R (FDA) v Prime Minister

This judicial review concerned the proper interpretation and justiciability of paragraph 1.2 of the Ministerial Code, which states that "Harassing, bullying or other inappropriate or discriminating behaviour…is not consistent with the Ministerial Code and will not be tolerated." The claimant (the FDA union) alleged that the Prime Minister misdirected himself by treating "bullying" as requiring the perpetrator's awareness or intention to cause upset, whereas the proper test depends on the impact on the recipient. The court held that the discrete issue of the meaning of the words in paragraph 1.2 was justiciable and capable of objective interpretation, and that workplace definitions and guidance (including the Civil Service Gateway Guide) inform that meaning. However, on a fair reading of the Prime Minister's Government Statement and the advice of the independent adviser, the Prime Minister did not proceed on the mistaken basis alleged: he had weighed Sir Alex Allan's findings together with contextual factors (for example that concerns were not raised contemporaneously, that the Home Secretary was unaware of the impact and expressed regret, and that relationships had improved) and concluded there was no breach warranting loss of confidence. The claim was dismissed.

The claimant, the FDA (a civil service trade union), sought a declaration that the Prime Minister misinterpreted paragraph 1.2 of the Ministerial Code when he decided that the Home Secretary had not breached the Code following allegations of shouting, swearing and other inappropriate conduct towards civil servants. The Prime Minister had asked the Cabinet Office to establish the facts and received advice from the independent adviser on ministers' interests, Sir Alex Allan, who concluded that certain forceful conduct amounted to behaviour that could be described as bullying in terms of the impact on individuals, albeit there was no evidence the Home Secretary intended that impact or was aware of it at the time. The Government Statement recorded the Prime Minister's view that, weighing all factors, the Ministerial Code was not breached and he retained confidence in the Home Secretary.

The court divided the claim into two issues: (1) justiciability of the interpretation issue; and (2) whether the Prime Minister misdirected himself as to the meaning of "bullying" in paragraph 1.2. On issue (1) the court held the discrete question of the meaning of the words in paragraph 1.2 was justiciable: the court can, in principle, interpret workplace‑standards language and determine whether the Ministerial Code's wording imports external workplace definitions. On issue (2) the court analysed the guidance and departmental materials and concluded that, objectively, "bullying" includes offensive, intimidating or insulting behaviour judged by its impact on the recipient and need not depend on the perpetrator's awareness or intent in relation to that impact. Nevertheless, the court found no material misdirection by the Prime Minister. The Government Statement either accepted or did not positively reject Sir Alex Allan's finding that some conduct could be described as bullying but, having weighed contextual matters (absence of contemporaneous complaints, the Home Secretary's ignorance of the impact and apology, and improved relations), concluded no breach was proven or that the circumstances did not undermine the Prime Minister's confidence. The claimant sought a declaration only; it did not seek to quash the decision or to direct any sanction. The court dismissed the claim.

The judgment also explains the difference between departmental workplace procedures (which assess intent, impact, mitigation and sanctions) and the Ministerial Code (which sets standards for ministers and contemplates the Prime Minister's final judgment about confidence in a minister). The court noted that advisory declarations are exceptional and discretionary but found the interpretation issue itself to be justiciable and determined the substantive point against the claimant.

This is a first instance judicial review. The claim is dismissed. The court held that (a) the discrete question whether the words "Harassing, bullying or other inappropriate or discriminating behaviour" in paragraph 1.2 of the Ministerial Code are justiciable is answered in the affirmative — that wording is capable of objective interpretation and may incorporate external workplace standards — and (b) on a fair reading of the Prime Minister's Government Statement and the advice he received, the Prime Minister did not misdirect himself by treating "bullying" as requiring awareness or intent to cause upset; rather he weighed Sir Alex Allan's findings together with contextual factors and concluded there was no breach warranting loss of confidence.