Unison's white paper legal challenge heard in the High Court

The claim brought by Unison is that Andrew Lansley “was obliged to engage in discussions and/or consultation concerning the merits of the proposals before adopting a settled policy.”

Unison said the secretary of state had to consult under the terms of the NHS constitution and those of the Social Partnership Forum.

Michael Belloff QC, for Unison, said the arrangements for consultation and the “no surprises” policy of the SPF were not “automatically nullified” by the arrival of a new government.

He produced in evidence an email exchange between Unison and the Department of Health’s representatives on the SPF that showed the forum continued to operate after the new government was formed.

Referring to a meeting between Mr Lansley and Unison representatives on 16 June at which the union say they were not informed of plans to abolish primary care trusts, Mr Belloff told the court: “If the obligation is to consult on all matters of high policy then the fact that one doesn’t discuss a matter of that kind simply isn’t compliance with the proper terms of the agreement. The agreement is not automatically abrogated.

“It may be inconvenient for the secretary of state to be bound by commitments made by the previous government, but bound he is.”

The argument put forward by Lansley’s team in their skeleton argument was that he had no legal obligation to consult on the merit of the white paper and he is acting lawfully in consulting on only the implementation and detail of the proposals.

The DH said Unison’s case has changed since they first filed for judicial review.

The Department’s skeleton argument said: “The claimant’s primary argument was that the language of the white paper constituted an unambiguous promise to consult on the merits of the proposals contained in it. Its secondary argument was that steps allegedly being taken to implement the proposed changes were pre-empting or rendering nugatory the consultation that is currently taking place.”

The skeleton described Unison’s outline of the obligations under the SPF as “a more amorphous obligation” and one that demonstrates “the difficulties [Unison] has in identifying any alleged legal obligation on the secretary of state in relation to consultation.”

Unison health chair Karen Jennings was in court to hear the evidence presented.