Health secretary retreats from claim he has right to impose contract – but threat may mean he has misled parliament

Jeremy Hunt is under mounting pressure over his handling of the junior doctors’ dispute after he unexpectedly abandoned his repeated threat to impose a new contract on them – a move that has led to four strikes by doctors so far.

Hunt’s change of tack, which comes as a high court legal challenge to him over the dispute begins today, has led Labour to claim that he may have misled parliament over the contract imposition because he has spoken of the threat repeatedly in front of MPs in the House of Commons.

Junior doctors are due to strike for a fifth time on 26 and 27 April, this time opting out of all care, including emergency treatment.

The health secretary has retreated from his claim that he has the right to exercise what he called the “nuclear option” of imposition. His U-turn is revealed in a letter from the government’s lawyers that was seen by the Guardian and confirmed by his own Department of Health.

Hunt’s insistence now that he is merely “introducing” the contract has prompted questions about his negotiating tactics during the seven-month dispute and whether he has been in breach of his powers by using the threat. He regularly outlined in Commons debates, speeches and interviews the government’s intention to compel junior doctors to accept changes that have provoked anxiety across the medical profession and NHS.

Labour said government policy on the dispute was now “in complete disarray.” Heidi Alexander, the shadow health secretary, said: “Government lawyers appear to be trying to rewrite history in an attempt to get Jeremy Hunt out of what could be a very significant legal problem.

“The reason why this is so significant is that junior doctors have entered into a period of unprecedented industrial action off the back of his decision to impose the contract. If Jeremy Hunt is now claiming he isn’t imposing the contract, then this also raises the prospect that he has misled parliament.”

Norman Lamb, a Liberal Democrat health minister under Hunt until last May, said: “It appears that this is now in a state of shambles and that the secretary of state is in a hole and can’t move forward on this. The government’s latest legal position seems to show that Jeremy Hunt had no power to impose [the contract] all along.

“This is quite a dramatic change from the assumption that people have had that the health secretary is able to force junior doctors to abide by this contract. If he’s changed the language from ‘imposing’ to ‘introducing’, it may be that there’s no way the government can continue to try to get this contract implemented. It looks like the contract is dead in the water, that it has no life in it, like the dead parrot in Monty Python,” said Lamb, who was an employment lawyer before becoming an MP.

The fact that Hunt is no longer claiming to be imposing the contract is outlined in a five-page letter sent last Friday by the Government Legal Department to Bindmans, the solicitors acting for a company called Justice for Health, formed by five junior doctors. They are going to the high court on Monday to formally initiate a judicial review of the lawfulness of Hunt’s right to impose the contract, which will make Saturday part of a trainee medic’s usual working week for the first time.

In the letter, government solicitors state that Hunt has decided to “proceed with the introduction of a new contract” and that he is legally entitled to do so under the NHS Act 2006. It does not mention “imposition” at any point or cite any of Hunt’s countless uses of that threat. The letter dismisses the junior doctors’ lawsuit as “simply misconceived”.

Asked whether the health secretary was imposing or introducing the contract, a DoH spokeswoman confirmed that it was the latter. “New terms are being introduced for junior doctors as their current contract expires – because agreement could not be reached with the BMA. The secretary of state decided the contract should be introduced based on advice from David Dalton,” she said. Dalton is the chief executive of Salford Royal hospital trust, who Hunt recruited in January as the chief negotiator for NHS Employers in peace talks with the doctors’ union, which broke down in early February.

In a letter to the government’s lawyers, Saimo Chahal QC, the five junior doctors’ solicitor, said Hunt was “clinging to the fiction that he had a legal power to make this decision” to impose the contract. She added: “If the secretary of state was pretending to have a decision-making power but in fact only had the power to make recommendations to NHS bodies and others employing junior doctors, the secretary of state will have acted unlawfully by purporting to exercise a power he never had.”

Hunt is likely to face questions in parliament on Monday as a result of his volte-face. Dr Francesca Silman, one of the five junior doctors taking the legal action, said: “Is Jeremy Hunt wilfully misleading the nation by suggesting he has the power to impose a contract, or is he incompetent and leading doctors to strike unnecessarily? Junior doctors have been asking these questions for months and we are desperate for an answer.”

Political pressure on Hunt over the dispute is also building inside his own party. A well-placed Conservative MP said that Tory ministers and MPs, especially women, were privately appalled that the DoH’s own equality impact assessment of the new contract admits that it will discriminate against female doctors, including lone parents and those working part-time. “The fear is that the acknowledged gender discrimination will damage our standing with female voters,” said the MP.