UNISON, R (on the application of) v Secretary of State for Health [2010] EWHC 2655 (Admin)

Case No CO/8969/2010[2010] EWHC 2655 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 14 October 2010
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE MITTING
Between
THE QUEEN ON THE APPLICATION OF UNISONClaimantv
Between
THE SECRETARY OF STATE FOR HEALTHDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 0207 404 1424(Official Shorthand Writers to the Court)
Mr Michael Beloff QC and Mr David Lock (instructed by Leigh Day & Co) appeared for ClaimantMr James Eadie QC and Ms Catherine Callaghan (instructed by Department of Health, Legal Group) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE MITTING: 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.[2]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.[3]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.[4]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.[5]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.[6]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.[7]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.[8]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.[9]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."
[10]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.[11]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.[12]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."
[13]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.[14]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."
[15]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).[16]Maurice Kay and Rimer LJJ, on this issue expressing by a majority the reasoning of the court which supported its decision to refuse relief, put the issue as one of principle, not of practicality, per Maurice Kay LJ at paragraph 58:
"However, as a matter of principle, I consider that where Parliament has conferred a rule-making power on a Minister of the Crown, without including an express duty to consult, but subject to a Parliamentary control mechanism such as the negative resolution procedure, it is not generally for the courts to superimpose additional procedural safeguards."
And per Rimer LJ at paragraph 65:
"I respectfully prefer and agree with the views expressed by Maurice Kay LJ. The practical difficulties that have led Sedley LJ, on his own approach, to reject any duty of consultation in the present case provide in my judgment a compelling inference that the real explanation as to why appellants are not entitled to succeed on the consultation issue is that it is simply no part of the scheme of section 3 that there should be any consultation; and if that is the legislature's scheme, it is not for the courts to re-write it."
[17]In the case of the Immigration Rules and secondary legislation, primary legislation lays down the procedure for scrutinising and "consulting on" proposed changes, orders and regulations. No statute provides for any method of scrutinising or consulting on primarily legislation. This is unsurprising. It is the standing orders of Parliament which provide the means of doing so. It is just as illegitimate to attempt to superimpose on Parliamentary standing orders judge-made requirements for external or prior consultation, as it is to impose such requirements when Immigration Rules or secondary legislation are to be considered by Parliament. This formed the starting point for Sedley LJ's consideration of the position in relation to Immigration Rules in BAPIO. At paragraph 34, having cited Megarry J's observations in Bates v Lord Hailsham [1972] 1 WLR 1373, he said this:
"What he says about primary legislation of course holds true: the preparation of Bills and the enactment of statutes carry no justiciable obligations of fairness to those affected or to the public at large. The controls are administrative and political."
[18]For those reasons, in addition to the need for judicial restraint already referred to, I hold that, irrespective of the facts to which I will turn in a moment, the Secretary of State is not under any duty to consult on the principle of proposed changes to the National Health Service before introducing legislation to Parliament.[19]I believe that my reasoning is not inconsistent with the decision of Sullivan J (as he then was) in Greenpeace v the Secretary of State for Trade and Industry [2007] EWHC 311 Admin. He quashed a decision to support nuclear new build as part of the United Kingdom's future electricity generating mix on the ground that something had gone clearly and radically wrong with the consultation required by a 2003 White Paper which preceded the decision. The decision would simply, by having been made, have a significant impact on the outcome of planning inquiries into applications for planning permission for new nuclear power stations (see paragraph 53). Although the decision would be subject to Parliamentary scrutiny and was a high-level political decision, it was not (or not necessarily) the precursor to legislation and, as I have indicated, would have an immediate and practical effect on decision-making. That, in my judgment, is the critical difference between the circumstances considered by Sullivan J and those obtaining here. Here, the Secretary of State's decision is not just a precursor to the introduction of litigation to Parliament; it announces it.[20]If the doctrine of legitimate expectation were not circumscribed by the factors which I have identified above, I would have to consider Unison's claim on a conventional legal basis, namely that already cited from Sedley LJ's judgment in Bhatt Murphy at paragraph 29. In circumstances in which a change of policy is to be effected by the introduction of legislation to Parliament, that proposition requires further refinement. The assurance given by the public authority, inevitably a central Government minister, must have been that he would give notice to or consult with interested persons before introducing legislation to Parliament. It is difficult to conceive of circumstances in which such an assurance might be given. It would amount to a promise to give notice to or consult with interest groups before introducing a Bill and/or secondary legislation to Parliament in the general interest. No such assurance was given by the Secretary of State or his predecessors by any of the means identified for the purpose of these proceedings by Unison.[21]The first document on which they rely is one entitled "Partnership agreement" made in March 2007 and replacing and modifying an agreement which had been in existence in some form since 1998. The agreement has features common to documents which are known by the parties not to be legally enforceable as a contract -- aspirational and imprecise language. The passages relied on are as follows in the forward by the then Secretary of State:
"This partnership agreement outlines how partners will work together to promote effective partnership working on the workforce implications of policy."
