The FDA union has lost a High Court challenge this morning over Prime Minister Boris Johnson’s decision to back Home Secretary Priti Patel following accusations of bullying.
The union had brought a judicial review over the Prime Minister deciding to go against the findings of his then adviser on ministerial standards in order to back the Home Secretary.
In an investigation into Patel’s behaviour, published in November last year, 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.”
Johnson, the arbiter of the ministerial code, said the Home Secretary was “unaware” of the impact she had and he was “reassured” 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. But at a hearing last month, lawyers for the FDA, which represents senior public servants, argued Mr Johnson “misinterpreted” the term “bullying” in the ministerial code when deciding if Patel’s treatment of civil servants breached its standards.
They alleged he made a “misdirection of law” in reaching his decision. Lawyers for Johnson argued that the FDA’s claim was “not justiciable” and that there had been “no error of law”.
They 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 “not regulated by law”.
The code was 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.
Sir Alex left his role in Downing Street after Mr Johnson contradicted his advice.Following the publication of his report, Ms Patel issued an “unreserved, fulsome apology” and said there were “no excuses” for what happened.
Responding to the judgement, FDA General Secretary Dave Penman 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.”
Despite the result not going in its favour, the Penman said “the case has important implications for the protection of civil servants in the future.”
He continued: “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.”
T”he Court 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’, he concluded.