Dave Penman: Why the FDA launched a judicial review over PM’s support for Patel

Boris Johnson’s backing for the home secretary despite evidence of bullying means ministers now have to meet a lower standard of conduct than civil servants. This can’t go unchallenged

By Dave Penman

22 Feb 2021

In the wake of the Me Too movement, with scandal rocking the government, we were told that Theresa May, the then-prime minister, sought to send a clear message that bullying and harassment would not be tolerated. The FDA met with the Cabinet Office to discuss changes to the ministerial code, which would include, for the first time, explicit references to bullying and harassment. This would of course mean such behaviours would be considered a breach of the code.

I was a little cynical at the time, indeed some may say it’s one of my finer qualities. Ministers, I contended, should not need an explicit paragraph of the code to tell them not to bully and harass. As is my style in these meetings, I sought to take an extreme example to make my point. It does not, I said in my best sarcastic tone, say that ministers should not microwave their civil servants, but presumably they don’t need a paragraph in the code to make this clear.

My point was that we were way beyond simply making clear that bullying and harassment wasn’t acceptable, ministers knew this. What we needed was for any enforcement mechanism to have teeth. What would happen, I asked, if a minister who was politically unsackable was found to have bullied staff? Given the lack of a transparent process for investigating and determining these issues, the danger was that a prime minister could block an investigation in the first place, or ultimately ignore the findings. They are solely responsible for both these decisions.

Who knew that witty, sarcastic commentary was only my second most impressive quality behind predicting the future? The debacle over the investigation into the home secretary’s conduct was, therefore, entirely predictable.

As we now know, despite the evidence that the home secretary had bullied civil servants including shouting and swearing at them, the prime minister determined that she had not breached the Ministerial Code, prompting the resignation of his adviser on the code, Sir Alex Allen. In explaining his decision, the prime minister sought to give weight to the home secretary’s assertion that her actions were unintentional.

The Ministerial Code could not be clearer. Not only do we have the paragraph inserted by Theresa May, but also in the foreword to the current version, Johnson chose to highlight this issue, stating that ”there will be no bullying and no harassing…”. However, the consequence of his decision is that the prime minister has determined that intent must be shown for a minister to be in breach of the code.

This is not the case across the civil service. Both the Home Office’s own policy and that of the Cabinet Office state: “Bullying is not about whether the perpetrator of the acts intended them or not, but about the impact on the recipient and how it makes them feel”.

Across the civil service and beyond, bullying and harassment is defined by the consequences of the actions, not the intent of the perpetrator. In her foreword to the code when it was amended, Theresa May said “Parliament and Whitehall are special places in our democracy, but they are also places of work too, and exactly the same standards and norms should govern them as govern any other workplace”.

Our view, therefore, is that the prime minister misinterpreted the Ministerial Code and that the references to harassment, bullying and discrimination refer to workplace standards upheld across government and beyond. That is why we have sought a judicial review of this decision.

If the prime minister’s decision stands, it will have a number of profound consequences. Firstly, ministers will be held to a different and lower standard of conduct than civil servants. Secondly, ministers may use the interpretation of intent as a mechanism for avoiding the consequences of their conduct in the future. Thirdly, it potentially creates confusion in the civil service – if a Home Office civil servant is found to have bullied a colleague, can they now claim that intent should be a factor in this determination as it was for the home secretary?

And finally, this whole sorry saga has fatally undermined trust in the process for addressing complaints against ministers. This was already damaged by public statements of support from the prime minister before he had seen any evidence and by his delay in making a decision, which was only forced from him by inevitable leaks. It will come as no surprise, therefore, that recent polls we conducted of two of the groups of members who most frequently have contact with ministers, Senior civil servants and fast streamers, showed that just under 90% said they had no confidence in the current process.

This is why we sought to avoid a judicial review and offered the government a way out. Amend the Ministerial Code to reflect the definition of bullying that applies in the civil service and we would not proceed. Unfortunately, that offer was rejected and so it is now in the hands of our learned friends.

I hope, even at this late stage, that the government takes us up on our offer. Because whatever the outcome of the legal arguments and interpretations, it is this damage to confidence that should really worry the prime minister, who is after all, also minister for the civil service.

Dave Penman is the general secretary of the FDA union.

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