R Justice for Health Ltd v The Secretary of State for Health The NHS Confederation and Another (Interested Parties)

JurisdictionEngland & Wales
JudgeMr Justice Green
Judgment Date28 September 2016
Neutral Citation[2016] EWHC 2338 (Admin)
Docket NumberCase No: CO/2054/2016
CourtQueen's Bench Division (Administrative Court)
Date28 September 2016
Between:
The Queen on the application of Justice for Health Limited
Claimant
and
The Secretary of State for Health
Defendant

and

The NHS Confederation (1)
The British Medical Association (2)
Interested Parties

[2016] EWHC 2338 (Admin)

Before:

Mr Justice Green

Case No: CO/2054/2016

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Jenni Richards QC, David Lock QC, Benjamin Tankel and Saimo Chahal QC (Hon) (instructed by Bindmans LLP) for the Claimant

Clive Sheldon QC, Joseph Barrett and Ronnie Dennis (instructed by The Government Legal Department Solicitors) for the Defendant

Jason Coppel QC and Christopher Knight (instructed by Capsticks Solicitors) for the First Interested Party

Nadia Motraghi (instructed by Capital Law of Cardiff) for the Second Interested Party

Hearing dates: 19 th and 20 th September 2016

Approved Judgment

Mr Justice Green

A. Introduction, summary and conclusions

(i) The Claimant/the junior doctors

1

This case concerns a challenge by a group of junior doctors who object to the manner in which a new set of terms and conditions of employment are to be rolled out across the NHS. The expression "junior doctors" is a misnomer. It includes, in addition to doctors in training, hugely skilled clinicians and practitioners who routinely perform some of the most complex medical procedures, some of whom have many years of experience and are on the cusp of becoming consultants. The actual Claimant to this litigation however is a company which has been formed for the purpose of bringing this claim and representing the interests of the junior doctors who object to the new terms and conditions.

2

The issue of the proposed new contract generates strong feelings. Evidence before the Court demonstrates the level of disenchantment which many junior doctors feel about their working conditions within the NHS. Much of this sentiment is of a general nature and whilst undoubtedly heartfelt is not always of direct relevance to the quite specific legal issues that I have to decide. Nonetheless, it is important context to this case and I have endeavoured in the judgment to summarise the views of all sides to this issue.

3

In recording these views I emphasise that I am not expressing any sort of an opinion or conclusion on the competing arguments about the merits or otherwise of the new contract either as a whole package or as to its individual components and nor am I expressing any view as to the merits of the arguments over the "7-day NHS" which includes the issue of weekend mortality rates.

(ii) The three issues in the case

4

In this litigation the Claimant has identified three relatively specific points of law which I can summarise as follows.

5

First (Ground I), it is said that properly analysed the facts demonstrate that on 6 th July 2016 the Secretary of State adopted a decision that certain new terms and conditions would be imposed on all NHS employing bodies even though under the governing legislation, the National Health Service Act 2006 1 ("NHSA 2006"), the Minister had no lawful power or jurisdiction to impose such a contract, with the consequence that he exceeded his lawful powers and acted in an unlawful manner. The nub of the issue arises because after a lengthy period of negotiation between representative bodies of employers and employees, the BMA (for the doctors) ostensibly recommended acceptance of a set of terms and conditions to its members which the junior doctors members then rejected in a referendum by a strong majority of 58/42% on a turnout of

circa 68%. On 6 th July 2016 in the immediate aftermath of being informed of the outcome of the referendum the Secretary of State took a decision that the contract that the doctors had rejected should nonetheless be introduced. He then made a Statement to Parliament in which he set out his reasons for the "decision" he had taken earlier that same day to introduce the new terms and conditions without the agreement of the junior doctors. The "issue" here is whether the Secretary of State in his decision taken before he went to Parliament did in fact seek to impose new terms on employers (and thereby shut out the possibility for further negotiation) and the nature of his powers in relation to the approval or setting of terms and conditions of employment (bearing in mind that the NHS is in fact not a single body but a collection of different organisations, both public and private, and therefore comprises a variety of different employers)
6

