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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> FDA v The Prime Minister And Minister of the Civil Service [2021] EWHC 2192 (Admin) (27 April 2021) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2021/2192.html Cite as: [2021] EWHC 2192 (Admin) |
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT)
B e f o r e :
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FDA | Claimant |
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- and - |
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THE PRIME MINISTER AND MINISTER OF THE CIVIL SERVICE |
Defendant |
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Official Court Reporters and Audio Transcribers
5 New Street Square, London, EC4A 3BF
Tel: 020 7831 5627 Fax: 020 7831 7737
[email protected]
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SIR JAMES EADIE QC, MISS C. IVIMY and MR J. POBJOY (instructed by the Government Legal Department appeared on behalf of the Defendant.
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Crown Copyright ©
(Transcript prepared from CVP recording)
MR JUSTICE LINDEN:
Introduction
The Claim
Background
"1.1 Ministers of the Crown are expected to maintain high standards of behaviour and to behave in a way that upholds the highest standards of propriety.
1.2 Ministers should be professional in all their dealings and treat all those with whom they come into contact with consideration and respect. Working relationships, including with civil servants, ministerial and parliamentary colleagues and parliamentary staff should be proper and appropriate. Harassing, bullying or other inappropriate or discriminating behaviour wherever it takes place is not consistent with the Ministerial Code and will not be tolerated. (emphasis added)
1.3 The Ministerial Code should be read against the background of the overarching duty on Ministers to comply with the law and to protect the integrity of public life."
"Parliament and Whitehall are special places in our democracy, but they are also places of work too, and exactly the same standards and norms should govern them as govern any other workplace. We need to establish a new culture of respect at the centre of our public life: one in which everyone can feel confident that they are working in a safe and secure environment."
"The Ministerial Code says that 'Harassing, bullying or other inappropriate or discriminating behaviour wherever it takes place is not consistent with the Ministerial Code …' Definitions of harassment concern comments or actions relating to personal characteristics and there is no evidence from the Cabinet Office's work of any such behaviour by the Home Secretary. The definition of bullying adopted by the Civil Service accepts that legitimate, reasonable, and constructive criticism of a worker's performance will not amount to bullying. It defines bullying as intimidating or insulting behaviour that makes an individual feel uncomfortable, frightened, less respected or put down. Instances of the behaviour reported to the Cabinet Office would meet such a definition."
His conclusion included the following:
"My advice is that the Home Secretary has not consistently met the high standards required by the Ministerial Code of treating her civil servants with consideration and respect. 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. This conclusion needs to be seen in context. There is no evidence that she was aware of the impact of her behaviour, and not feedback was given to her at the time. The high pressure and demands of the role, in the Home Office, coupled with the need for more supportive leadership from top of the department has clearly been a contributory factor. In particular, I note the finding of different and more positive behaviour since these issues were raised with her."
"the Home Secretary had not always treated her civil servants with the consideration and respect that would be expected and her approach on occasion had amounted to behaviour that can be described as bullying in terms of the impact felt by individuals."
And that Sir Alex:
"went on to advise, therefore, that the Home Secretary had not consistently met the high standards expected under the Ministerial Code"
The Prime Minister went on to say that:
"The Prime Minister notes Sir Alex's advice that many of the concerns now raised were not raised at the time and that the Home Secretary was unaware of the impact that she had. He is reassured that the Home Secretary is sorry for inadvertently upsetting those with whom she was working. He is also reassured that relationships, practices and culture in the Home Office are much improved. As the arbiter of the code, having considered Sir Alex's advice and weighing up all the factors, the Prime Minister's judgement is that the Ministerial Code was not breached."
"Their proposal is that the Prime Minister agrees to issue an amendment to the Code that defines bullying (and harassment) in the same way as it is defined in e.g., the Home Office grievance policy and thus makes explicit that bullying is based on the impact on the recipient, not the intention of the perpetrator. That will at least mitigate the intractable workplace problems and provide clarity for the future. It will also bring the Code in line with the expectations of those who work in the civil servants and the standards expected of in all other workplaces."
