"Yes, we are imposing a new contract."
– Jeremy Hunt responding to the question from Heidi Alexander MP: "Is the Health Secretary imposing a new contract – yes or no?" 18th April 2016
When is a decision not a decision? When it's taken by a government minister, apparently. According to his lawyers, Health Secretary Jeremy Hunt has "never said he is compelling NHS employers to adopt the new contracts".
In the gap between sweeping sound bites and technical legalese, in an old, wood-panelled room in the Royal Courts of Justice that would make a great Wetherspoons, a battle is playing out as a group of five doctors take Jeremy Hunt to judicial review over the controversial Junior Doctors contracts.
Controversial because the contracts will force doctors to work until 10PM without overtime, with Saturday added to their normal working week. Outside the court on Monday, Dr Deepika Aggarwal told me the new contract would mean "I would have to chose between having a family and having a profession, and that's not a decision anyone wants to have to make," adding that she's already noticing staff shortages thanks to the contracts.
The dispute has sparked unprecedented doctors' strikes, and the group, calling itself Justice for Health, is hoping that a legal challenge may stop the contracts in their tracks.
Justice for Health's challenge, presented by Jenni Richards QC, is made on the grounds that:
1) Hunt doesn't really have the right to impose the contracts.
2) He has "failed to make the true nature of his decision clear and has acted in breach of the requirements of transparency, certainty and clarity".
3) He has acted irrationally.
Their story, then, is that the Health Secretary is "imposing" the unpopular new contracts. But don't be fooled by junior doctors and health campaigners waving anti-Hunt placards at protests, or indeed the words of the Health Secretary himself to his parliamentary colleagues. Because, in fact, Mr Hunt's lawyers insisted, "there was nothing imperative in what [Hunt] was saying or doing". In other news: there are no clear legal grounds for the suggestion that bears shit in the woods. So, do bears shit in the woods, M'lud?
The group didn't know each other before the case, and came together over WhatsApp groups for other campaigning activity. Things have got to this point thanks to a mammoth crowdfunding campaign, with at least 5,000 individual donations raising £300,000. Before that happened, the case could have cost the claimants dearly – in June, the Secretary of State hit the campaign with a £150,000 cost protection order. "There were times when we hadn't raised the money for costs and potentially I could have lost my flat if we lost and had to pay the fees. It's a huge amount of responsibility," said Dr Francesca Silman.
When the costs were met, the government tried to get the case thrown out, but the judge, Mr Justice Green, said that this is "plainly a serious case" which "requires full judicial review".
"You've got to ask yourself, how important is it to you?" said Dr Ben White, another claimant. "We're going to be in the NHS for the next 30 to 40 years. We're the ones, if this dodgy contract is rolled out, who are going to be delivering it. We're the ones who are going to be apologising to people waiting for 16 hours on a trolley in A&E. We're going to be the ones when no one's there to take over from us in the evening when there's no staff. For Jeremy Hunt it's temporary; for us, this is a long-term thing."
Justice for Health is questioning Hunt's claims about the "weekend effect" – where more people die in hospital over the weekend – which he's used to justify the contracts, and the implication that a "seven-day NHS" is dependent on the contracts.
The roots of the dispute go back to January of 2011, when Andrew Lansley, then-Health Secretary, declared, "I intend to be the first Secretary of State in the history of the NHS who, rather than grabbing more power and holding on to it, will give it away." This was the basis of the 2012 Health and Social Care Act. It was a classic case of the Conservatives seeing themselves as the party of small-government. On the 7th of September, 2011, Junior Minister Paul Bairstow MP explained that the Health Minister would only intervene in "exceptional circumstances". He said: "The position is clear: we are giving the NHS more freedoms and autonomy."
Fast-forward five years to the present day, and a Conservative government is ignoring the NHS' new "freedoms and autonomy" and making it use new contracts. But Jeremy Hunt simply doesn't have the authority to impose this – he's acting ultra vires. He's not the boss of them – NHS Trusts are; they write the contracts – so Hunt can't decide anything. That's how Justice for Health's argument goes.
And it seems that Jeremy Hunt doesn't exactly disagree. He doesn't have the authority. But he's not claiming to. He hasn't imposed anything. Junior doctors and the BMA may dislike the new contract, but who the fuck do they think they are and why should we care what they think? NHS Trusts – the employers, who actually matter – are in favour of the contract, and Hunt has merely given it the green light. They're choosing to use it. Even if he does say stuff like, "Yes, we are imposing a new contract," in Parliament, there's not a shred of evidence that he's imposing a new contract. We'll find out if Mr Justice Green agrees next week.
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