the FDA (R on the application of) v THE PRIME MINISTER AND MINISTER FOR THE CIVIL SERVICE

Whether an issue is justiciable depends on its subject matter and the legal principles defining the proper limits of judicial determination. Although decisions to appoint, retain or dismiss a minister are political and non-justiciable, a distinct question concerning the objective meaning of workplace standards in the Ministerial Code may be justiciable.

Under paragraph 1.2, conduct may amount to bullying where it is offensive, intimidating, malicious or insulting, or involves an abuse or misuse of power that undermines, humiliates, denigrates or injures the recipient. For the first category, the perpetrator need not have intended or been aware of the harm or offence. The Prime Minister remains the ultimate arbiter of whether ministerial standards have been breached and what consequences follow, but may not assign arbitrary meanings to the Code.

The FDA brought judicial review proceedings challenging the Prime Minister’s conclusion that the Ministerial Code had not been breached following allegations that the Home Secretary had shouted and sworn at civil servants.

The claimant argued that the Prime Minister had wrongly treated awareness of, or intention to cause, upset as necessary for conduct to constitute bullying under paragraph 1.2. The defendant argued that decisions concerning the Ministerial Code were non-justiciable and that the Government Statement did not establish any such misdirection.

The agreed issues were whether the claim was justiciable and whether the Prime Minister had misinterpreted paragraph 1.2.

1. Justiciability. The claim concerned the proper interpretation of the words “harassing, bullying or other inappropriate or discriminating behaviour” in paragraph 1.2 of the Ministerial Code. Those words were capable of objective interpretation by a court. The subject matter concerned standards of workplace conduct, rather than the political question whether a minister should remain in office.
2. The absence of a statutory basis for the Code was not conclusive. Some provisions, including those concerning collective Cabinet responsibility or relations between ministers and Parliament, might be non-justiciable. The court must focus on the particular subject matter. A dispute closely connected with retaining or dismissing a minister might also be incapable of separation from that political decision, but this claim was sufficiently distinct. The first issue was therefore justiciable.
3. Meaning of bullying. Paragraph 1.2 objectively set standards for ministers’ treatment of civil servants. There was a broad consensus in the departmental policies before the court that bullying included offensive, intimidating, malicious or insulting behaviour, and abuse or misuse of power in ways that undermined, humiliated, denigrated or injured the recipient. Conduct within the first category could constitute bullying whether or not the perpetrator was aware of, or intended, the harm or offence.
4. The second category could involve intention where the alleged bullying consisted of a management decision said to abuse or misuse power in order to denigrate or humiliate. That qualification did not impose an intention requirement on the first category.
5. Application. The Government Statement, read as a whole and in context, did not show that the Prime Minister had adopted the erroneous interpretation alleged. He either accepted, or left unresolved, that the conduct could be described as bullying. His references to lack of awareness, inadvertent upset, improved relationships and his continuing confidence in the Home Secretary were contextual factors concerning the overall judgment and consequences, not findings that unintentional conduct could not be bullying.
6. The claim was dismissed. The Prime Minister’s status as ultimate arbiter of the Code did not entitle him to give its words any meaning he chose.