06 December 2021

Union loses legal challenge over Johnson backing for Patel amid bullying claims

06 December 2021

A union representing senior civil servants has lost a High Court challenge over Boris Johnson’s decision to back Priti Patel following accusations of bullying.

The FDA union brought a judicial review over the Prime Minister’s decision last year to go against the findings of his then adviser on ministerial standards in order to back the Home Secretary.

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

Lord Justice Lewis concluded that Mr Johnson had not misdirected himself as to the provisions of the Ministerial Code when reaching his decision.

We do not consider that the Prime Minister misdirected himself in that way

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.”

FDA general secretary Dave Penman said: “Whilst we are disappointed in the final judgment, there is a lot here that helps us protect civil servants from the conduct of ministers and makes clear that in future the Prime Minister has to have regard to the law of the land when he makes these decisions.”

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 is also Minister for the Civil Service and he has responsibility not only to his own ministers but also to the civil servants who bravely raised these concerns about the Home Secretary,” he added.

“We will now reflect on this judgment and consider whether we wish to appeal.”

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

In an investigation into Ms 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.”

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.

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 Ms Patel’s treatment of civil servants breached its standards.

They alleged he made a “misdirection of law” in reaching his decision.

Lawyers for Mr 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 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.

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