The actions of the Home Secretary, Priti Patel, have been brought to the attention of the press based on allegations of bullying her fellow civil servants back in March. However, it was not until recently that these allegations were formally addressed in an internal investigation led by Whitehall’s independent adviser, Sir Alex Allan.
The Whitehall Report
In findings published last week by Sir Alex Allan, it was found that Patel had, in fact, broken the Ministerial Code. Although his recommendations found that her frustration was perhaps at times justified, the report concluded that she had not treated civil servants with the ‘consideration and respect’ expected of any minister. On occasions, her conduct did amount to ‘bullying in terms of the impact felt by individuals’. Patel was found thus to have broken the letter of the Code.
One would have expected Patel’s resignation following these allegations. However, our Prime Minister, Boris Johnson, decided to pardon Miss Patel’s behaviour, pledging his confidence in the Home Secretary. Patel’s public apology was accepted by Johnson, and the matter is now closed. Or is it?
What is the Ministerial Code, and what does the PM’s decision mean for our Constitution?
The Ministerial Code is a document which sets out the standard of behaviour expected by all ministers. Updated in August 2019, the Code leads with a Foreword from our current PM, in which he writes that there must be ‘no bullying’ within the Government. This is reiterated in General Principle [1.1] which states that no such behaviour will be tolerated, for it is rendered inconsistent with the Code. It is easy to see, when reading the Code, why Johnson’s decision to back Patel was remarkable. As noted by Mike Gordon, Professor of Constitutional Law at the University of Liverpool, the PM’s decision vastly reduces the Code’s ability to offer ‘adequate protection to civil servants’.
Although this is not Johnson’s first disregard for basic principles of governance, this particular incident has some ‘notable constitutional implications’. And while the Code is not legally binding, it should carry weight. Its scope is to set out the spirit of ministerial responsibility. The Home Secretary’s behaviour went against this prescribed scope, and the PM’s decision to overlook this should not be taken lightly.
The Code’s subjectivity is also a matter of constitutional concern. As Mike Gordon notes, such subjective interpretation was highlighted in the report, wherein it was described that at times, Patel’s behaviour was unintentional. The notion that Patel may not have been aware of her behaviour – or what Gordon calls the ‘ignorance defence’, surely, should not be regarded as a key factor in Patel being pardoned. Such a subjective interpretation of a minister’s behaviour goes against the very clear message set out in the Code’s Foreword.
The informality of the advice given in such investigations should be reformed, as it should not be so easy for the PM to overrule recommendations. However, it is unlikely such reforms will come to fruition under our current Government. Until then, the way in which this investigation has been dealt will only go further in undermining the constitutional significance of our Ministerial Code. Indeed, it seems that the Code, presented as a vital regulator of ministerial behaviour, is hardly respected in practice.
As a result of the investigation Sir Alex Allen officially resigned from his post which he has held since 2011. Sir Allen recognises that as the Code’s arbiter, Boris Johnson is entitled to use discretion when judging whether a minister’s conduct amounted to a breach of the Code. However, the fact that the PM chose not only to pardon Patel but to disagree with the report’s recommendations, holding that no breach had occurred, seemed to be the final straw for Sir Allen. Currently, the PM is yet to appoint Allen’s replacement.
Many see this as yet another catastrophic failure of the current government in dealing with breaches of policy. Patel’s apology seemed somewhat empty, and Johnson’s decision to stick by his Home Secretary may not have been entirely correct. Yet, in this time filled with unknowns, perhaps we should not condemn our Prime Minister for trying to keep his cabinet from falling apart.