R (Justice for Health) v Secretary of State for Health

This judicial review concerned whether the Secretary of State lawfully decided on 6 July 2016 to approve and to seek the phased introduction of a new national junior doctors' contract.

The court addressed three grounds: (i) Ground I (vires) — whether the decision unlawfully sought to compel employers to adopt the contract and whether it lay outside the Secretary of State’s powers under the National Health Service Act 2006 (NHSA 2006), including the general power in section 2; (ii) Ground II (transparency and good administration) — whether the Ministerial Statement of 6 July 2016 was opaque or misleading so as to breach the common-law duty of transparency and good administration and thereby impede negotiation or challenge; and (iii) Ground III (irrationality) — whether the decision was irrational because it lacked an adequate evidential basis, in particular as to any causal link between the contract and weekend mortality rates.

The court held that (a) the Secretary of State had in substance approved the contract but had not legally compelled employers to adopt it and that the approval fell within his lawful powers under the NHSA 2006; (b) although the 6 July Statement created some initial misunderstanding among junior doctors about whether all negotiating options were foreclosed, the Secretary of State subsequently and promptly clarified his position and there was no breach of the principles of transparency or good administration; and (c) the Secretary of State’s decision was within the permissible margin of discretion and was supported by a cogent evidential basis, so the irrationality challenge failed.

The claimant company represented junior doctors who objected to a new national contract for junior doctors and sought judicial review of the Secretary of State’s decision to introduce that contract following a referendum in which junior doctors voted to reject the proposal. The claim advanced three principal grounds: lack of power to impose the contract (Ground I); breach of the common-law duty of transparency and good administration in the Ministerial Statement of 6 July 2016 (Ground II); and irrationality, notably that the decision was not supported by adequate evidence linking the contract to reductions in weekend mortality (Ground III).

Parties and procedural posture: The claim was issued in the Administrative Court and heard on an expedited, rolled-up basis (permission and merits). Interested parties included the NHS Confederation (and NHS Employers) and the British Medical Association. The court proceeded to a full merits determination.

Nature of relief sought: The claimant sought declarations and relief overturning the Secretary of State’s approval/decision and preventing implementation.

Issues framed by the court:

• Whether the Secretary of State had lawfully adopted a decision approving the contract and whether that decision unlawfully attempted to compel diverse NHS employers to implement it, contrary to the statutory scheme in the NHSA 2006 (Ground I).
• Whether the Minister’s Statement was so opaque or misleading as to breach established principles of transparency and good administration, and whether Parliamentary privilege limited the court’s review (Ground II).
• Whether the decision was irrational or perverse because it lacked an adequate evidential basis, especially in relation to the asserted link between the contract and weekend mortality (Ground III).

Court’s reasoning and conclusions: The court found that a unilateral decision of approval had been taken on 6 July 2016, but that the decision did not legally compel employers to adopt the contract. The Secretary of State’s actions were within the scope of his duties and powers under the NHSA 2006 (including the general, ancillary power in section 2 and express staffing-related functions such as section 254A) and the target duties in section 1 and related provisions. On transparency, the court accepted that the 6 July Statement had led many junior doctors to believe there was no further negotiating daylight, but it also found that the Secretary of State promptly clarified his position in the litigation and that, when viewed objectively in context, there was no continuing lack of clarity or breach of the duty of good administration. Parliamentary privilege did not prevent the court from examining the Statement as evidence of a decision taken outside Parliament. On irrationality, the court held that there was a cogent body of expert and empirical material supporting the existence of a weekend effect and that the Secretary of State was entitled, within a broad margin of political and policy discretion, to conclude the contract would make a material contribution; the claim of irrationality therefore failed.

Disposition: The claim was dismissed. The court recorded the Secretary of State’s clarified position in the proceedings: he did not purport to exercise compulsory powers to force all employers to adopt the contract, employers remained free in principle to negotiate, and the Secretary of State retained powers of compulsion in reserve should implementation problems arise.

The claim is dismissed. The court found that the Secretary of State took a decision on 6 July 2016 approving the negotiated contract but did not lawfully compel employers to adopt it; that the approval fell within the Secretary of State’s powers under the National Health Service Act 2006 (including the general power in section 2 and staffing-related functions such as section 254A); that there was initial ambiguity from the Ministerial Statement but the Secretary of State promptly clarified his position and there was no breach of the duty of transparency or good administration; and that the decision was not irrational given the available evidence and the broad margin of political and policy judgment.