[22]The text of the agreement contains the following:
"1. Introduction This Partnership Agreement sets out a framework agreed by the Department of Health NHS Employers and NHS Trade Unions. It describes the principles of partnership, processes and structures which are linked to the partners’ shared goals and objectives. It outlines how the partners will work together to promote effective partnership working on the workforce implications of policy and sets out agreed working arrangements for the revised Social Partnership Forum (SPF). 2. Aims of the Social Partnership Forum The SPF will be a partnership which is used to discuss, debate and involve partners in the development and implementation of the workforce implications of policy. In particular it will: • contribute trade union and employer perspectives to the development of policy • provide constructive comments on emerging policy at a formative stage • contribute ideas on the workforce implications of developing policy and implementation • promote effective communications between partners. 3. Roles and Responsibilities To enable effective operation of these partnership arrangements, all parties agree to recognise and respect each other’s roles and functions which are distinct but complementary. In particular, this agreement recognises explicitly that: • Ministers are democratically elected and have formal responsibility for developing and implementing public policy through the Department of Health • Trade Unions have a responsibility to represent and act in the interests of their members • NHS Employers has a responsibility to represent the views of its members (individual NHS employers) • other stakeholders will also have legitimate views that Ministers and policy developers will need to consider and take into account. ... 5. Principles for Effective Joint Working To deliver partnership working successfully it is important to develop good formal and informal working relations that build trust and share responsibility, whilst respecting difference. To facilitate this, all parties commit to adopt the following principles in their dealings with each other: • building trust and a mutual respect for each other’s roles and responsibilities • openness, honesty and transparency in communications • top level commitment • a positive and constructive approach • commitment to work with and learn from each other • early discussion of emerging issues and maintaining dialogue on policy and priorities • commitment to ensuring high quality outcomes • where appropriate, confidentiality and agreed external positions • making the best use of resources • ensuring a no surprises culture. ... 7. Working Arrangements at National, Regional (SHA) and Local Level i) National Level ... The Social Partnership Forum (SPF) underpins the NSF and is a tri-partite partnership model between the Department of Health, national Trade Unions and NHS Employers which is used to discuss, debate and involve partners in the development and implementation of the workforce implications of policy."
