Judges dismiss judicial review challenge over interpretation by Prime Minister of ministerial code in Priti Patel "bullying" claims

A Divisional Court has rejected a judicial review challenge brought by the FDA union over the Prime Minister’s decision that Home Secretary Priti Patel did not break the Ministerial Code in her treatment of civil servants.

In FDA, R (On the Application Of) v The Prime Minister And Minister for the Civil Service [2021] EWHC 3279 (Admin) the FDA, which represents civil servants, sought a declaration that the Prime Minister had misinterpreted paragraph 1.2 of the Ministerial Code.

That paragraph provides that “harassing, bullying or other inappropriate or discriminating behaviour wherever it takes place is not consistent with the Ministerial Code and will not be tolerated”.

The background to the case was that following allegations of inappropriate behaviour by the Home Secretary towards civil servants, the Prime Minister asked the Cabinet Office to investigate, and he sought advice, to determine whether the Home Secretary's behaviour was consistent with the Ministerial Code.

Sir Alex Allan, the PM’s former adviser on ministerial standards, had advised Boris Johnson that the Home Secretary had “not consistently met the high standards required by the Ministerial Code of treating her civil servants with consideration and respect. Her approach on occasions has amounted to behaviour that can be described as bullying in terms of the impact felt by individuals”.

He added that, to that extent, her behaviour had been in breach of the Ministerial Code, “even if unintentionally”.

Sir Alex said, however, that this conclusion needed to be seen in context. “There is no evidence that she was aware of the impact of her behaviour, and no feedback was given to her at the time.”

The Prime Minister subsequently decided that the Home Secretary had not broken the code.

The claimant, the FDA, contended that, in dealing with the matter, Boris Johnson misinterpreted paragraph 1.2 as he considered that conduct would only constitute bullying if the person concerned was aware that his or her conduct was upsetting or intimidating.

The union argued that whether conduct amounted to bullying depended upon the impact upon the individual concerned and it was not necessary for the person carrying out the conduct to intend or be aware of the harmful consequences of his or her actions.

The FDA stressed that it was not asking the Divisional Court to express any view on whether the Home Secretary, in fact, did any of the things she was alleged to have done nor as to what sanctions, if any, would be appropriate. Those, the claimant accepted, would be matters for the Prime Minister if it succeeded in its claim and if the Prime Minister decided to re-open the matter.

Boris Johnson contended that:

• Decisions of the Prime Minister concerning compliance with the Ministerial Code are not justiciable, that is they raise matters not suitable for adjudication by a court.
• The statement announcing the Prime Minister's decision, read properly, did not demonstrate the misinterpretation of the Ministerial Code alleged by the claimant

Lord Justice Lewis and Mrs Justice Steyn found that:

1. The proper interpretation of the relevant phrase in paragraph 1.2 was a justiciable issue, that is, it was an issue capable of being the subject of judicial determination.
2. Conduct which was offensive, intimidating, malicious or insulting could fall within the scope of “bullying” in paragraph 1.2 of the Ministerial Code whether or not the person concerned was aware of, or intended to cause, offence or harm.

The Divisional Court said the real question in this case was whether or not the Prime Minister properly interpreted the word “bullying” when dealing with the allegations.

Lord Justice Lewis and Mrs Justice Steyn said: “The decision on the allegations is contained in a government statement. It is important to read the government statement in full and in context. We have considered the government statement carefully.

“We have concluded that, read in full and in context, the statement does not demonstrate that paragraph 1.2 of the Ministerial Code was misinterpreted in the way suggested by the claimant. For that reason, this claim is dismissed.”

Responding to the ruling, FDA General Secretary Dave Penman insisted that the judgment represented “a major victory” for the union. He said: “Today’s judgement is an important step forward in the battle to ensure that ministers are held to account for their behaviour in the workplace.

“The Court has determined that the Prime Minister did not acquit the Home Secretary of bullying, and that he did not reject the findings of Sir Alex Allan that her conduct amounted to bullying. This will bring some comfort to those civil servants who were brave enough to come forward and give evidence to the investigation about the Home Secretary’s conduct. While the Court decided that the Prime Minister was entitled not to dismiss the Home Secretary, the case has important implications for the protection of civil servants in the future.

“Crucially, the Court has agreed that the behaviour falls within the definition of bullying set out in the Code, whether or not the perpetrator is aware or intends it. The Prime Minister’s decision was widely interpreted at the time as exonerating the Home Secretary because she stated she was unaware of the impact of her behaviour, even though her conduct included shouting and swearing at civil servants. The Court agreed with the FDA’s arguments that it is the impact of behaviour that matters, so there is no ‘get out of jail free’ card for those who say it was not their intention, and this judgment reinforces that premise.”

Penman added that the Divisional Court had also determined that while the Prime Minister was the ultimate arbiter of the code, this did not mean that he could give any interpretation he chose of the words in it. “This is critical, as the government argued in court that the Prime Minister could decide what the words in the Code meant, uninfluenced by external standards or definitions of bullying. The court rejected this argument, and aligned bullying in the Code with how it is understood in workplaces across the UK.”

The FDA General Secretary said: “There cannot be one rule for ministers and one rule for the rest of us when it comes to bullying and harassment, and this judgment confirms that the Prime Minister cannot simply make up whatever definitions or standards he chooses.”