Boris Johnson strayed from ‘objective meaning’ of bullying to back Priti Patel, High Court told

FDA union argues prime minister made ‘misdirection of law’ by going against findings of adviser

Lizzie Dearden
Home Affairs Correspondent
Wednesday 17 November 2021 20:05
Bullying inquiry found Priti Patel ‘broke the rules for ministers’

Boris Johnson deviated from the “objective meaning” of bullying to back Priti Patel over her alleged behaviour towards civil servants, the High Court has been told.

The prime minister found that the home secretary had not breached a code that sets standards of behaviour for government ministers last November.

A statement said Mr Johnson had noted “that the home secretary was unaware of the impact that she had” and was “sorry for inadvertently upsetting those with whom she was working”.

Sir Alex Allan, an independent adviser who found Ms Patel had breached the ministerial code, resigned after the prime minister rejected his report’s conclusions.

The FDA union, which represents senior public servants, has launched a legal challenge asking the High Court to “declare that the prime minister misinterpreted the term bullying in the ministerial code”.

Tom Hickman QC, representing the FDA, told a hearing at the Royal Courts of Justice that it was a “misdirection of law” to suggest bullying has to be deliberate.

In written submissions to the court, he added: “Without any explanation, the defendant [Mr Johnson] departed from the civil service definition of bullying.”

Mr Hickman said the ministerial code did not “mean whatever he chooses it to mean, words have objective meaning”.

The barrister compared the prime minister’s position to the nursery rhyme character Humpty Dumpty, quoting the lines from Lewis Carroll's novel Through The Looking Glass: “When I use a word ... it means just what I choose it to mean - neither more nor less.”

In the report on Ms Patel's behaviour, published in November last year, Sir Alex 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 Hickman said the FDA was concerned that the prime minister’s response had “significant implications” and could create a double standard where ministers are subject to more lenient rules.

He pointed to words added to a ministerial code foreword written by Theresa May in 2018, which said “exactly the same standards and norms” should govern Whitehall as any other workplace.

Boris Johnson “misinterpreted” the term “bullying” in the ministerial code when deciding if Priti Patel’s treatment of civil servants breached its standards, the High Court has been told

The barrister argued that civil servants would be “under-protected” if subjected to Mr Johnson’s interpretation that bullying must be done intentionally or an awareness of its harmful effects.

“The ministerial code would be substantially undermined as a policy document guiding the conduct of ministers, since its meaning would be no more and no less than the subjective opinion of the prime minister,” Mr Hickman said.

“The defendant’s view deviates from an essential,minimum, aspect of the protection afforded to civil servants under the government’s own policies.”

The court heard that some of the FDA’s members were directly involved in the investigation of the home secretary, and the former Home Office permanent secretary Sir Phillip Rutnam, whose resignation prompted the probe.

The union is not asking the court to “express any view” on whether she “committed the actions alleged against her” or “the sanctions, if any, that should follow from her actions”.

In written submissions, Sir James Eadie QC, for the prime minister, argued the FDA's claim is “not justiciable”.

He said the ministerial code “does not create or impose any legal duties on ministers or the prime minister” and is “not required by law” and its contents “not regulated by law”.

Sir James added: “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 told the court that the code was a “political document” and “not about protecting the rights of civil servants”.

In written submissions, he said the code “does not expressly or implicitly incorporate any definition of bullying”, arguing that “subjective experience and objective intention are elements to be considered in relation to any bullying claim but there is no single correct approach to the weight that must be given to them in a given case”.

Sir James said Mr Johnson's decision “was a matter of judgment for him having regard to the nature of the code, his functions under it, and all the circumstances of the case”.

He concluded: “His decision on the issue reveals no error of law.”

The FDA's case, being heard by Lord Justice Lewis and Mrs Justice Steyn, continues.

Additional reporting by PA

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