R. (on the application of the FDA) v Prime Minister and Minister of the Civil Service [2021] EWHC 3279 (Admin)
The facts and decision
In 2020, allegations had been made that the Home Secretary (Priti Patel) had behaved inappropriately towards civil servants, primarily by shouting and swearing at them. The Prime Minister was advised by the independent adviser on ministers’ interests that the Home Secretary’s behaviour could be described as bullying in terms of the impact felt by individuals, concluding that she had breached paragraph1.2 of the Ministerial Code, even if unintentionally. However, the Prime Minister concluded that the Code had not been breached and that the Home Secretary retained his confidence.
The High Court first held that the matter was justiciable; that the proper interpretation of the words ‘harassing, bullying or other inappropriate or discriminating behaviour’ were capable of interpretation by a court of law. Further, certain decisions, such as the decision to dismiss or retain a minister in office, were not justiciable, being a political matter for the Prime Minister.
The Court noted that there was a broad consensus that conduct would be ‘bullying’ if it was either: (a) offensive, intimidating, malicious or insulting; or (b) an abuse or misuse of power in a way that undermined, humiliated, denigrated or injured the recipient. On the court’s interpretation of that provision, conduct could fall within (a) above whether or not the perpetrator intended their behaviour to be, or was unaware that it was, offensive, intimidating, malicious or insulting. In the Court’s view, the alleged conduct of the Home Secretary fell clearly within limb (a) of the code.
In his written decision following the report, the Prime Minister noted the independent adviser’s observations that the Home Secretary had become frustrated by the lack of responsiveness by her department, and that she had been unaware of the impact of her behaviour and was sorry for inadvertently upsetting civil servants. The Prime Minister then indicated that she retained his confidence, but his conclusion that she had not breached the Code was not a finding that her conduct did not amount to bullying. Rather, the Prime Minister was saying either that it would not be right to record that the Code had been breached, or that her conduct did not warrant a sanction such as a dismissal. The Prime Minister was the arbiter of the Ministerial Code, and it was for him alone to determine whether a minister had departed from it to such an extent that he could no longer have confidence in them.
Commentary
The claim was based on the Prime Minister’s alleged misinterpretation of the code, rather than his failure to take any action against the Home Secretary. That did not exclude the court’s intervention if he misinterpreted his powers, but he was not bound to take into account particular substantive principles when deciding whether the code had been violated, or what sanction, if any to impose.
Given the constitutional importance of this issue, it cannot be right that the application of the code is left to one person, who might have political reasons for their determination. In this sense, the ruling on the Prime Minister’s application of the code to the Home Secretary is disappointing. Under administrative law, decisions should be supported by evidence and even the most political of decisions should be subject to some review, including basic rationality. As it stands, this case is a further example of the existing government taking action in the belief that as we have spoken that will be the end of the matter.
Dr Steve Foster
Associate Professor of Law
You can find out more about Steve’s research through his Pure profile, which sets out his research interests, publications, and contact details. You can also find out more about Coventry University’s research through our dedicated research page
Leave a Reply