A series of unprecedented five-day strikes by junior doctors is planned for the coming months if no compromise can be found over Health Secretary Jeremy Hunt’s plans to impose new contracts.

It marks the latest climax in a deeply damaging dispute over control of the NHS.

Theresa May’s decision to keep Hunt in post was one of the more disappointing cabinet appointments and ensured that the dispute would rumble on.

I’ve written before about the need for employers to stay on the right side of the law of contract when seeking to make unilateral changes to a person’s job. Complications can arise where the employer is a public authority governed by the principles of administrative law.

This week, a High Court judge heard arguments in a legal challenge by a group of junior doctors to Hunt’s decision, his communications to Parliament and the evidence used to justify introducing the new contracts. Reports suggest that Mr Justice Green was receptive to the case, having dismissed an attempt by Hunt’s lawyers to strike it out as hopeless.

A decision is expected on 28 September 2016. Whichever way the judge rules, an appeal either side is likely to appeal. That could mean postponement of the planned five-day strikes until an authoritative ruling on the legality of Jeremy Hunt’s decision.

Lawyers for #Justhealth informed the Judge that Hunt’s actions breached the “requirements of transparency, certainty and clarity”, among other things.

This principle of public law is a particularly potent weapon in the doctor’s arsenal, as it is for any individual or group seeking to hold the executive to account for its decisions and policies.

It comes from the Supreme Court case of R. (Lumba) v Secretary of State for the Home Department [2011] 2 W.L.R. 671, a case which concerned the government’s unlawful detention of foreign nationals pending deportation. There, in the midst of a much wider discussion about the circumstances in which government policy may be found illegal (ie. made outside the powers permitted by primary legislation), at § 34, Lord Dyson wrote:

The rule of law calls for a transparent statement by the executive of the circumstances in which the broad statutory criteria will be exercised.

The Lumba principle was used last year to effectively dismantle the system of fast track processing of asylum seekers in detention (see R (Detention Action) v Secretary of State for the Home Department [2015] I.N.L.R. 372 at §§ 14 and 70).

It’s a high threshold test given that it requires Judges to intervene in the development of public policy decision. But when cases concern basic rights (such as personal liberty, health and welfare) the arguments in favour of intervention may carry some weight.

Posted by Ben Amunwa

Founder and editor of Lawmostly.com. Ben is a commercial and public law barrister with The 36 Group. He gives expert legal advice on employment, public law and commercial disputes to a wide range of clients.

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