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Friday 19 February 2021

Why we've launched a judicial review of the Home Secretary's breach of the Ministerial Code

By Dave Penman
Ilyas Tayfun Salci / Shutterstock.com

We have, today, submitted a legal challenge to the Prime Minister’s decision that the Home Secretary did not breach the Ministerial Code. This followed an investigation which concluded that she had bullied civil servants, including incidents of shouting and swearing at them.

Despite this evidence, the Prime Minister sought to give weight to the Home Secretary’s assertion that any behaviour was unintentional and he therefore concluded that she had not breached the code.

Our challenge in the court is essentially that the Prime Minister’s decision was irrational given the obligations of the Code, and indeed his own words in its foreword that “there will be no bullying and no harassment”.

It is entirely a matter for the Prime Minister to consider the factors he feels appropriate in determining any sanction following a breach, and that is not a matter on which we seek to intervene. Our contention, however, is that given the clear obligations under the Ministerial Code in relation to bullying and harassment, the Prime Minister’s decision effectively concludes that the Home Secretary did not bully civil servants as she states this was not her intent.

The Home Office itself deals with this very issue in its definition of bullying:

"Bullying is offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power which undermines, humiliates, denigrates or injures the recipient. Bullying can be obvious and direct or more subtle and indirect. Anyone can be a victim. Bullying is not about whether the perpetrator of the acts intended them or not, but about the impact on the recipient and how it makes them feel."

The definition of bullying used in the Prime Minister’s own department, the Cabinet Office, is very similar to the Home Office definition. After stating that the Cabinet Office has a “zero tolerance” approach to bullying, harassment and discrimination, it explains what bullying is: “bullying is not about whether the perpetrator of the acts intended them or not, but about the impact on the recipient and how it makes them feel”. It says it includes “unwanted and unacceptable workplace behaviours”, giving the example of “insults, shouting and swearing”.

Having examined the procedures in dozens of departments, employers and the ACAS guidance, we cannot find an example where intent is factored in this way. The result, if left unchallenged, is that ministers would be held to a different standard of conduct than civil servants.

Whether this was the intent of the Prime Minister or not, this is the consequence of his decision. In an attempt to avoid litigation, we offered not to pursue our judicial review if the Prime Minister amended the Ministerial Code to include a definition of bullying that would be consistent with those that apply to civil servants. Unfortunately, this offer was refused and so we were left with no option but to seek a judicial review of his decision.

When it was announced in Parliament by Michael Gove, the Minister for the Cabinet Office, that officials in his department would conduct an investigation, he also chose to pledge his support for the Home Secretary. Days later, the Prime Minister, knowing he would be the final arbiter of that investigation, also pledged his full support at Prime Minister’s Questions. That report sat on his desk for months and when he finally made his decision, the Prime Minister’s adviser on the Ministerial Code, Sir Alex Allan, resigned.

This whole affair has undermined any confidence civil servants had in the Ministerial Code as a mechanism for addressing concerns about bullying or harassment by ministers. In two separate surveys we conducted with members who work closest with ministers, 85% of Senior Civil Service respondents said they did not have confidence in the Code and 90% of Fast Stream respondents.

We do not have to guess what impact this lack of confidence will have. In Parliament, where staff had little confidence in a process of self-regulation by MPs, not a single person used the complaints process, yet several hundred came forward in confidence to Dame Laura Cox QC when she conducted an inquiry.

Even at this late stage, we hope the Prime Minister recognises how damaging this has been and takes the opportunity to work with the FDA to create an independent, transparent process for dealing with complaints that will enjoy the confidence of both civil servants and ministers.

Dave Penman is the General Secretary of the FDA
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