[23]The agreement, although not legally binding, has been acted upon and put into effect in practice by the parties, as Karen Jennings, Unison's National Secretary for Health explains in her witness statement at paragraphs 29 to 30:
"29. I also confirm that the SPF has worked in practice over recent years in accordance with the agreement. There have been a large number of occasions when Government ministers have come to the SPF to discuss proposed policy changes and to seek our views. This was normally in advance of formal consultation on the proposals but has sometimes been in relation to matters where decisions were made without consultation. Members of the SPF provided their views to ministers in a variety of ways. Sometimes we would give them a view directly around the table on the occasion when the issues were raised. On other occasions we would make discrete inquiries and come back to ministers to set out our views after a period of reflection. 30. There were also occasions when we discussed something and, as a result of our input, ministers agreed that further work was required to be done on a draft policy before it could be taken any further. By way of example I refer to the work we did around the "staff passport"
. This was guidance issued by the Department of Health to explain to staff moving from one NHS body to another how their rights were changed and which rights they could expect to be maintained as they moved organisations. Pages 199a to 199i are an example of a travelling document which went back and forth between the Department and the staff side to make sure that the Government guidance, once it was issued, had full input from both the employers and staff side of the SPF."[24]Her evidence and example demonstrate what the purpose and scope of the agreement was: to discuss and attempt to reach agreement about details of policies which affected National Health Service staff conditions, not to consult in advance about changes in the structure of the National Health Service to be effected by primary and secondary legislation. It may be that Unison hoped that that would be the effect, but nothing in the agreement on its plain wording leads to that conclusion. The wording of the agreement does not clearly state that consultation with "partners" would be required before legislation could be proposed by the Secretary of State.[25]In the light of that conclusion, as well as my primary conclusions, it is unnecessary for me to decide whether the Secretary of State has, as Unison asserts, affirmed the partnership agreement or, as Mr Eadie QC for the Secretary of State submitted, is not bound by it because it is simply a political agreement of no enduring consequence for Government.[26]The second document relied on is the NHS Constitution. This was introduced by Part 1 of the Health Act 2009. Section 1 defined what it was, a document published by the Secretary of State on 21 January 2009 (or a revised version of it). Section 2 imposed a statutory duty on certain bodies to have regard to it. "(1) Each of the bodies listed in subsection (2) must, in performing its NHS functions, have regard to the NHS Constitution. (2) The bodies are—(a) Strategic Health Authorities;(b) Primary Care Trusts;(c) National Health Service trusts;(d) Special Health Authorities;(e) NHS foundation trusts;(f) the Independent Regulator of NHS Foundation Trusts;(g) the Care Quality Commission. (3) In subsection (1) an “NHS function” means any function under an enactment which is a function concerned with, or connected to, the provision, commissioning or regulation of NHS services. (4) Each person who— (a) provides NHS services under a contract, agreement or arrangements made under or by virtue of an enactment listed in subsection (6), or (b) provides or assists in providing NHS services under arrangements under section 12(1) of the National Health Service Act 2006, must, in doing so, have regard to the NHS Constitution."[27]The only duty imposed on the Secretary of State was that imposed by section 3:
"(1) The Secretary of State must ensure that the NHS Constitution continues to be available to patients, staff and members of the public. (2) At least once in any period of 10 years the Secretary of State must carry out a review of the NHS Constitution (referred to in this Chapter as a “10 year review”)."
[28]The statute therefore only imposes the obligation to have regard to the NHS Constitution upon the bodies listed in section 2. The Constitution itself opens with a declaration which is, in one significant respect, neither required nor authorised by the statute. After referring to the obligation to renew the Constitution every ten years and to renew the handbook every three years, setting out current guidance, the preamble states:
"These requirements for renewal are legally binding"
. That is true. What follows is not: "They guarantee that the principles and values which underpin the NHS are subject to regular review and recommitment; and that any government which seeks to alter the principles or values of the NHS, or the rights, pledges, duties and responsibilities set out in this Constitution, will have to engage in a full and transparent debate with the public, patients and staff." (My underlining) There is no warrant for that in the authorising statute.[29]Part 1 sets out, uncontroversially, the seven principles which guide the NHS. Part 2a sets out the rights of patients and the public. On the fourth page of such rights, the following appears:
"You have the right to be involved, directly or through representatives, in planning of healthcare services, the development and consideration of proposals, the changes in the way those services are provided, and in decisions to be made affecting the operation of those services."
