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Thursday 10 December 2020

Legal challenge on breach of Ministerial Code

By Dave Penman
General Secretary Dave Penman explains why the FDA has now begun the legal process which may ultimately result in a Judicial Review application, following the Prime Minister’s decision that the Home Secretary did not breach the Ministerial Code.

Andrew Parsons / No 10 Downing Street

I wrote to FDA members on 20 November following Prime Minister Boris Johnson’s extraordinary decision that that Home Secretary did not breach the Ministerial Code, despite the evidence found in the investigation led by Sir Alex Allan, the Prime Minister’s adviser on the Ministerial Code.

In that note I said: “The Prime Minister, who is also Minister for the Civil Service, has made a clear choice today. Despite the evidence, despite his own words in the foreword to the Ministerial Code, despite the resignation of his adviser on the code, the Prime Minister chose political convenience over his moral and constitutional obligations to the civil service and the country.

“No civil servant can now have confidence that if they raise a concern over bullying or harassment by a minister, that this will be dealt with fairly or impartially by the Prime Minister. In a process that obviously lacks transparency, the one transparent element has been the naked political choice that the Prime Minister made today.”

The focus from the media, ministers and the dozens of MPs tweeting their support has been on the Home Secretary and the political nature of the decision. Very few column inches have considered the civil servants who have been subject to bullying behaviour by one of the most powerful people in the country. That has always been our focus and we now find ourselves in a position where the Prime Minister has exercised his prerogative power in relation to the Ministerial Code and made a perverse decision which if unchallenged would leave those civil servants very exposed.

Given the consequences for those civil servants who were bullied and the impact across the service, we asked our legal advisers to consider whether the decision of the Prime Minister could be challenged in the courts.

As a result, we have now begun the legal process which may ultimately result in a Judicial Review application, seeking to quash the Prime Minister’s decision.

As is required in these circumstances, we have issued a pre-action protocol letter setting out where we believe the Prime Minister erred in law, asking him to reverse the decision and also seeking further details of any facts he relied on in making his decision.

The letter sets out the damaging precedent of Johnson’s decision: “This matter is of great importance to the civil servants working under the Home Secretary and in the wider civil service. They can no longer have confidence in the Code if the Prime Minister’s decision stands. It sets a damaging precedent which gives carte blanche to the kind of unacceptable conduct which the Home Secretary was found to have committed. No doubt it will be relied on by other ministers in the future, to argue that (for example) an apology after the event or a lack of awareness or intention to injure at the time means that bullying or unacceptable conduct has not taken place at all.

“The decision also makes relationships and disciplinary action within the civil service extremely difficult. The Prime Minister, as the person responsible for regulating the Civil Service, should be acutely aware of these wider detrimental effects of his decision”

Once we have a response to this letter, we will review the position, as you would expect, before any final decision is made to proceed to Judicial Review.
This is not a course of action we have taken lightly. We have sought, over a number of years now, to persuade the government that the current process for investigating and deciding on these complaints is not fit for purpose. Unfortunately, their refusal to address these concerns and the decision of the Prime Minister to ignore the facts presented to him, have left us with no choice.
This is not a simple challenge and raises issues regarding the scope for challenge of the Prime Minister’s prerogative powers. We are not seeking to interfere with his power over ministerial appointment or dismissal; the consequences of breaching the Ministerial Code are rightly a matter for the Prime Minister alone. Our challenge rather centres on his decision that the Home Secretary did not breach the Ministerial Code, despite the facts that were established and which he did not challenge.
We will, of course, keep members updated on progress on this issue.

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