UK prime minister did not misinterpret ministerial code on bullying to back cabinet colleague, court rules

By on 06/12/2021 | Updated on 02/02/2022
30/07/2020. Yorkshire, United Kingdom. Boris Johnson North Yorkshire Police visit. The Prime Minister Boris Johnson accompanied by the Home Secretary Priti Patel visit North Yorkshire Police HQ. Picture by Andrew Parsons / No 10 Downing StreetPicture by Andrew Parsons / No 10 Downing Street

UK prime minister Boris Johnson has successfully fought off a court challenge to his decision to back one of his cabinet ministers over claims that they bullied civil servants.

In a case brought by the FDA trade union, which represents senior civil servants in Great Britain, judges decided that Johnson had not misinterpreted the term “bullying” in the code that covers the behaviour of ministers in order to protect the home secretary Priti Patel.

However, judges did conclude that the application of the code was something that courts could decide on, and that the prime minister must correctly apply the concepts of bullying, discrimination and harassment when determining complaints against ministers.

The case was launched by the FDA union after Johnson decided not to remove Patel, despite his independent adviser on the ministerial code determining the rule had been broken.

Sir Alex Allen decided that Patel had “not consistently met the high standards required by the ministerial code of treating her civil servants with consideration and respect”.

He added: “Her approach on occasions has amounted to behaviour that can be described as bullying in terms of the impact felt by individuals. To that extent her behaviour has been in breach of the ministerial code, even if unintentionally.”

Despite this, Johnson decided that Patel had not breached the code as she had been unaware of the impact of her actions. Allen, whose investigation began after the UK Home Office permanent secretary quit alleging bullying and smears by Patel, resigned from his role as adviser on the code following this decision.

The FDA then launched a review into Johnson’s decision, seeking to determine whether he had properly interpreted the phrase “bullying” in the code by including the question of intent in his decision.

‘An important step forward’

In the judgment passed down on Monday morning, Lord Justice Lewis and Mrs Justice Steyn concluded that the ministerial code had not been misinterpreted in the way the FDA had suggested.

The ruling stated: “In considering the allegations in the present case, the prime minister did not proceed on the basis that conduct would not amount to bullying contrary to paragraph 1.2 of the ministerial code if the minister concerned was unaware of, or did not intend to cause, offence or harm. Consequently, there was no misdirection as alleged. For that reason, this claim is dismissed.”

However, the judgment did reach a number of conclusions that the FDA said represented “an important step forward in the battle to ensure that ministers are held to account for their behaviour in the workplace”.

These included that the rules against bullying in the ministerial code can be reviewed by the courts, that the prime minister must correctly apply those concepts when determining complaints against ministers, and that it is not an excuse for bullying under the code that a minister does not intend or is not aware of the upset and distress caused by their actions.

Responding to the judgement, FDA general secretary Dave Penman said: “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.”

This means that ministers will not be able to use intent as a “get out of jail free card” for unacceptable behaviour, Penman said.

The FDA also highlighted that the prime minister received the findings of a Cabinet Office review into Patel’s behaviour in July 2020, alongside Allan’s advice, but did not make a decision until November 2020.

Penman said that this “raises serious concerns over whether the government has fulfilled its duty of candour”, and added: “More importantly, however, it demonstrates that the prime minister, who is also the minister for the civil service, appears to have sought to avoid making a decision, even when civil servants were relying on him for justice.”

About Richard Johnstone

Richard Johnstone is the executive editor of Global Government Forum, where he helps to produce editorial analysis and insight for the title’s audience of public servants around the world. Before joining GGF, he spent nearly five years at UK-based title Civil Service World, latterly as acting editor, and has worked in public policy journalism throughout his career.

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