Monday 28th October will be the date when, just like Wallace, Mr Rory Phillips QC got up and put on the wrong trousers. Then search as he might, there was no sight nor sound of Grommit coming to the rescue.
We now know that Lewisham has secured an historic 3 Minute Verdict victory and that Jeremy Hunt has told the Commons that he will
‘ respect the Courts as the final arbiter of what the law means.’
– accepting the Court’s decision instead of continuing to try to bend and break it to his own agenda, Dame Joan Ruddock (Lewisham/Deptford) having gracefully admonished him :
‘Let me remind the Court told the SoS that his actions were illegal – that he lost the Appeal. Will he now leave Lewisham hospital alone and learn to respect the views of medical staff…‘ http://bit.ly/1amNdwr
After all the words, the meetings, the marching and the fundraising – the denouement. 11.43 am on Tuesday 29th October and with Mr Phillips’ arguments in fizzled out mode, we were suddenly told by the Master of the Rolls that he and his fellow Lords Justice were just ‘popping out for a moment to see what to do next’ – and with instruction for the rest of us to stay put. Did they want more information or had they heard enough to let us all go?
But no –
in less time than it takes to make a cup of tea, the 3 Minute Verdict was with us. The Government’s ultra vires Appeal dismissed – unanimously.
The court was filled with stunned silence, the judges filed out to rows of bowed heads and then the realisation of the moment burst the silence with spontaneous applause and then dissolving into tears of shock and relief from those of us who have put a year of our lives to one side to fight on – 12 months to the day since Kershaw’s plans were revealed to Lewisham.
Now this evening we hear that the government will not be pursuing the case to the Supreme Court – presumably at last taking sound legal advice that there will be no future in it.
How this came to pass via the Court of Appeal makes for an extraordinary conclusion to a daily year-long fight. On 7th November, the written verdict was released and their conclusions are, to say the least, damning of the government’s actions.
Master of the Rolls Lord John Dyson ( the second most senior judge in England ) who clearly sweeps as he cleans up all before him, was accompanied on either side by Lord Justice Sir Nicholas Underhill and Lord Justice Sir Jeremy Mirth Sullivan – whose names alone promise a degree of mental agility which was far from present in the government’s case, for try as he might Mr Phillips could not make a pig’s ear into anything resembling a piece of legal silk befitting his status.
In his July verdict, Mr Justice Silber had given 8 reasons for his decision. Mr Phillips had obviously needed to trounce this and offered a myriad reasons for those findings as being ‘incorrect’ – as one wag in the gallery afterwards said, it was a performance which reminded him of a 6 year old being caught in the act and coming up with excuse after excuse to avoid the obvious truth from coming out.
In Court we were dragged through paragraphs, clauses, points and sections such that even the Master of the Rolls himself declared he had too many bundles, whilst his colleague declared ‘the bundle I am looking at is even bigger than the original!’ But perhaps even worse, given the weighty bundle issue, certain key papers from the government team had nevertheless been left out. Woops. Certainly nothing of the kind had occurred at our immaculately run Lewisham People’s Commission with Michael Mansfield QC and team.
Mr Phillips again returned to discussions of the interpretation of width – not of trouser sizes but of land mass. Lewisham was deemed to be ‘narrow’ whereas the ‘wide’ interpretation could seemingly refer to anything from the borough next door, to all of south east England and even to all of England in its’ entirety – ‘a complex matrix of inter-dependent services ‘ – according to Mr P, anything else being ‘half a job’.
As David Lock QC said for the campaign – going wide would lend itself to the view, that ‘just like dominoes’, any other hospital in England could be brought under the South London Healthcare Trust TSA wing. According to Mr Rory P it ‘wouldn’t be kosher if it didn’t bring in a wider area’ – which is an interesting non clinical perspective.
We were repeatedly assured that the TSA model is not a background route to re-configuration, but then Mr Hunt’s QC spent a large chunk of time describing the different re-configurations, whilst also plying an argument focused on how exceptional was this situation – and moreover how exceptional was the 5A TSA legislation. However it was clear that two exceptions do not re-configure into a justification.
The judgement reads – ‘far from assisting the Appellants’ case, the nature of the powers conferred by Chapter 5A – a procedure that is an exception to the normal reconfiguration process that Parliament has prescribed in the 2006 Act, which must be completed within tight time limits and with limited consultation – tend to support a narrow, rather than a broad interpretation of the powers conferred upon the TSA. Parliament would have been astute to guard against conferring too broad a power which might be used as a “back door approach to reconfiguration.’
Back doors clearly being left more than ajar, once again we had all found ourselves in the deceptively innocuous sounding jaws of ‘in relation to’ – even on occasion daringly extending to ‘relating to’.
ie. trust? which trust?
Context and construct were apparently all. At one point we veered across to the Local Govt Act 2000 and then rather unexpectedly down the leafy lanes of the Town and Country Planning Act. On day two Mr Phillips apologised for bringing irrelevant areas into his argument – and he did not mean Lewisham.
The warning calls from the Judiciary Bench came thicker and faster
‘It’s in your skeleton!’ ( aka ‘skelly’)
‘We do know all this – but is it material?!’
‘Do you really have to continue?’
