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Thursday 09 December 2021

Judgement handed down in FDA's judicial review

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Ilyas Tayfun Salci / Shutterstock.com

On Monday 6 December, the High Court handed down its judgement in our judicial review of the Prime Minister's decision that the Home Secretary did not breach the Ministerial Code.

Although the judicial review was dismissed overall, the findings of the court represent a clear rejection of the idea that there are different standards for ministers than for civil servants. Specifically, the court found:

  • That the prohibition on bullying, discrimination and harassment in the Ministerial Code is justiciable in the Courts.
  • That the Prime Minister must correctly apply those concepts when determining complaints against ministers.
  • That it is not an excuse for bullying under the Code that a minister does not intend or is not aware of the upset and distress caused by their actions.

Speaking to BBC News outside the Royal Courts of Justice, FDA General Secretary Dave Penman argued that the judgement represented a "significant step forward" in holding ministers to account for their conduct, and told Adam Boulton on Sky News that it was critical that the court had ruled that the Ministerial Code was justiciable, meaning the Prime Minister had "to have regard to the law of the land".

Penman reflected on this further when speaking to Times Radio, arguing that the judgement made clear that the most powerful people in the country have to "follow the same rules as everyone else", and on LBC News, he pointed out that there was now no "get out of jail free card" for a minister to claim they did not intend to bully.

Appearing on GBNews the following morning, Penman called on the government to reflect on the failings exposed by the judicial review and to come up with a much better system for dealing with complaints in the future. He discussed this issue further in a column for Civil Service World:

"Any system for investigating bullying and harassment must have the interests of those subject to the abuse of power at its heart. Instead, we have an opaque, politically vulnerable process that the prime minister has made abundantly clear prioritises his own political interests over those who are subject to bullying or harassment."

On his Law and Policy blog, David Allen Green wrote of how this judgement was not a welcome one for the government: "This is a good example of a case which both sides can be seen to have lost – but one in which both sides can also be seen as having won. And the more significant victory, for transparency and accountability, is that of the FDA."

Jolyon Maugham, Director of the Good Law Project, argued that you can fight and lose a case, but still improve the law, adding that the case means "the PM has to observe (parts of) the Ministerial code. Yes, FDA 'lost' - but the rest of us won." While the human rights barrister Adam Wagner pointed out that the finding that the application of the Ministerial Code was justiciable was a "big win".

You can find out more about the judicial review, and the FDA's reasons for bringing the case here.

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