Ministerial code ‘not about protecting civil servants’ rights’, PM’s lawyer says

High Court is told Boris Johnson’s decision on Priti Patel bullying probe was a “matter of judgment for him”
Boris Johnson was wrong to say Priti Patel did not break the ministerial code, the FDA union says. Photo: Benjamin Wareing/Alamy Live News

By Jim Dunton

18 Nov 2021

High Court judges examining Boris Johnson’s decision to stand by home secretary Priti Patel after a report found she bullied officials have been told that the ministerial code is not about protecting civil servant’s rights.

The FDA union is challenging the prime minister decision that Patel’s conduct did not amount to a breach of the code, even though his own adviser on ministerial interests – Sir Alex Allan – concluded that it did. Supporting the finding would have required Patel to resign or the PM to sack her.

The union, which represents senior officials, wants Johnson’s decision – which prompted Allan’s resignation last November – to be declared wrong in law. It argues that Johnson has a duty to ensure civil servants can work with ministers without fear of being bullied or harassed, and that his decision damaged officials’ confidence in their ability to challenge unacceptable behaviour.

But a written submission to the High Court from Johnson’s QC, Sir James Eadie, argued that the ministerial code is a “political document” that does not create or impose any legal duties on ministers or the prime minister.

“Rather, it is a political statement by the prime minister as to how he intends to operate his relationship with his ministers and the standards he will judge them by when considering whether they retain his confidence,” he said.

Eadie said the code is “not about protecting the rights of civil servants” and that officials have recourse to rights under employment law.

On the first day of a scheduled two-day judicial review hearing yesterday, FDA lead counsel Tom Hickman QC said the prime minister’s decision based on Allan’s findings had been a “misdirection of law”.

When Johnson decided that Patel was not in breach of the ministerial code, Downing Street pointed to the home secretary being unaware of the impact of her behaviour on some staff, and that she had apologised for “inadvertently upsetting” people she was working with.

Hickman told the hearing that “any fair reading” of Johnson’s words must mean the prime minister considers inadvertent bullying is not bullying. He said such a conclusion represents a “misdirection of law”.

Hickman said there is a risk of a “double standards” if the ministerial code only protects staff from bullying if it is “accompanied by an awareness or intention” on the part of a minister, when general standards on bullying and harassment are tougher.

The QC said in a written submission that although the prime minister is the ultimate arbiter on issues related to the ministerial code, the code does not mean whatever he chooses it to.

The hearing continues.

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