That proposal was refused on 17 February 2021, hence the second limb of the claimant's challenge.
The Claim
(a) The court should be slow to rule that a claim is not justiciable at the permission stage, bearing in mind that the court does not hear full argument at this stage and there merely needs to be an arguable ground for judicial review which has a realistic prospect of success. He also emphasises the importance of the issues which the claim raises;
(b) This is not a case where the subject matter of the Claim is inherently unsuitable for judicial determination on the basis that it is political and/or there is no judicial or manageable standard. He refers to the well-known passages at paras.41 to 43 of the decision of the Supreme Court in Shergill v Khaira & Others [2015] AC 359, and he submits that the present case does not fall within either of the two categories of non-justiciable cases identified by Lord Neuberger. He also relies on para.31 of the decision of the Supreme Court in Miller and Cherry v. The Prime Minister [2020] AC 373 which states, in summary, that the fact that a dispute concerns the conduct of politicians or arises from a matter of political controversy is not sufficient in itself to prevent the court from becoming involved.
(c) The issue is one of rights and interests in the workplace, as Prime Minister May's Foreword to the 2018 Code made clear. The claimant and its members therefore have interests which are derived from the Code and/or are affected by the Code and they are entitled to ask the court to adjudicate its meaning. In this regard Mr Hickman draws an analogy with the approach in the case of R (EHRC) v. The Prime Minister [2011] 1WLR 1389, where the court adjudicated issues relating to the meaning and content of guidance to intelligence officers and service personnel in relation to detention and questioning overseas. He also relies on the decision in Her Majesty's Treasury v. Information Commissioner [2009] EWHC 1311 to submit that, in the context of freedom of information requests, a court may be called upon to interpret the Ministerial Code and he argues that references to bullying in the Ministerial Code are to the norms set out in the civil service disciplinary and grievance procedures.
(d) The question which the court is asked to determine in the present case is not a political one. It is merely asked to declare the meaning of the term "bullying" where it appears in the Code, as a matter of objective interpretation and applying the usual principles.
(e) The Court of Appeal, in R (Gulf Centre for Human Rights) v. The Prime Minister [2017] EWCA Civ. 1855, effectively ruled on the meaning of the Code and did not appear to consider that there could never be a question arising out of the Code which the court was competent to adjudicate.
(f) Finally, the reasons given by Farbey J for holding that the Claim is not even arguably justiciable are each unsound, primarily because they did not go to justiciability.
The defence to the Claim
"1.4 It is not the role of the Cabinet Secretary or other officials to enforce the Code. If there is an allegation about a breach of the Code, and the Prime Minister, having consulted the Cabinet Secretary, feels that it warrants further investigation, he may ask the Cabinet Office to investigate the facts of the case and/or refer the matter to the independent adviser on Ministers' interests.
1.5 The Code provides guidance to Ministers on how they should act and arrange their affairs in order to uphold these standards. It lists the principles which may apply in particular situations. It applies to all members of the Government and covers Parliamentary Private Secretaries in paragraphs 3.7 – 3.12.
1.6 Ministers are personally responsible for deciding how to act and conduct themselves in the light of the Code and for justifying their actions and conduct to Parliament and the public. However, Ministers only remain in office for so long as they retain the confidence of the Prime Minister. He is the ultimate judge of the standards of behaviour expected of a Minister and the appropriate consequences of a breach of those standards."
"Even if we considered it was open to us to do so, it would be perverse for this court to interpret paragraph 1.2 in a way in which the Government has repeatedly stated was not intended and which GCHR itself says would be most unsatisfactory."
He argues that the Lord Chief Justice was there indicating that it was not open to the court to interpret the Code or, at least, indicating doubts on this score.
Conclusion