[30]Mr Beloff submits that if those rights are to be effective in relation to consideration of proposals for changes in the way healthcare services are to be provided et cetera, made by the Secretary of State, then the Secretary of State must be bound by the same obligations as are in terms imposed on NHS bodies by section 2.[31]That is true, but the simple answer is that he is not so bound. His only statutory duties are those set out in section 3, which I have already cited. Nothing in the National Health Service Constitution imposes an obligation of the kind for which Unison contends in these proceedings.[32]The next provision relied on is section 242 of the National Health Service Act 2006, which provides:
"(1) This section applies to- (a) relevant English bodies ... (1A) In this section- "relevant English body" means- (a) a Strategic Health Authority, (b) a Primary Care Trust, (c) an NHS Trust... (d) an NHS foundation trust. ... (1B) Each relevant English body must make arrangements, as respects health services for which it is responsible, which secure that users of those services, whether directly or through representatives, are involved (whether by being consulted or provided with information, or in other ways) in- (a) the planning of the provision of those services, (b) the development and consideration of proposals for changes in the way those services are provided, and (c) the decisions to be made by that body affecting the operation of those services."
[33]This imposes no duty on the Secretary of State, as was explained by Moses LJ in Fudge v South West Strategic Health Authority [2007] EWCA Civ 803 at paragraph 31 in relation to similarly but not identically worded provisions in section 11 of the Health and Social Care Act 2001.[34]Mr Beloff submits that the decision of the Secretary of State to introduce to Parliament a Health Bill without being open to consultation on the principle of change will prevent NHS bodies from fulfilling their duty of involvement. It will not. Involvement, as the section makes clear, can be achieved by informing as well as by consulting those affected by proposals. In any event, the Secretary of State has not purported to, nor has he, prevented NHS bodies from undertaking whatever they consider to be required by way of involvement pursuant to section 242.[35]In the claim and in the opening skeleton argument, Unison also relied on the wording of the White Paper, which, it was contended, held out the promise of consultation, not only on detail and implementation, but also on principle. The short answer to that proposition was that, on a fair reading, it did not, and that point has now been abandoned.[36]The final challenge is a rationality challenge to the nature and scope of the consultation actually afforded. Mr Beloff submits, in my judgment entirely correctly, that the boundary between detailed implementation and principle is ill-defined, as is perhaps demonstrated by the responses of those consulted, some of whom had included observations on principle as well as on detail and implementation. It is just about possible to envisage that, if the issue were to be justiciable, a challenge by way of judicial review proceedings might be mounted. I do not encourage such a challenge. As I indicated, I regard the possibility as no more than that. But if in consequence of the ill-defined boundary of the consultation actually afforded the Secretary of State were to reach an erroneous conclusion, and his conclusion were to be justiciable, which I doubt, then a judicial review challenge might lie. But until and unless that occurs, the Secretary of State is entitled to define the extent of the consultation which he affords to those who will be affected by his proposals.[37]For those reasons, this claim is refused.[38]Are there any consequential matters?[39]MS CALLAGHAN: My Lord, the Secretary of State seeks his costs of these proceedings.

MR JUSTICE MITTING: Mr Lock?

[41]MR LOCK: My Lord, there is not a lot I can say in response to that. I do not seek permission to appeal.[42]MR JUSTICE MITTING: The claimant will pay the Secretary of State's costs, to be the subject of detailed assessment on the standard basis if not agreed.[43]Thank you for your assistance this afternoon, and through you may I thank your leaders for interesting and, as always, well focused arguments.[44]MS CALLAGHAN: My Lord, one final matter, can I check that there will be a transcript provided at public expense?[45]MR JUSTICE MITTING: Whoever wants a transcript can have it, of course, but I think in the usual way they have to pay for it. Normally such a request is made by impecunious litigants who wish to take the matter further.[46]MS CALLAGHAN: My Lord, I am grateful.

Cited in 11 later judgments

and 2 more of the most senior