Health secretary performs 'legal acrobatics' to defeat junior doctors' claim

Last-minute 'legal acrobatics' from the secretary of state for health has brought an end to the judicial review of controversial new employment contracts for junior doctors.

The legal challenge, brought by Justice for Health, claimed the health secretary, Jeremy Hunt, had exceeded his powers after telling parliament in July that he would 'impose' the new contract on junior doctors.

The five frontline medics who make up the group also argued that Hunt had not properly consulted on the contract with the relevant parties and that his 'decision' was 'legally flawed, unreasonable, and not rational' and would not achieve the desired effect of a seven-day NHS.

However, handing down a written judgment in the High Court, Mr Justice Green rejected all three arguments. The decision followed an eleventh-hour submission by Hunt's legal team that stated the minister was not imposing the new contracts, but merely 'recommending' NHS trusts adopt them.

Clive Sheldon QC, representing Hunt, said the health secretary had not decided to 'compel' NHS trusts to use the divisive new contract. Instead, he had simply approved it.

Accepting this argument, the judge further said he could 'not accept the claimant's argument that the evidence base upon which the minister acted was inadequate'.

'One significant consequence of this litigation therefore has been that the secretary of state has, properly and reasonably, taken the opportunity to put his position beyond doubt. Without granting declarations I can nonetheless, formally, record the position of the secretary of state as articulated in these proceedings,' said Green J.

'First, the secretary of state does not purport to exercise any statutory power that he may have to compel employers within the NHS to introduce the proposed terms and conditions. Second, he acknowledges, therefore, that in principle individual employers are free to negotiate different terms with employees'¦'

On the question of whether the health secretary had misled parliament, Hunt's legal team argued he could not be held accountable for remarks made in the 'rough and tumble and hurly burly of parliamentary debate'.

Jenni Richards QC, for Justice for Health, likened this argument to the minister donning a Harry Potter 'invisibility cloak'.

However, Green J remarked that 'there is no lack of clarity or transparency' and also ruled that 'nothing in this part of the judgment is to be taken as even a hint or suggestion that the minister misled parliament'.

The High Court judge also said 'the grounds advanced by junior doctors were serious and properly arguable, raised important points of principle about the powers of the [secretary of state] under the [National Health Service Act 2006] and as to the manner in which he should act in exercising those powers, and generally raised an issue of wider public importance'.

Responding to the judgment, Dr Marie-Estella McVeigh, a member of Justice for Health, said: 'In last-minute legal acrobatics, judicial proceedings have forced health secretary Jeremy Hunt to clarify his legal position: he is not imposing the junior doctors' contract and never was.'

'Our health secretary was willing to continue to mislead, to allow walkouts, disruption, and uncertainty, until the very moment his job was on the line in front of a judge. This speaks volumes,' added Dr Amar Mashru.

A Department of Health spokesperson said: 'We welcome this clear decision by the judge that the Secretary of State acted entirely lawfully. We must now move on from this dispute to the crucial job of making sure patients get the same high standards of urgent and emergency care every day of the week, which involves more than the junior doctors' contract. We urge the BMA to remove all threat of further industrial action so we can work constructively with junior doctors to address their wider concerns and better recognise their vital importance to the NHS.'

The judge refused leave to appeal and granted the secretary of state £55,000 in costs. The Department of Health spokesperson said a charitable grant would be made to NHS charities. Justice for Health's judicial review was crowdfunded by £300,000 from approximately 10,000 donors. The group was represented by Bindmans' Saimo Chahal QC.

John van der Luit-Drummond is deputy editor of Solicitors Journal

john.vanderluit@solicitorsjournal.co.uk | @JvdLD