Notably there was much emphasis from Mr Phillips on ‘the same words in the same statute may not have the same meaning’ until David Locke QC put paid to that little device with a direct quote from the appropriate guidance : ’ In relation to in the multiple meanings refers to the particular NHS body – not other NHS bodies’. Which pretty much consigned the government’s argument to the mortuary of spin – now borne out in writing where the Lords Justice state that the Appellants’ ( Government’s) submission that their ‘recommendations for Lewisham (in Chapter 5 of the Kershaw recommendations) naturally follow from the Chapter 4 SLHT recommendations…..attributes an unrealistically broad and ill-defined meaning to the words “in relation to”.
Subsquently, the Lords Justice have also chosen to reveal that Mr Phillips somewhat bottled his own ‘narrow interpretation’ argument which he had presented in his Skeleton ie. that accepting Justice Silber’s interpretation would be ‘likely to prove to be a dead letter’ – which in legal parlance is likely to mean something very impolite.
We were even told that Jeremy Hunt sits at the ‘apex’ of our NHS – perhaps in the hope that we would feel both admiration and sympathy for his pointy end predicament – despite the H&SC Act having divested the SoS of his duty to the NHS. Mr Hunt had apparently taken his actions empathetically ‘all for the NHS’ whilst painfully grappling along with Kershaw, all for the sake of Lewisham. Poor thing.
Once again Mr Phillips ( plus Mr Hunt ) is in receipt of a legal rebuke within the Judgement –
‘the fact that he may appoint a TSA only when he considers it “appropriate in the interests of the health service” (section 65B(2)) is misplaced.’
Concluding that whether ‘in relation to’ was examined in the context of the 2006 Act as a whole, or in the context of Chapter 5A in isolation, – the ‘natural meaning is that adopted by Silber J.’ ie Jeremy was wrong – and indeed acted illegally.
As Ms Laing for Lewisham Council said – ‘the TSA should have stopped at 4’, but like tumbleweed Team Hunt just kept on rolling. …
As for the Court of Appeal’s conclusions on consultation – ie. did the Lewisham GPs and the Lewisham people have a right to flag up their dismay and fear about the plan and have their views listened to, or could their opinion legally be diluted by CCGs in Kent by the government’s nationally interconnected argument? They jointly took the decision to dismiss this element of the Appeal as irrelevant in the light of the ‘strained and unnatural’ interpretation of the ultra vires over-the-border aspect – they did though observe :
‘The absence of any requirement to consult any other Trust that might be affected by the recommendations is, in our view, a powerful indication that Parliament gave a TSA power to recommend action which would affect or concern or have an impact on the Trust to which he had been appointed and no other Trust’
Meanwhile – so many hospitals in London and elsewhere are now under grave threat.
‘The victory won in the court by the people of Lewisham will give hope by people who are disappointed by today’s announcement’ said Andy Burnham to the Commons on 30th October http://bit.ly/1amNdwr questioning the announcement of service closures and downsizing in North West London, a time when A&E targets in London have been missed on 48 out of the past 52 weeks due to extreme pressures on the service
Yes, fight on we did – and when I paid a visit to Lewisham Hospital the following morning, did every single inch of it feel worth it. The Riverside building they would set up to sell off as a private concern and the 60% they wanted to demolish to use the site for private property development now felt at once less fragile and more firmly rooted in the ground.
As we also know, the government are in the midst of pursuing a Clause in the Care Bill which the laid down a week before the hearing and which would enable them to take their longed for ‘wider approach’ – so clearly they felt wobbly at the knees with regard to the Lewisham question even before proceedings began.
At one point Mr Phillips had said that he felt it was ‘his duty’ to introduce Care Bill Amendment 168A into the case – however Master of the Rolls Dyson immediately rebuked him, saying that it was not indeed relevant because at that point ‘the government could not be 100% certain of winning this Appeal’. Indeed, Lord Justice Mirth Sullivan felt moved to join in with ‘one might observe it contains wording you wouldn’t use if minded to confer this sort of power in the first place’. At which point mirth was not just on the bench but also in the public seating area.
In judicial terms we might not be too far off the mark if we read that as being a legal ‘you cannot be serious?’ to the drafters of said Amendment 168A – lately morphed into hospital land-grab Clause 118, nestled cuckoo-like in Chapter 4 of the Care Bill, currently making its’ way through the Common http://services.parliament.uk/bills/2013-14/care.html and despite Earl Howe’s ‘dear me no’ protests, so accurely assessed by the Court of Appeal thus :
‘The new clause provides that references in Chapter 5A to taking action in relation to an NHS trust include a reference to taking action “in relation to another NHS Trust”. This is precisely the kind of provision that one would have expected to see in Chapter 5A if Parliament had intended it to have the meaning attributed to it by the Appellants.’
The Lewisham ruling and the ensuing Clause 118 are key components in the current and future re-configuration plans for the Government’s would-be dismantle of NHS A&Es and land-grab of hospitals in England – and further afield into Scotland and Wales if they can manage it. The back door having closed, the front door is under attack. The story is not over. The fight is not over.
In the meantime please encourage your MPs to support EDM 656 http://www.parliament.uk/edm/2013-14/656
Send letters to your local press to encourage readers to sign and circulate the 38Degrees petition http://you.38degrees.org.uk/petitions/jeremy-hunt-should-resign-and-take-his-hospital-closure-clause-with-him .