Justice for Health Ltd, R (On the Application Of) v The Secretary of State for Health

A ministerial decision must be construed objectively, by its language and proper context. A public authority’s policy or decision must be sufficiently clear to enable affected persons to understand their position and make meaningful representations, but prompt clarification may remove an initial ambiguity. The Secretary of State for Health had broad statutory powers under the National Health Service Act 2006 to participate in negotiations, approve a model contract and promote its introduction. Approval did not compel NHS employers to adopt the contract: individual employers retained freedom in principle to negotiate. Where reputable evidence is conflicting in a health-policy decision, the minister may choose between reasonable views within a broad margin of discretion, particularly where the policy is prospective and subject to review.

Justice for Health Limited, a company representing junior doctors, sought judicial review of the Secretary of State’s decision on 6 July 2016 to proceed with the phased introduction of a new national contract without the doctors’ collective agreement.

The claim alleged that the Secretary of State had acted beyond his powers under the National Health Service Act 2006, breached the common-law principles of transparency and good administration, and acted irrationally by relying on disputed evidence concerning weekend mortality and seven-day NHS services. The hearing began as a rolled-up permission hearing but proceeded as a full judicial review.

The application for judicial review was dismissed and no relief was granted.

1. Ground I. The court construed the decision substantively. The Secretary of State had made a unilateral approval or framework decision concerning the proposed contract. It was a strong recommendation and contemplated implementation without collective agreement, but it did not legally compel individual NHS employers to adopt the terms. Employers retained freedom in principle to negotiate. The decision fell within the Secretary of State’s powers under the National Health Service Act 2006, including his powers to facilitate staffing arrangements and promote the statutory objectives of the health service.
2. The general power in section 2 of the National Health Service Act 2006 was ancillary. It could not be used where an express power applied, where legislation excluded the proposed action, or where the action lacked a sufficient connection with a statutory function. The detailed scope of any compulsory powers was not decided.
3. Ground II. Transparency and good administration applied because the decision had continuing effects, affected employment rights and was addressed in part to junior doctors. The parliamentary statement initially caused genuine misapprehension that employers were compelled and that no negotiating scope remained. The Secretary of State subsequently clarified, in a timely and unequivocal way, that employers were not legally compelled and could negotiate. Viewed in the round, there was no continuing legal uncertainty and no breach.
4. The court could examine the parliamentary statement as objective evidence of an executive decision taken outside Parliament. This did not impeach parliamentary proceedings or allege that the Minister had misled Parliament. The approach was consistent with Toussaint v Attorney General of St Vincent and the Grenadines [2007] 1 WLR 2825.
5. Ground III. The evidence on weekend mortality and staffing went both ways, but reputable evidence supported the Secretary of State’s view that a weekend effect existed and that greater availability of experienced doctors could make a material contribution to alleviating it. In a health-policy decision involving competing expert views, the Secretary of State had a broad margin of discretion. The contract formed part of a wider package, was a staging point rather than an immutable endpoint, and was subject to review. The irrationality challenge therefore failed.