Penman: High Court ruling on Patel case sets an important precedent to protect civil servants

FDA's judicial review has made it clear the ministerial code is more than just a political document, but the case shows how much change is needed

By Dave Penman

07 Dec 2021

The Royal Courts of Justice is an impressive place. I wondered, as I roamed the corridors looking for our court, whether it was built to intimidate or just to recognise the significance of what goes on within the walls.

I landed on the ‘intimidate’ theory as I scrambled my belongings together, curtseyed, tugged my forelock, mumbled apologies to “your honour” and “me lud”, and was ejected from the court. If anyone can tell me how to stop an iPad ringing with FaceTime calls – despite being on airplane mode – I’d be very grateful. Thankfully, the decision had already been handed down and we were just waiting on the paper copies. It was already online and the calls were from the press.

On the face of it, we lost in our judicial review, but the judgement is much more complex than that. As we said yesterday, it is actually a significant step forward in holding ministers to account for their conduct.

Firstly, and most importantly, for the civil servants who are at the heart of this case, those that were subject to the bullying behaviour, the court makes clear that the prime minister did not acquit the home secretary of bullying. Indeed, their reasoning for rejecting the judicial review is based on that premise. Instead, the prime minister was taking account of all the factors and essentially making a decision about his future confidence in her.

We take issue with that, as the breaking of the code and punishment for it should be two separate things. In fact, since this case, Matt Hancock was found to have broken the code over the declaration of ministerial interests, but faced no sanction. If that was actually in the prime minister’s mind as the court has concluded, he should have been clearer at the time.

The court was not finished there though. Their first consideration was whether the ministerial code is justiciable. The government argued that it is an entirely political document, with the prime minister free to make up his own standards and definitions – he can make one decision one day and an opposite one the next.

This is a critical point and one that the government relied on heavily in its defence, but the court was crystal clear. The ministerial code is many things, cabinet manual and standards document among them. That some bits are justiciable and some not is, the court concluded, entirely appropriate. When it comes to bullying and harassment, these are matters that are determined by courts up and down the land for the likes of you and me. As the court made clear, when the then-prime minister Theresa May introduced the paragraphs relating to bullying and harassment in 2018, she said in the foreword that parliament and Whitehall are “places of work too, and exactly the same standards and norms should govern them as govern any other workplace.”

"The prime minister must have regard to these norms when making decisions and can now be challenged on them. Whether he will, of course, is another matter"

This decision has significant implications for the future. The prime minister must have regard to these norms when making decisions and can now be challenged on them. Whether he will, of course, is another matter.

The court also made clear that lack of intent is not a get out of jail free card. They were clear that behaviour could be described as bullying and fall within the provisions of Paragraph 1.2 of the code “whether or not the perpetrator is aware or intends that the conduct is offensive”.

Again, this is significant as the prime minister, in deciding that the home secretary had not breached the code, made much of her lack of intent. Whether you accept that you can unintentionally shout and swear at people or not, the judgement makes clear that it is the impact of behaviour, not the intent, that matters.

The case has also exposed that the prime minister sat on the report and refused to make a decision for what we can only assume, in the absence of any explanation, was political expediency. When announcing the investigation in parliament on 2 March 2020, Michael Gove, then minister for the Cabinet Office, said it should be concluded quickly as “justice delayed is justice denied”. By his own definition therefore, the prime minister denied justice to those who were brave enough to come forward and give evidence.

We now know that the prime minister had a draft of the report in May 2020, two months after the investigation was launched. On 31 July 2020, the cabinet secretary provided a submission to the prime minister, including annexes which set out Sir Alex Allan’s advice and the findings from (rather than the totality of) the Cabinet Office investigation report. The prime minister announced his decision on 18 November, as details started to leak following months of questioning as to when it would be concluded.

This whole sorry affair lays bare the inadequacies in the current system. Whilst the civil servants tasked with the investigation and advice have discharged their duties efficiently and with honour, it is inevitably when raw political interest gets a grip of the process that it falls flat.

Any system for investigating bullying and harassment must have the interests of those subject to the abuse of power at its heart. Instead, we have an opaque, politically vulnerable process that the prime minister has made abundantly clear prioritises his own political interests over those who are subject to bullying or harassment.

Parliament has at last recognised that these issues need to be dealt with independently. It is now clear that that is the template the government needs to adopt to protect its own employees in the future.

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