According to one Hollywood scriptwriting website: “The courtroom drama, with the help of complex characters and a great storyline, can result in a heart-pumping, sweat-inducing, masterpiece of a film.”
I think we all know deep down that in real life courtrooms bear as much resemblance to sweat-inducing masterpieces as actual dates do to their online dating profiles. As a connoisseur of courtroom drama (in my fantasies, one day John Humphrys will interrogate me ruthlessly from the Mastermind chair on all 154 episodes of The Good Wife), I can state with great authority that the briefs that get hearts racing in televised judicial tussles are invariably not the legal kind.
That said, this week’s David and Goliath battle of grassroots doctors’ campaigning group, Justice for Health, versus the Secretary of State for Health promised to be unusually enthralling. However you try and spin it (the Department of Health’s line was stark and simple: this case is wholly “without merit”), it’s not every day that five public servants challenge the very legality of a Cabinet minister’s actions using a £300k war chest from the most successful example of crowd-funding in UK legal history.
Courtroom Four of the Royal Courts of Justice was packed with press, barristers and junior doctors crammed into every one of the hundred available public seats. The judge presiding over the case, the Hon. Mr Justice Green, began by tartly dismissing the Department’s line with the statement that, “this is plainly a serious case” that “requires full judicial review”.
The essence of Justice for Health’s case is that Jeremy Hunt has acted illegally and beyond his powers by seeking to impose a new contract on junior doctors despite their overwhelming opposition. If successful, Mr Justice Green could next week declare Hunt’s decision unlawful and quash it.
The defence team’s case – that Hunt has never insisted on imposing a contract, instead merely making benign, non-binding, entirely voluntary recommendations to NHS trusts regarding how they employ their junior doctors – is awkwardly offset by the litany of public speeches, media interviews and statements to the House of Commons in which Hunt has described himself unequivocally as imposing his contract. Indeed, on February 11th this year, Hunt chose to inform all 54,000 junior doctors in England of his decision to use his ‘nuclear option’ of imposition through the medium of a detailed statement to parliament.
Extraordinarily, Hunt’s QC argued he should not be held accountable for statements made in the “rough and tumble, hurly burly of parliamentary debate” since those statements are protected by parliamentary privilege and therefore cannot be used in court. Which – of course – begs the question whether that was precisely the reason Hunt decided to lob his imposition grenade from deep within the heart of Westminster. As the Justice for Health QC put it, this was a clear attempt on his part “to seek immunity from public scrutiny”. Disappointing, to say the least, from a man who purports to champion an NHS-wide duty of candour.
But that was merely the warm up. In a defence so audacious it felt more Ally McBeal than To Kill a Mockingbird, Hunt’s QC argued there was not a shred of evidence anywhere at all that Hunt has ever sought to impose his contract, nor that junior doctors had ever believed him to be imposing. And I quote:
“Nobody – least of all junior doctors – understood the Secretary of State to be imposing this contract.”
The collective, involuntary courtroom gasp was so resounding it could be heard all the way along the Strand, down Whitehall and inside Richmond House itself where Mr Hunt, conspicuous throughout proceedings by his absence, was distracting himself – I like to imagine – by obsessively buffing that NHS pin he so prominently displays on his lapel when in public.
There was more:
“There is not a scrap of evidence that ANY junior doctors understood the Secretary of State to be deciding to compel the introduction of the contract.”
In fact, our learned friend went on:
“There is no evidence that ANYONE thought that’s what he was doing.”
By now, my gasps were so overwhelming I found myself longing for some courtside Entonox or, at the very least, a brown paper bag to blow into. When, I wondered fretfully, does a sharp intake of breath become a formal interference in judicial proceedings? Was I on the brink of contempt of court for excessively heavy breathing?
To prevent Mr Justice Green evicting me (and, to be fair, the hundred other junior doctors who were also hyperventilating), I wrestled control of my autonomic nervous system by ‘letting it all out’ in a furious scribble. The resulting doodle looked like this:
Words, clearly, had failed me. And in many ways, they still do. However, as someone who has advocated strongly for a strategy of de-escalation and reconciliation to avert next month’s strike, might I suggest to Jeremy Hunt, Danny Mortimer, Charlie Massey and all the other individuals whose actions the Department of Health QCs so cleverly defended this week, that the smartest way to resolve a viciously intractable industrial dispute might – just might – not be to look a High Court judge in the eye and swear blind that the tens of thousands of doctors who went on strike against imposition did not, in fact, believe in imposition.
Because really, as you well know, grown ups don’t believe in tooth fairies, Father Christmas or Ally McBeal’s dancing courtroom babies and frankly – on this occasion – you’ve taken Department of Health spinning from the tactically savvy to the utterly ludicrous. Not to mention incited every doctor in the country to view you with contempt and disbelief. Just how, precisely, does such an inflammatory defence assist the one and only thing that matters at this stage, which is resolving this conflict? Does the big picture mean nothing to you?
I await next Wednesday’s verdict with interest.