UNISON, R (on the application of) v Secretary of State for Health

Courts should not impose consultation requirements which intrude upon the introduction of primary legislation or the proceedings of Parliament. A legitimate expectation of consultation cannot ordinarily make the introduction of a Bill conditional upon prior consultation about its principle. Statutory duties requiring NHS bodies to involve users in planning and service changes do not impose equivalent duties on the Secretary of State. A partnership agreement and the NHS Constitution did not create such an obligation. The scope of consultation on detail and implementation remained for the Secretary of State to determine, subject only to any later justiciable error.

UNISON sought judicial review of the Secretary of State for Health’s decision to consult on the detail and implementation of proposed NHS reforms, but not on their principle. The reforms contemplated abolishing Strategic Health Authorities and Primary Care Trusts, transferring commissioning functions, and requiring NHS hospitals to become foundation trusts.

UNISON alleged an unfulfilled legitimate expectation arising from governmental documents, the NHS Constitution and statutory provisions requiring involvement of NHS users. It also challenged the rationality of the consultation. The central issues were whether consultation could be required before the introduction of legislation and whether the relevant documents or statutes imposed that obligation.

1. The claim was refused. UNISON was ordered to pay the Secretary of State’s costs, subject to detailed assessment if not agreed.
2. The courts cannot question the legitimacy of an Act of Parliament or interfere with Parliamentary proceedings. They cannot require a Bill to be introduced, and equally cannot prohibit or delay its introduction. A conditional order requiring consultation before introduction would impermissibly intrude upon Parliamentary functions. The principles in British Railways Board v Pickin [1974] AC 765 and Her Majesty’s Treasury v Smedley [1985] QB 657 applied.
3. The proposed expectation concerned a political decision about the principle of primary legislation. Following Wheeler v Office of the Prime Minister and others [2008] EWHC 1409 Admin, such a promise was not enforceable in public law. The Parliamentary passage of the Bill provided the established means for consideration of different views.
4. The reasoning in BAPIO Action Limited v Secretary of State for the Home Department [2007] EWCA Civ 1139 supported the conclusion that courts should not superimpose consultation safeguards on a statutory or Parliamentary control mechanism. The preparation and enactment of primary legislation carry no justiciable obligations of fairness to those affected.
5. The Partnership Agreement concerned discussion of workforce implications and policy implementation. Its wording did not clearly promise consultation on structural NHS changes before legislation. The NHS Constitution imposed duties on specified NHS bodies under sections 1 and 2 of the Health Act 2009, while the Secretary of State’s duties under section 3 were limited to maintaining availability and periodic review. Its wider declaration of a full and transparent debate had no statutory warrant.
6. Section 242 of the National Health Service Act 2006 imposed duties on relevant NHS bodies, not the Secretary of State. Involvement could be achieved by providing information as well as by consultation, and the Secretary of State had not prevented NHS bodies from complying with their own duties.
7. The boundary between principle and implementation was capable of difficulty, but the Secretary of State was entitled to define the consultation’s scope unless a later erroneous and justiciable conclusion resulted. The separate decision in Greenpeace v Secretary of State for Trade and Industry [2007] EWHC 311 Admin was distinguishable because it concerned an immediately effective policy decision rather than the precursor to legislation.