The proper interpretation of the ministerial code can be justiciable, the High Court has ruled in dismissing a judicial review which claimed the prime minister misinterpreted the word ‘bullying’ in relation to allegations made against home secretary Priti Patel.
The FDA, a trade union representing civil servants, claimed Boris Johnson wrongly considered that conduct would constitute bullying only if the person concerned was aware their conduct was upsetting or intimidating.
Lawyers representing the prime minister argued that the ministerial code was a ‘political document’ issued in a political context, which ‘does not create or impose any legal duties on ministers or the prime minister’.
In FDA v The Prime Minister, the High Court was asked to determine whether the claim was justiciable and, if so, whether Johnson misdirected himself as to the meaning of the term ‘bullying’ in the ministerial code.
The court today held that the words ‘harassment’, ‘bullying’ and ‘discriminating behaviour’, as contained in the relevant part of the code, are ‘capable of being interpreted by a court’.
Giving the High Court’s ruling, Lord Justice Lewis – sitting with Mrs Justice Steyn – said: ‘Similarly, the courts could rule on whether an interpretation of “bullying” which limited it to physical but not verbal aggression was consistent with the words as currently set out in the ministerial code.
‘In principle, therefore, we consider that the question of whether the ministerial code in its present form excludes offensive conduct from the definition of bullying … if the perpetrator was unaware of, or did not intend, the harm caused is justiciable.’
The court accepted the ministerial code has no statutory basis, but said ‘that of itself is not conclusive’.
Lewis said that while the interpretation of ‘parts, perhaps most, of the provisions of the ministerial code would not be justiciable because they involve political matters’, it did not follow that ‘all parts of the ministerial code should be treated as non-justiciable’.
However, the court found that Johnson ‘did not proceed on the basis that conduct would not amount to bullying … if the minister concerned was unaware of, or did not intend to cause, offence or harm’ and dismissed the FDA’s claim.
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