R (AFP Unison) v Secretary of State for Health
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MITTING |
| Judgment Date | 14 October 2010 |
| Neutral Citation | [2010] EWHC 2655 (Admin) |
| Docket Number | CO/8969/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 October 2010 |
[2010] EWHC 2655 (Admin)
Before: Mr Justice Mitting
CO/8969/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Mr Michael Beloff QC and Mr David Lock (instructed by Leigh Day & Co) appeared on behalf of the Claimant
Mr James Eadie QC and Ms Catherine Callaghan (instructed by Department of Health, Legal Group) appeared on behalf of the Defendant
(As Approved)
: On 12 July 2010, the Secretary of State for Health presented to Parliament a White Paper entitled “Equity and Excellence: Liberating the National Health Service”. It set out the Secretary of State's intention to introduce legislation in this Parliament to effect a radical reorganisation of the NHS.
Current arrangements are established or continued by the National Health Service Act 2006 and regulations made and directions given under it. In the barest of outline, the Secretary of State and the Department of Health are at the apex of a pyramid. Below them are ten strategic health authorities. Below them are 152 Primary Care Trusts. The Primary Care Trusts are primarily responsible for commissioning the provision of health services and for providing some of them. Most hospitals which provide hospital services are NHS trusts or foundation trusts. The Secretary of State is of the view that the current structure permits more interference than is desirable by the Secretary of State and the Department of Health in decisions which should be made locally and by clinicians, and requires the employment of too many managerial staff.
The principal changes proposed in the White Paper are: (1) the abolition of Primary Care Trusts and Strategic Health Authorities; (2) entrusting commissioning to consortia of general practitioners under the overall oversight of a new independent central agency, the NHS Commissioning Board; (3) requiring all National Health Service hospitals to become foundation trusts.
It is obvious that the proposed changes, if implemented, will have significant consequences for many of those now employed in the National Health Service. The claimant, Unison, represents 430,000 of them. By these proceedings it seeks to challenge a significant decision contained in the White Paper—the Secretary of State's decision not to consult others, including Unison, on the principle of the proposed changes.
The Secretary of State has invited responses to the White Paper on issues of detail and implementation only. He has received many replies, both on those issues and also on the principle. Unison has sufficient interest in the decision to permit a challenge to be mounted by it. The challenge raises issues of importance to its members and others, and an issue of wider importance not so far determined by case law. Its challenge deserves to be heard. I therefore grant permission for it.
Unison challenges the decision on the ground that it is unlawful because it and others have an unfulfilled legitimate expectation that they will be consulted on the principle of the changes before any legislation is introduced to Parliament or other decisions taken to facilitate their implementation. Unison disavows any challenge in these proceedings to the general merits of the proposals. It also does not assert that the Secretary of State was under a duty arising only from the nature and magnitude of the proposed changes to consult those affected. It founds its challenge squarely on statements made in documents issued by the Secretary of State for Health, some under parliamentary authority which, it claims, give rise to the expectation on which it relies. Its challenge is therefore founded on the particular circumstances of the case, but it gives rise to a general proposition of some importance, which I must address first.
To effect the changes, the Secretary of State will have to persuade Parliament to repeal large parts of the National Health Service Act 2006 and to revoke a raft of secondary legislation approved under it. The White Paper states as much: changes are to be introduced by a Health Bill presented to Parliament this autumn. The intention to introduce such a Bill was announced in the Queen's Speech.
Unison disavows any intention to delay the presentation of the Bill to Parliament. But if its challenge succeeds, that would now be the unavoidable, or at least highly likely, consequence. Because its challenge has the potential to encroach upon the as yet unannounced timetable for introduction of a Bill to Parliament, it is necessary to consider at the outset what, if any, limits there may be on the scope of judicial review in relation to Parliamentary proceedings.
The ground rules are not controversial. The courts cannot question the legitimacy of an Act of Parliament or the means by which its enactment was procured: see British Railways Board v Pickin [1974] AC 765, and as to proceedings in Parliament, Article 9 of the Bill of Rights). Nor may they require a bill to be laid before Parliament: see Wheeler v Office of the Prime Minister and others [2008] EWHC 1409 Admin, paragraph 49:
“In our judgment, it is clear that the introduction of a Bill into Parliament forms part of the proceedings within Parliament. It is governed by the Standing Orders of the House of Commons (see, in particular, standing order 57(1)). It is done by a Member of Parliament in his capacity as such, not in any capacity he may have as a Secretary of State or other member of the government. Prebble (cited above) supports the view that the introduction of legislation into Parliament forms part the legislative process protected by Parliamentary privilege. To order the defendants to introduce a Bill into Parliament would therefore be to order them to do an act within Parliament in their capacity as Members of Parliament and would plainly be to trespass impermissibly on the province of Parliament.”
The converse must also be true. The courts cannot forbid a Member of Parliament from introducing a Bill. To do so would be just as much an interference with Parliamentary proceedings as to require the introduction of a Bill.
The Unison challenge is not so blunt, but if successful it would require the Secretary of State to defer or delay introducing the Health Bill until he had consulted on its principle. Any court ordered prohibition would be conditional, but it would nevertheless be a prohibition. I consider that it would go against the restraint exercised by the judiciary in relation to Parliamentary functions, for the reasons explained by Sir John Donaldson MR in Her Majesty's Treasury v Smedley [1985] QB 657 at 666C to E. For that reason alone, I would decline to make a prohibitory or mandatory order which in any way inhibited the Secretary of State from introducing legislation to Parliament at a time and of a nature of his choosing.
There is a further reason why this challenge cannot, as a matter of principle, succeed. The claim is founded on legitimate expectation. Mr Beloff QC submits that the case is a paradigm case, as explained by Sedley LJ in Bhatt Murphy v the Independent Assessor [2008] EWCA Civ 755 at paragraph 29:
“The paradigm case arises where a public authority has provided an unequivocal assurance, whether by means of an express promise or an established practice, that it will give notice or embark upon consultation before it changes an existing substantive policy.”
There are two difficulties with his submission on the facts of this case: (1) the subject matter of the claim and expectation places it squarely in the realm of politics and not of the courts; (2) there is an established means of giving consideration to different views about the merits of the proposals - the passage of the Bill through Parliament.
As to (1), the facts are indistinguishable in principle from those considered in Wheeler, and my answer is the same as that given by the Divisional Court at paragraph 41:
“Even if we had accepted that the relevant ministerial statements had the effect of a promise to hold a referendum in respect of the Lisbon Treaty, such a promise would not in our view give rise to a legitimate expectation enforceable in public law, such that the courts could intervene to prevent the expectation being defeated by a change of mind concerning the holding of a referendum. The subject-matter, nature and context of a promise of this kind place it in the realm of politics, not of the courts, and the question whether the government should be held to such a promise is a political rather than a legal matter. In particular, in this case the decision on the holding of a referendum lay with Parliament, and it was for Parliament to decide whether the government should be held to any promise previously made.”
As to (2), the issue has not arisen in precisely the form here proposed before, but a closely analogous situation was considered by the Court of Appeal in BAPIO Action Limited v the Secretary of State for the Home Department [2007] EWCA Civ 1139. Section 3 of the Immigration Act 1971 provides a means by which changes to the Immigration Rules could be subjected to scrutiny and approval - by laying them before Parliament. The claimant complained about the absence of consultation prior to that occurring. Sedley LJ said that he could envisage the evolution of a duty to consult in such circumstances, but that practical considerations dictated that, if such a duty were to be introduced, it should be done by Parliament (see paragraph 45).
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