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Johnson did not ‘misdirect’ himself over Ministerial Code when backing Patel

·5-min read

Boris Johnson did not “misdirect” himself over the Ministerial Code when deciding if Priti Patel’s behaviour towards civil servants breached its standards, High Court judges have ruled.

The FDA union, which represents senior public servants, brought a judicial review over the Prime Minister’s decision last year to back the Home Secretary following allegations of bullying.

Lawyers for the union sought a declaration that Mr Johnson had “misinterpreted” the term “bullying” as covered by paragraph 1.2 of the code, arguing he made a “misdirection of law” when reaching his decision.

In ruling released on Monday, Lord Justice Lewis, sitting with Mrs Justice Steyn, dismissed the FDA’s claim.

The judge said: “The question for this court is whether the Prime Minister proceeded on the basis that conduct would not fall within the description of bullying within paragraph 1.2 of the Ministerial Code if the person concerned was unaware of, or did not intend, the harm or offence caused.

“Reading the statement (made by Mr Johnson) as a whole, and in context, we do not consider that the Prime Minister misdirected himself in that way.”

He highlighted judges had not been provided with the details of the allegations made against Priti Patel, but said the court had not been asked to express a view on whether she did the things alleged nor what sanctions, if any, would be appropriate.

In an investigation into Ms Patel’s behaviour, published in November last year, the Prime Minister’s then adviser on ministerial standards, Sir Alex Allan, found she had not always treated civil servants with “consideration and respect”.

He concluded: “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.”

Sir Alex Allan
Sir Alex Allan was Boris Johnson’s adviser on ministerial standards (PA)

Ms Patel previously issued an “unreserved, fulsome apology” and said there were “no excuses” for what happened.

Mr Johnson, the arbiter of the Ministerial Code, said the Home Secretary was “unaware” of the impact she had and he was “reassured” that she was “sorry for inadvertently upsetting those with whom she was working”.

After “weighing up all the factors”, he concluded the code had not been breached.

In Monday’s judgment, Lord Justice Lewis said: “Viewing the statement as a whole and in context, the Prime Minister either accepted that aspects of the conduct of the Home Secretary could be described as bullying, or, at least, did not form a concluded view on that question.

“The statement did not expressly state any disagreement with what Sir Alex is recorded as having found, that is that her approach on occasions could be described as bullying.”

He added: “The statement that the Prime Minister’s judgment was that the ministerial code was not breached is not therefore a finding that the conduct could not be described as bullying.

“Rather, it is either a statement that the Prime Minister does not consider, looking at all the factors involved, that it would be right to record that the ministerial code had been breached, or alternatively, that the conduct did not in all the circumstances warrant a sanction such as dismissal as it did not cause the Prime Minister to lose confidence in the minister.”

Sir James Eadie QC, for the Prime Minister, argued in written submissions for a hearing held last month that the FDA’s claim was “not justiciable” – meaning, the court had no power to determine the matter – and that there had been “no error of law”.

He said the Ministerial Code “does not create or impose any legal duties on ministers or the Prime Minister”, is “not required by law”, and its contents are “not regulated by law”.

The code is a “political document” and “not about protecting the rights of civil servants” who still have access “to all the employment law rights”, the Prime Minister’s lawyer argued.

In Monday’s judgment, Lord Justice Lewis said the issue around the interpretation of the words in paragraph 1.2 in the case was justiciable.

FDA general secretary Dave Penman said in a statement after the ruling that despite the overall dismissal of the union’s claim, the judgment was an “important step forward in the battle to ensure that ministers are held to account for their behaviour in the workplace”.

He 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.”

Mr Penman said Mr Johnson had a copy of the report on Ms Patel in May 2020 but “he sat on that for six full months before a decision on the Home Secretary’s behaviour was dragged out of him”.

He said a “fully independent and transparent” process is needed to investigate allegations of ministerial misconduct.

The union said it will apply for its legal costs to be paid in full by the Government given the findings made in the ruling, despite the overall dismissal, and would consider whether it wished to appeal.

Downing Street said Mr Johnson welcomed the court’s judgment.

“The judgment affirms that appointment and dismissal of ministers is not judiciable and that questions of interpretation of the code, which are inextricably linked with that, may not be judiciable either,” the Prime Minister’s official spokesman said.

“The judgment accepts that most of the code would not be judiciable.”

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