How the Government both won and lost the Priti Patel High Court bullying case

6th December 2021

Today judgment was handed down in the case brought by the civil service union the FDA in respect of the Prime Minister’s determination that the bullying of the Home Secretary had not broken the Ministerial Code.

On the face of it, the government won the case.

And so this is what the press reported (and that is what time-poor news desks have published on their news sites):

#Breaking The FDA union has lost a High Court challenge over Prime Minister Boris Johnson’s decision to back Home Secretary Priti Patel following accusations of bullying

— PA Media (@PA) December 6, 2021

But.

There are different ways that a government can win a case like this – and a closer look at the judgment shows that in substance this is not a welcome decision for the government at all.

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First, we need to know what the case was – and was not – about.

The case was not about deciding whether the Home Secretary is a bully or not – that was not what the court was being asked to determine, and the detailed evidence about bullying was not put before the court:

And, as that was not the question before the court, then the hot takes that the court has ‘cleared the Home Secretary of bullying’ are not and cannot be true.

The primary question before the court was whether it was open to the Prime Minister, given the information before him, to determine that there had not been a breach of the Ministerial Code.

The court found that, on this occasion, the determination that there had not been a breach of the Ministerial Code was one of the determinations open to the Prime Minister on the information before him.

But in reaching that conclusion the court made a number of points that were against the government – and these points may be significant in future cases.

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First, the court held that the Prime Minister’s determinations of the ministerial code were, in principle, amenable to judicial review by the courts.

The government made a spirited attempt to argue that the Prime Minister’s determinations of the ministerial code were not ‘justiciable’ – that the very subject matter was a no-go area for the High Court.

The court deal with justiciability in paragraphs 25 to 43 of a 61 paragraph judgment – about a third of the decision.

The court accepted that not every determination of the Code may be judicially reviewed.

And, of course, those judicial reviews which are heard by the court may not succeed (as with this case).

But there is nothing stopping a similar case on different facts succeeding just because of the subject matter.

That the court held that, in principle, prime ministerial determinations of the Ministerial Code are amenable to judicial review is a boon for transparency and accountability.

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Once the court had dismissed the government’s attack on justiciability, it turned to whether the Prime Minister had misdirected himself in applying the Code.

Here the key paragraph of the Code is:

“1.2 Ministers should be professional in all their dealings and treat all those with whom they come into contact with consideration and respect. Working relationships, including with civil servants, ministerial and parliamentary colleagues and parliamentary staff should be proper and appropriate. 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 information before the Prime Minister was an advice from Sir Alex Allan, the independent adviser on the Code.

His advice included the following:

“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. This conclusion needs to be seen in context. There is no evidence that she was aware of the impact of her behaviour, and no feedback was given to her at the time.”

Having considered this advice, the Prime Minister’s conclusion was:

“Sir Alex’s advice found that the Home Secretary had become – justifiably in many instances – frustrated by the Home Office leadership’s lack of responsiveness and the lack of support she felt in DfID three years ago.

“He also found, however, that the Home Secretary had not always treated her civil servants with the consideration and respect that would be expected, and her approach on occasion has amounted to behaviour that can be described as bullying in terms of the impact felt by individuals.

“He went on to advise, therefore, that the Home Secretary had not consistently met the high standards expected of her under the Ministerial Code. 

“The Prime Minister notes Sir Alex’s advice that many of the concerns now raised were not raised at the time and that the Home Secretary was unaware of the impact that she had.

“He is reassured that the Home Secretary is sorry for inadvertently upsetting those with whom she was working. He is also reassured that relationships, practices and culture in the Home Office are much improved.

“As the arbiter of the code, having considered Sir Alex’s advice and weighing up all the factors, the Prime Minister’s judgement is that the Ministerial code was not breached.”

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The FDA’s claim was that, given Allan’s advice, this was not a conclusion that the Prime Minister could have legally made.

Here paragraph 58 of the judgment is important about the Prime Minister’s conclusions:

In other words: because the Prime Minister did not say Patel was not a bully, it must be that he either accepted Allan’s advice or did not form his own view.

Had the Prime Minister explicitly rejected Allan’s advice that it was bullying then it would have been a different legal situation.

The judgment then goes on in paragraph 59 to the other factors considered by the Prime Minister – it is not a paragraph easy to follow in one go, and may require re-reading:

The essence of the paragraph is in the sentences:

“In that context, the statement that the Prime Minister’s judgement 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.”

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The Prime Minister can consider himself very lucky to have won this case.

Once can quite imagine a differently constituted court (or the Court of Appeal) taking a harder view against the Prime Minister

The FDA, in turn, are right to aver the following:

“The High Court has decided:

 – That the prohibition on bullying, discrimination and harassment in the Ministerial Code is justiciable in the Courts.

– That the Prime Minister must correctly apply those concepts when determining complaints against ministers.

– That it is not an excuse for bullying under the Code that a minister does not intend or is not aware of the upset and distress caused by their actions.

“These findings vindicate the claim brought by the FDA and represent a clear rejection of the idea that there are different standards for ministers than for civil servants. The FDA is applying for its full costs of the claim to be paid by the government.

“In an unexpected development, the Court also found that the Prime Minister had not acquitted the Home Secretary of bullying in his decision in November 2020. The Court has held that the Prime Minister must have accepted the advice of Sir Alex Allan that the Home Secretary had engaged in bullying (or at least that he did not reach any concluded view on the matter).”

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Whichever government lawyer drafted the conclusions of the Prime Minister ultimately won this case for the government.

A more clumsily worded statement would have meant that even this court would have decided in favour of the FDA.

The government won – just about.

But now there is a High Court decision holding that determinations of the Ministerial Code are justiciable and that the Prime Minister must act properly in applying the Code to particular cases.

The case was also decided on the bases that the Home Secretary was not exonerated of the allegations and that the lack of intention did not mean it was not bullying.

The FDA must be tempted to have one more heave – and to take this to the Court of Appeal (though there would be a risk that it could lose the gains it has made).

The government is in the harder appeal position – for it can hardly appeal a case which it has ‘won’ and so it is stuck (for now, unless the FDA appeals) with the finding of justiciability and other points made by the court.

So this is a good example of a case which both sides can be seen to have lost – but one in which both sides can also be seen as having won.

And the more significant victory, for transparency and accountability, is that of the FDA.

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