Second (Ground II), it is argued that in any event (ie even if the Minister had the power to do what he did) the manner in which the relevant policy and decision was taken was so opaque and confused that it violated the principles of " transparency" and " good administration". These are important principles of public law and, in essence, require public bodies to formulate and apply policies in a clear, precise and transparent manner so that those subject to or affected by them know where they stand and can regulate their affairs accordingly. The principles are also important so that those affected by a decision that might be adverse to them can make representations to the decision maker before the decision is taken and/or know the reasons for the decision taken subsequently so that they can decide whether to challenge it in the courts. This issue arises if in fact on analysis the Secretary of State's Statement to Parliament on 6 th July 2016 conveyed a false impression and/or is inconsistent with his present position.

7

Third (Ground III), finally, it is argued that, irrespective of all other arguments, the decision adopted by the Secretary of State is unlawful because it is irrational and not based on adequate evidence. It is argued that the basis of the decision to introduce the new contract was the Conservative Manifesto commitment to introduce the "7-Day NHS" and was based upon the premise that the higher mortality rate which occurred across the NHS at weekends could be remedied by the new contracts. As to this it is said that the causal connection said to exist between the introduction of the contract and the prevention of avoidable mortality is not based upon any credible or adequate evidence and the decision of the Secretary of State to introduce the new contract without proper evidence is in consequence illogical, irrational and unlawful.

(iii) The need for full judicial review

8

Because this case has arisen at speed and has been granted expedition, technically, the hearing before me was a " rolled up" hearing which was to decide whether I should grant permission to the junior doctors to seek a judicial review and if I decided that permission should be granted then to arrive at a decision on the merits of the grounds of challenge. I indicated at the outset of the oral hearing that I had formed the view that the grounds advanced by the junior doctors were serious and properly arguable, raised important points of principle about the powers of the Secretary of State under the NHSA 2006 and as to the manner in which he should act in exercising those powers, and generally raised an issue of wider public importance. I have therefore proceeded to determine the case on its merits as a full judicial review.

(iv) Conclusions on the three grounds

9

In relation to the three grounds of challenge I have reached the following conclusions.

10

First in relation to Ground I, I have come to the conclusion that the Secretary of State adopted a decision on the 6 th July 2016 to approve the terms and conditions which the Minister considered had hitherto been approved by the BMA. The decision of approval did not, however, compel employers to apply the contract to their respective employees. The decision did, nonetheless, contemplate that the contract would be introduced without the collective agreement of the employees. The Secretary of State adopts the strong position that the contract should be introduced and he reserves the right to consider the exercise of powers of compulsion in the event that implementation is inconsistent or fragmentary and thereby threatens the pursuit of the objectives he seeks to achieve, which include the enhancement of a 7-day NHS. In coming to this conclusion I have considered substance over form; I have had regard to the terms of the Ministerial Statement of the 6 th July to Parliament read in the context of other documents which precede the Statement, are contemporaneous with it, and post-date the Statement including formal statements and evidence placed before the High Court. Further, I have concluded that the decision adopted by the Secretary of State fell squarely within the scope of his lawful powers under the NHSA 2006.

11

With regard to Ground II, I accept the submission of the Claimant that on the evidence the Statement made to Parliament on 6 th July did in fact lead the junior doctors to conclude that contrary to the reality, the Secretary of State intended to "impose" the new contract thereby excluding altogether any daylight for negotiation either with the Secretary of State or with employers. I accept that on the evidence employers understood the Statement as the Minister intended it to be understood but that was not the case for the doctors. However, shortly afterwards and essentially in the course of these expedited proceedings, the Secretary of State has formally provided elaboration and clarification of his decision and confirmed, inter alia, that he is not exercising compulsory powers and therefore, in principle, individual employers retain freedom of contract. This elaboration and...

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