Boris Johnson misinterpreted 'bullying' in ministerial code as he backed Priti Patel, court told

Prime Minister Boris Johnson and Home Secretary Priti Patel speak to cadets during a visit to Surrey Police headquarters in Guildford, Surrey, to coincide with the publication of the government's Beating Crime Plan.
Prime Minister Boris Johnson and Home Secretary Priti Patel speak to cadets during a visit to Surrey Police headquarters in Guildford, Surrey, to coincide with the publication of the government's Beating Crime Plan.

FDA union is bringing a legal challenge over the PM's decision to stand by Priti Patel following bullying allegations

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The Prime Minister “misinterpreted” the term “bullying” in the ministerial code when deciding if the Home Secretary’s treatment of civil servants breached its standards, the High Court has been told.

The FDA union is bringing a legal challenge over Boris Johnson’s decision last year to stand by Priti Patel following accusations of bullying.

Lawyers for the union, which represents senior public servants, argue Mr Johnson made a “misdirection of law” when he went against the findings of his adviser on ministerial standards in order to back Ms Patel.

In an investigation into Ms Patel’s behaviour, published in November last year, Sir Alex Allan found she had not always treated civil servants with “consideration and respect”.

A legal challenge over the Prime Minister's decision to stand by the Home Secretary following accusations of bullying is to be heard by senior judges at the High Court.
A legal challenge over the Prime Minister's decision to stand by the Home Secretary following accusations of bullying is to be heard by senior judges at the High Court.

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 Johnson, the arbiter of the ministerial code, said the Home Secretary was “unaware” of the impact she had and he was “reassured” she was “sorry for inadvertently upsetting those with whom she was working”.

After “weighing up all the factors”, he concluded the code had not been breached.

Referencing the Prime Minister’s conclusion, Tom Hickman QC, representing the FDA, told a hearing at the Royal Courts of Justice on Wednesday: “We say on any fair reading of those words the Prime Minister must have considered that where conduct which otherwise amounts to bullying is inadvertent or that the person is unaware of the distress and upset caused then that is an excuse, a reason why it does not constitute bullying.

“We say that is a misdirection of law.”

Mr Hickman said that other than Sir Alex’s report, “there was no other advice or direction considered by the Prime Minister in making his decision”.

In written submissions to the court, he said the Prime Minister “simply took his own view”, adding that his position as code arbiter did not mean it meant “whatever he chooses it to mean: words have objective meaning”.

Mr Hickman said Mr Johnson’s position “has much in common with that of Humpty Dumpty”, quoting lines from the character in Lewis Carroll’s novel Through The Looking Glass who says: “When I use a word… it means just what I choose it to mean – neither more nor less.”

Mr Hickman argued the code’s mention of bullying was a reference to “external standards” expressed in Government policy on workplace standards and its “zero tolerance” approach to harassment, bullying and discrimination.

Prime Minister Boris Johnson.
Prime Minister Boris Johnson.

He said there was “nothing in such norms and standards” supporting the view “that conduct is not bullying if the distress it causes is unintentional or inadvertent”.

He added that the FDA was concerned about the “significant implications” if the ministerial code “means that it only protects civil servants from bullying if that conduct is accompanied by an awareness or intention on the part of the minister of the harmful consequences of their conduct”.

He said: “This would result in double standards, with ministers subject to different, more lenient, standards than those which apply to civil servants.

“It would fail to uphold the assurance given to all civil servants that in the Government workplace bullying in any form will not be tolerated from any source.”

Mr Hickman added in written submissions that the FDA, some of whose members were “directly involved” in the investigation of the Home Secretary, 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”.

He called on judges to declare that Mr Johnson “misinterpreted the term bullying in the ministerial code”.

Her behaviour has been in breach of the ministerial code, even if unintentionally

Sir Alex Allan

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.”

Sir Alex left his role in Downing Street after Mr Johnson contradicted his advice.

Following the publication of his report, Ms Patel issued an “unreserved, fulsome apology” and said there were “no excuses” for what happened.

The FDA’s case, being heard by Lord Justice Lewis and Mrs Justice Steyn at the Royal Courts of Justice, continues.

The hearing before Lord Justice Lewis and Mrs Justice Steyn at the Royal Courts of Justice is due to conclude on Thursday afternoon, with a judgment expected at a later date.