A union has lost its High Court challenge against Boris Johnson’s decision to back the home secretary after she was accused of bullying civil servants, finding that he had not misinterpreted rules governing ministers’ behaviour.
The FDA union, which represents senior Whitehall staff, initiated the judicial review after the Prime Minister decided to keep Priti Patel in post, despite claims that she had broken the ministerial code.
It accused Johnson of misinterpreting the definition of bullying under the code, which sets out the standards expected of ministers and how they conduct their duties.
The case centred around how Johnson interpreted the statement, “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 purpose of the judicial review was not to determine whether or not Patel had bullied staff.
When allegations of bullying against Patel emerged in 2020, Johnson sought advice from Sir Alex Allan, the independent adviser on ministers’ interests.
Guidance from Sir Alex read: “My advice is that the home secretary has 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. To that extent her behaviour has been in breach of the ministerial code, even if unintentionally.”
After the outcome of an inquiry into Patel’s behaviour was published, Patel issued an apology which stated: “I have clearly upset people in the past and on reflection – and I have had time to reflect upon this as well– looking at what has been published today on the report, there is no question I’m absolutely sorry for the upset that has been caused.”
However, a government statement issued after Sir Alex’s findings were published stated that the Prime Minister was “reassured that the home secretary is sorry for inadvertently upsetting those with whom she was working” and had determined that the ministerial code had not been breached. Patel therefore remained in post.
The FDA argued that in finding that the ministerial code had not been breached, Johnson had misinterprested the meaning of bullying. However, the High Court rejected this argument.
The High Court judgment said that it is important to read the government’s statement on the matter “in full and in context”, which demonstrates that the ministerial code was not misinterpreted in the way suggested by the FDA.
The judgment says: “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.”
The High Court also ruled that decisions taken under the ministerial code can be challenged in the courts.
A step forward
FDA general secretary Dave Penman said: “Today’s judgment is an important step forward in the battle to ensure that ministers are held to account for their behaviour in the workplace.
Today’s judgment is an important step forward in the battle to ensure that ministers are held to account for their behaviour in the workplace” – Dave Penman, FDA
“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.
“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 welcomed the ruling that decisions made under the code can be challenged.
“This may well be the most critical aspect of the judgment. It means that the Prime Minister’s decisions on those standards can be challenged if they are deemed to be unlawful and, like everyone else, he has a duty to comply with the law,” he said.