QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF UNISON||Claimant|
|THE SECRETARY OF STATE FOR HEALTH||Defendant|
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Mr James Eadie QC and Ms Catherine Callaghan (instructed by Department of Health, Legal Group) appeared on behalf of the Defendant
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"In our judgment, it is clear that the introduction of a Bill into Parliament forms part of the proceedings within Parliament. It is governed by the Standing Orders of the House of Commons (see, in particular, standing order 57(1)). It is done by a Member of Parliament in his capacity as such, not in any capacity he may have as a Secretary of State or other member of the government. Prebble (cited above) supports the view that the introduction of legislation into Parliament forms part the legislative process protected by Parliamentary privilege. To order the defendants to introduce a Bill into Parliament would therefore be to order them to do an act within Parliament in their capacity as Members of Parliament and would plainly be to trespass impermissibly on the province of Parliament."
"The paradigm case arises where a public authority has provided an unequivocal assurance, whether by means of an express promise or an established practice, that it will give notice or embark upon consultation before it changes an existing substantive policy."
"Even if we had accepted that the relevant ministerial statements had the effect of a promise to hold a referendum in respect of the Lisbon Treaty, such a promise would not in our view give rise to a legitimate expectation enforceable in public law, such that the courts could intervene to prevent the expectation being defeated by a change of mind concerning the holding of a referendum. The subject-matter, nature and context of a promise of this kind place it in the realm of politics, not of the courts, and the question whether the government should be held to such a promise is a political rather than a legal matter. In particular, in this case the decision on the holding of a referendum lay with Parliament, and it was for Parliament to decide whether the government should be held to any promise previously made."
"However, as a matter of principle, I consider that where Parliament has conferred a rule-making power on a Minister of the Crown, without including an express duty to consult, but subject to a Parliamentary control mechanism such as the negative resolution procedure, it is not generally for the courts to superimpose additional procedural safeguards."
And per Rimer LJ at paragraph 65:
"I respectfully prefer and agree with the views expressed by Maurice Kay LJ. The practical difficulties that have led Sedley LJ, on his own approach, to reject any duty of consultation in the present case provide in my judgment a compelling inference that the real explanation as to why appellants are not entitled to succeed on the consultation issue is that it is simply no part of the scheme of section 3 that there should be any consultation; and if that is the legislature's scheme, it is not for the courts to re-write it."
"What he says about primary legislation of course holds true: the preparation of Bills and the enactment of statutes carry no justiciable obligations of fairness to those affected or to the public at large. The controls are administrative and political."
"This partnership agreement outlines how partners will work together to promote effective partnership working on the workforce implications of policy."
This Partnership Agreement sets out a framework agreed by the Department of Health NHS Employers and NHS Trade Unions. It describes the principles of partnership, processes and structures which are linked to the partners' shared goals and objectives. It outlines how the partners will work together to promote effective partnership working on the workforce implications of policy and sets out agreed working arrangements for the revised Social Partnership Forum (SPF).
2. Aims of the Social Partnership Forum
The SPF will be a partnership which is used to discuss, debate and involve partners in the
development and implementation of the workforce implications of policy. In particular it will:
contribute trade union and employer perspectives to the development of policy
provide constructive comments on emerging policy at a formative stage
contribute ideas on the workforce implications of developing policy and implementation
promote effective communications between partners.
3. Roles and Responsibilities
To enable effective operation of these partnership arrangements, all parties agree to recognise and respect each other's roles and functions which are distinct but complementary. In particular, this agreement recognises explicitly that:
Ministers are democratically elected and have formal responsibility for developing and implementing public policy through the Department of Health
Trade Unions have a responsibility to represent and act in the interests of their members
NHS Employers has a responsibility to represent the views of its members (individual NHS employers)
other stakeholders will also have legitimate views that Ministers and policy developers will need to consider and take into account.
5. Principles for Effective Joint Working
To deliver partnership working successfully it is important to develop good formal and informal working relations that build trust and share responsibility, whilst respecting difference. To facilitate this, all parties commit to adopt the following principles in their dealings with each other:
building trust and a mutual respect for each other's roles and responsibilities
openness, honesty and transparency in communications
top level commitment
a positive and constructive approach
commitment to work with and learn from each other
early discussion of emerging issues and maintaining dialogue on policy and priorities
commitment to ensuring high quality outcomes
where appropriate, confidentiality and agreed external positions
making the best use of resources
ensuring a no surprises culture.
7. Working Arrangements at National, Regional (SHA) and Local Level
i) National Level
The Social Partnership Forum (SPF) underpins the NSF and is a tri-partite partnership model between the Department of Health, national Trade Unions and NHS Employers which is used to discuss, debate and involve partners in the development and implementation of the workforce implications of policy."
"29. I also confirm that the SPF has worked in practice over recent years in accordance with the agreement. There have been a large number of occasions when Government ministers have come to the SPF to discuss proposed policy changes and to seek our views. This was normally in advance of formal consultation on the proposals but has sometimes been in relation to matters where decisions were made without consultation. Members of the SPF provided their views to ministers in a variety of ways. Sometimes we would give them a view directly around the table on the occasion when the issues were raised. On other occasions we would make discrete inquiries and come back to ministers to set out our views after a period of reflection.
30. There were also occasions when we discussed something and, as a result of our input, ministers agreed that further work was required to be done on a draft policy before it could be taken any further. By way of example I refer to the work we did around the "staff passport". This was guidance issued by the Department of Health to explain to staff moving from one NHS body to another how their rights were changed and which rights they could expect to be maintained as they moved organisations. Pages 199a to 199i are an example of a travelling document which went back and forth between the Department and the staff side to make sure that the Government guidance, once it was issued, had full input from both the employers and staff side of the SPF."
"(1) Each of the bodies listed in subsection (2) must, in performing its NHS functions, have regard to the NHS Constitution.
(2) The bodies are
(a) Strategic Health Authorities;
(b) Primary Care Trusts;
(c) National Health Service trusts;
(d) Special Health Authorities;
(e) NHS foundation trusts;
(f) the Independent Regulator of NHS Foundation Trusts;
(g) the Care Quality Commission.
(3) In subsection (1) an "NHS function" means any function under an enactment which is a function concerned with, or connected to, the provision, commissioning or regulation of NHS services.
(4) Each person who
(a) provides NHS services under a contract, agreement or arrangements made under or by virtue of an enactment listed in subsection (6), or
(b) provides or assists in providing NHS services under arrangements under section 12(1) of the National Health Service Act 2006,
must, in doing so, have regard to the NHS Constitution."
"(1) The Secretary of State must ensure that the NHS Constitution continues to be available to patients, staff and members of the public.
(2) At least once in any period of 10 years the Secretary of State must carry out a review of the NHS Constitution (referred to in this Chapter as a "10 year review")."
"They guarantee that the principles and values which underpin the NHS are subject to regular review and recommitment; and 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 and transparent debate with the public, patients and staff." (My underlining)
There is no warrant for that in the authorising statute.
"You 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."
"(1) This section applies to-
(a) relevant English bodies ...
(1A) In this section-
"relevant English body" means-
(a) a Strategic Health Authority,
(b) a Primary Care Trust,
(c) an NHS Trust...
(d) an NHS foundation trust.
(1B) Each relevant English body must make arrangements, as respects health services for which it is responsible, which secure that users of those services, whether directly or through representatives, are involved (whether by being consulted or provided with information, or in other ways) in-
(a) the planning of the provision of those services,
(b) the development and consideration of proposals for changes in the way those services are provided, and
(c) the decisions to be made by that body affecting the operation of those services."