The FDA civil service union has lost its legal challenge to Boris Johnson’s decision that home secretary Priti Patel did not break the ministerial code, even though a report found she had bullied Home Office staff.
The union argued that the prime minister was responsible for a “misdirection of law” in concluding that Patel had not broken the ministerial code in the face of evidence of his own adviser on ministerial standards, Sir Alex Allan.
It said the PM had a duty to ensure civil servants could work with ministers without fear of being bullied or harassed, and that his decision damaged officials’ confidence in their ability to challenge unacceptable behaviour.
High Court judges Lord Justice Lewis and Mrs Justice Steyn published their decision on the case today, following a two-day hearing last month. They ruled that Johnson had not “misinterpreted” the ministerial code and dismissed the FDA’s challenge.
However the union said the case – which focused on Johnson’s decision in relation to the Allan report, rather than on Patel’s conduct towards her staff – had set important markers that represented a “major victory” for civil servants.
The judgement endorsed the prime minister’s right to decide whether a minister or secretary of state had broken the ministerial code. But it also said the prohibition on bullying, discrimination and harassment contained in the ministerial code is a matter that can be challenged in the courts.
The judgement also found that a minister could not excuse themselves from bullying accusations under the code by saying they had not been aware of the impact of their actions, or that any impact and distress had been unintentional. After the publication of Allan’s report, Patel said it had never been her intention to “cause upset to anyone”.
Determining that Patel had breached the ministerial code would normally have required the home secretary to resign, or the prime minister to sack her.
FDA general secretary Dave Penman said the judgement was “an important step forward” in ensuring ministers were 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,” Penman said.
“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.”
Penman said that the judgement meant ministers could not use a “get out of jail free” card of claiming their conduct was unintentional if they were found to have bullied or harassed staff. It also underscored that issues related to the ministerial code could be challenged in court. The prime minister’s legal team had argued that the code was a political document.
“This may well be the most critical aspect of the judgment,” Penman said. “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.
“All along the government has argued that the ministerial code did not set legal standards enforceable by a court and did not impose any legal obligations on the prime minister in relation to its interpretation. This has been rejected by the court.”
Investigations into Patel’s conduct were sparked by the resignation of Home Office permanent secretary Sir Philip Rutnam in February last year. However Allan’s findings were only published in November 2020, when Johnson announced his decision that Patel had not breached the ministerial code and Allan resigned.
Penman said timelines released to the High Court as part of the FDA’s challenge had revealed Allan’s report and his advice that the code had been breached were provided to No.10 in July 2020.
“He had everything he needed to make a decision, yet sat on it for nearly five months until he made his decision,” Penman said of the prime minister.
“This timeline has only fully emerged after the case was heard and raises serious concerns.
“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.”
Lord Jonathan Evans, chair of the Committee on Standards in Public Life, said last year that the failure to publish Allan’s report on Patel’s conduct promptly had contributed to an erosion of public trust in the government’s commitment to propritety.
A government spokesperson said: “We welcome the fact the court has dismissed this case.
“The judgment supports our long-standing position that the prime minister is the arbiter of the code and ministers must retain the confidence of the prime minister to remain in office.”
This story was updated at 16:00 on 6 December 2021 to include a government response