Legal Updates

Unison’s recent application to the High Court to judicially review the Department of Health’s proposals within the July 2010 White Paper “Equity and Excellence: Liberating the NHS” to radically re-structure the National Health Service (NHS), has shown that even where express assurances are made that consultation should take place, the Courts will not necessarily enforce such promises.

Unison’s Application to the High Court R (on the application of Unison) v Secretary of State for Health [2010] EWHC 2655 (Admin)

Although the Department of Health had engaged in public consultation concerning the implementation of the White Paper’s proposals, Unison claimed the decision to proceed should be judicially reviewed by the High Court on the basis of its legitimate expectation to be consulted on the proposed changes.

When an obligation to consult arises

The courts have considered consultation within the development of the law relating to legitimate expectation over the last 50 years, which itself arises from established principles that public bodies should act fairly and not abuse their power.

The courts will only require a public body to undertake consultation in particular circumstances in which it can be established, by reference to the organisation’s past policy and practice, that those affected by the proposed changes have a legitimate expectation to be consulted.

This “procedural” legitimate expectation falls into two categories, as identified in the leading Court of Appeal conjoined cases of R (Bhatt Murphy) v The Independent Assessor and R (Niazi, Tachibeglou and Cakir) v Secretary of State ([2008] EWCA Civ 755).

The first category of procedural legitimate expectation was referred to as the “paradigm case” and arises when there has been “an unequivocal assurance, whether by means of an express promise or an established practice” that the public body will embark on consultation before it changes an existing substantive policy. However, even where there is a written policy of consultation, the court will not bind a public body to it in circumstances where there is an overriding legal duty or countervailing public interest.

The court also identified a secondary category of procedural expectation of consultation, in which, although there is no promise or practice in place, the policy “distinctly and substantially” affected a specific person or group who, in the circumstances, were entitled to rely on its continuance. It emphasised that this second case will not often be established and the impact of the public body’s past conduct must be pressing and focused.

These judicial principles underpin the Government’s own Code of Practice on Consultation. Although the Code confirms the Government’s commitment to undertaking effective consultation, when it does determine consultation is necessary, it ensures no general expectation of consultation can arise: “This Code is not intended to create a commitment to consult on anything, to give rise to a duty to consult, or to be relied upon as creating expectations that the Government will consult in any particular case. The issues on which the Government decides to consult depends on the circumstances in each case.”

The High Court’s decision in Unison’s case

Unison claimed that its legitimate expectation was based on statements made in various documents including the NHS Constitution, the NHS Act 2006 and the White Paper itself – arguably falling squarely within the “paradigm” case identified by the court in the Bhatt Murphy case.

Mitting J granted permission for judicial review on the basis that the issue was of constitutional importance. With respect to Unison’s application, the court reiterated that it could not forbid the introduction of a bill into Parliament, or even allow for its delay, which would be the consequence in this case, if the Department of Health were ordered to consult on the principle of the changes.

Ultimately, the legislative process itself is the means by which changes introduced by primary legislation will be scrutinised. In essence, the court confirmed that “the subject matter, nature and context of a promise of this kind place it in the realm of politics, not of the courts.”

Although Unison’s application was turned down on the basis of this principle, Mitting J went on to consider the various statements upon which Unison relied, with respect to its legitimate expectation of consultation on the principle of the changes proposed. The following extracts from the NHS Constitution were considered:

• “…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 transparent debate with the public, patients and staff.” and; 
•  “You [the public and patients] 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.”

Both statements appear to amount to express promises, of the type envisaged in the “paradigm” case, of consultation being undertaken on proposed changes to both the NHS and its services before implementation. However, although the court accepted that NHS bodies may be bound by such promises, it stated that the Secretary of State himself is only bound by his statutory duties set out in the NHS Act 2006, and these specifically did not include requiring him to have regard to the NHS Constitution. The judge’s views, based on the specific wording of the statute, indicate that consideration must be given in each case to whether the promise in fact binds the decision-maker.

The implications for consultation with respect to impending change

The main principle outlined in Unison’s case will apply to the impending changes to the public sector beyond the NHS. Given the statutory foundation of most public bodies, the principles of the re-organisation will also fall to Parliament for consideration, rather than those immediately affected by the changes, including both staff and services users. Although the public sector may, like the NHS, be consulted with respect to the way in which the relevant bodies will be dismantled and reformed, the decision to proceed will remain with Parliament.

The circumstances in which the courts will identify a legal obligation to consult were already narrow – Mitting J reiterated that it would be an extraordinary case in which the courts would find a duty to consult with respect to important policy changes introduced through primary legislation. This case illustrates that changes requiring primary legislative reform, which by definition will be fundamental in nature, are immune to judicial interference and may be subject to limited public consultation and involvement outside of the legislative process. Most importantly, this case demonstrates that even express promises to consult, whilst apparently general in application, will not necessarily be enforced by the courts.

Emily Carter