the issues at some length, but he is right to say that a consultation has been completed. We will shortly announce the outcome, but I do not have the date for that announcement. I hope to look at the issue in some detail in the near future, and I hope that we will then be able to announce how we intend to pursue it.

It is important to recognise that there are a number of areas in the NHS where organisations have the ability to not only provide services, but to jointly fund them through patients’ contributions; I gave the obvious example of prescription charges earlier. That is allowed within the terms of the constitution. Particular problems arise on telephone numbers, however, which I want to look at with a great deal of care. As my hon. Friend has said, a considerable degree of concern has been expressed by patients about the way in which certain premiums have been charged in relation to such numbers. If he bears with us, I hope that we will be able to deal with the issue at greater length.

Andy Slaughter (Ealing, Acton and Shepherd's Bush, Labour)

I thank the Minister for that. It would be helpful to know when he has an indication of when we can expect a departmental response to the consultation. By mentioning prescription charges, he tempts me to push the point on the constitution, which clearly notes

“the right to receive NHS services free of charge, apart from certain limited exceptions”.

Prescription charges are a clear example of that, but, as far as my constituents and I are aware, telephone services are not. Does he therefore agree that that inconsistency would be best addressed by not allowing the use of 084 numbers within the health service?

Edward O'Hara (Knowsley South, Labour)

Order. I have heard the hon. Gentleman’s point, but he is straying a little far from the terms of the amendment.

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

My hon. Friend is tempting me not only to stray from the amendment, but also to pre-brief people on the outcome of a consultation, which ought to be dealt with in a more appropriate way and announced at a more appropriate time. If he will forgive me, I will duck the question, valid as it is, and turn to amendment 10.

As we go, as the hon. Member for Eddisbury has described it, ad nauseam through the various ranks of subcontractors, it becomes, to use another legal term, somewhat otiose as to whether the constitution applies; it will at some stage become a matter for contract as to whether it does or not. To put volunteers’ minds at rest, where there is no contractual liability, tortious liability may arise, but that duty is normally imposed not on the individual volunteer, but on the trust itself. No new duty will arise that does not already exist in relation to volunteers. He is quite right that volunteers do an enormously important job for the NHS and, as a result of that, we do not wish to impose any new burden on them. In our view, the provision will not do so.

Bodies under a duty to have regard to the constitution must have regard to it when performing their commissioning functions. Therefore, whenever they contract with the NHS from a non-NHS organisation, we propose that  they will be legally obliged to ensure that the organisation acts in compliance with the constitution when providing services. We have chosen a deliberately broad approach to the duty to have regard to the constitution in order to avoid contracting being a way of getting around that duty. We want all those connected with the provision, regulation or commissioning of health services to have regard to the constitution and to uphold the values and ethos of the NHS.

In terms of the example given of the provision of paper supplies, the provision of NHS supplies will potentially bring into effect, as far as the person purchasing them is concerned, the NHS constitution, if they are otherwise covered by it. If someone is merely supplying a product from the private sector, they are not otherwise bound by the NHS constitution. As I have indicated, there are no new causes of action. When the hon. Gentleman asks “where does it bite?”, it bites where it bites already, but with a tiny bit of extra energy—no more than that. I do not want to be too deliberately opaque, but the aim, as I have said, is not to create a new cause of action.

As far as employees, fair pay and contractual obligations are concerned, we are not creating any new way in which negotiations on pay can be conducted. There is no new legal obligation. As far as subcontractors, and subcontractors of subcontractors, are concerned, it is entirely a matter for them to delineate in terms of their contracts. If they wish to take a particular view, that is a matter for them. The constitution imposes no new obligation on them.

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

I take the point about the volunteers and the duty of care under tortious liability, which is one that would always focus on an institution more quickly than it would on particular individuals, subject to an individual having an express or ostensible authority to commit a particular body in relation to its actions, which would be unusual. It would be pretty unusual for it to be given to a volunteer, although not impossible. I am happy to accept the reassurance on that, as indeed I was on fair pay.

As far as the paper suppliers example is concerned, what one needs to note rather than press is if the NHS employee—who is part of the process, whoever the employer body is within the NHS—has to have regard to the constitution, it is possible that through various contracting arrangements they might seek to impose conditions on the supplier to ensure that they themselves can conform to the expectations under the constitution. They can therefore help to demonstrate—perhaps through an audited paper trail that I suspect they will want to keep—that they have indeed had regard to the constitution and that they feel that they have complied with it. That is a possible way that the procurement contracts will flow through. I suspect that we will have to wait and see. That might be an actual example of the bite with a bit more energy rather than a greater cutting power, if one wants to take the analogy far too far.

As for the broad point made by the Minister on subcontractors, I can see that there is an intent, which I think that I am satisfied with. The approach taken to contractors, subcontractors and the chain of contracted supply is effectively intended to be an anti-avoidance measure, so that people cannot avoid having to have regard to the constitution. There is a genesis at the top  of the chain—someone who will be covered and intends to be covered by the Bill, once it is enacted. Following those reassurances, I beg to ask leave to withdraw the amendment.

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

I beg to move amendment 9, in clause 2, page 2, line 41, after ‘service’, insert

‘paid for out of public funds and’.

I do not think that this matter will detain us for long. The amendment would clarify the ambit of NHS services by including

“paid for out of public funds”

in the definition. That seems a much neater way of demarcating NHS services than the Bill’s entanglement with specific enactments, an issue which we covered earlier. I hope that the Minister will, of course, continue to support health care paid for out of public funds. As we have discussed, we have concerns about some of the issues where the core principles have been taken away from what was proposed by the Government. The Minister has sought to assure us that that is because those values are represented elsewhere. As he knows, we have not taken that to the nth degree, but there is still a concern. He might want to reflect on whether that particular area will need further discussion among the new ministerial team.

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

Section 1 of the NHS Act 2006, to which the clause refers, makes it absolutely clear that NHS services must be entirely free of charge subject to the conditions in relation to, for example, a contribution where prescription charges are involved. I do not see any need to repeat section 1 of the NHS Act 2006 now.

The hon. Gentleman may be concerned that the Government no longer believe that public funds should be devoted to NHS patients. That is not the case, as I explained in my responses to previous amendments. I will not repeat my points here. It is the case that NHS funds will be applied to NHS patients. That is the objective, the aim and the way in which we wish to proceed.

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

I was, of course, referring to section 1(3) of the NHS Act 2006, which was picked up by the Minister. In relation to the reference in the 2006 Act to

“the services so provided must be free of charge except in so far as the making and recovery of charges is expressly provided for by or under any enactment, whenever passed”,

it was my concern that we would end up with a chain of legislative provision that uses the phrase “any enactment”. I was concerned that we would end up with a series of pieces of legislation that would contain the phrase “any enactment” and then “under an enactment”. My point is that one has the grave danger of never specifying where the chain of legislative line follows. I shall not press the amendment to a Division, but the point has been made that we should be careful not simply to rely on the phrase “any enactment” or “enactments”, because it will become very vague to those who will succeed us over time.