The Ultimate Arbiter of the Code

Document Cited authorities (1) Cited in Related
DOI10.3366/elr.2022.0763
Author
Pages239-244
Date01 May 2022
Published date01 May 2022

In The Queen (On the application of the FDA) v Prime Minister1 the English Administrative Court (Lewis LJ and Steyn J) dismissed a judicial review claim seeking a declaration that the Prime Minister had misdirected himself in law over the meaning of a provision in the Ministerial Code. The ruling is welcome for its granular approach to the issues of justiciability raised by the claim. However, the case exemplifies the difficulties in transposing judicial techniques to control the exercise of statutory powers to a non-statutory code. The case sheds light on an unsettling aspect of the British constitution, namely, that there exist areas in which the Government can write, revise, and adjudicate upon its own rules without meaningful external legal control.

The FDA (a trade union) brought the claim against the background of allegations that the Home Secretary Priti Patel MP had bullied civil servants. In February 2020, the Permanent Secretary to the Home Office, Sir Philip Rutnam resigned, and issued a public statement that he would pursue a claim for constructive dismissal in the courts. In accordance with paragraph 1.6 of the Ministerial Code, the Cabinet Office presented a report to the Prime Minister on 30 July 2020 establishing the factual background to the bullying allegations. The Cabinet Office report was not before the Administrative Court.

Sir Alex Allan, the Independent Adviser on Ministers’ Interests, was also asked by the Prime Minister to consider whether the Home Secretary had breached the Code by engaging in conduct amounting to “[h]arassing, bullying or other inappropriate or discriminating behaviour” in Paragraph 1.2.2 This provision was inserted in January 2018 by (then) Prime Minister Theresa May. Sir Alex’s report concluded that the Home Secretary had “been in breach of the Ministerial Code, even if unintentionally” because she was unaware of the impact of her conduct upon others. On 18 November 2020 the Government issued a statement that: “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”.3

Two issues fell to be determined by the Administrative Court. The first issue was whether the claim that the Prime Minister had misdirected himself as to the meaning of specific words in Paragraph 1.2 of the Ministerial Code was justiciable. Assuming the claim was indeed justiciable, the second question was whether the Prime Minister had misdirected himself as to the meaning of the word “bullying”. The court held that the claim was justiciable, but that the Prime Minister had not misdirected himself as to the meaning of the Ministerial Code.

The Court appositely described justiciability as concerning “the question of whether a dispute is suitable for and capable of judicial determination”.4 According to the claimant, there were two reasons that the claim was justiciable. First, it should be justiciable because the Court of Appeal had previously considered a legal challenge to an alteration of the wording of the Ministerial Code.5 Secondly, the present case fell within neither of the categories of non-justiciable claims articulated by the Supreme Court in Shergill v Khaira.6

In Shergill, a trusts case, the Supreme Court identified two categories of non-justiciable claim. The first...

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