I wrote a short letter to the Times indicating that in 43 years of practice as an employment law barrister, I had never come across the notion of “unintentional bullying”. My point was that you cannot rebut such an allegation by saying “I did not intend to harass or bully”. My letter went viral and, amazingly, I received no hostile comments or abuse and the Home Secretary did not even swear at me over it.
This correspondence related, of course, to the report by Alex Allan, then the Prime Minister’s ethics adviser, on the Home Secretary’s conduct in no less than three government departments. She claims to have found civil servants at all of these ministries so impossible she had to tell them they were useless in very direct terms. Lady Bracknell’s comments come to mind (“To lose one parent, Mr Worthing, may be regarded as a misfortune; to lose both looks like carelessness.”)
The “report” published by Downing Street on 20 November was just one and a quarter pages, has no proper heading, is unsigned and refers to “the facts established by the Cabinet Office”, including Patel’s “forceful expression” and “some occasions of shouting and swearing”. I will call it “the one and a quarter pages” hereafter.
At the time I wrote my letter I had thought the one and a quarter pages were (a) the full report and (b) a report by Allan (who resigned over the fact it was not accepted by the Prime Minister), but a little sleuthing on my part revealed that neither proposition was correct. All that has been published, it seems, is a precis of the advice given by Allan.
Yet the world had to wait for months after the work was completed before the Prime Minister published even this mouse of a document. On the day of its release Johnson told fawning Conservative MPs to “form a square around the Prittster” (which is presumably some sort of Etonian witticism).
[see also: How Priti Patel became unsackable]
It seems that someone other than Allan (step forward Helen MacNamara, the deputy cabinet secretary and head of propriety and ethics) found “facts” for the one and a quarter pages, insofar as they could be found, without asking the other important knight in this story, Philip Rutnam, the permanent secretary at the Home Office who had resigned over Patel’s conduct. As we lawyers say, it is “reasonable to infer” that there is a substantive document somewhere (perhaps in a wastepaper bin) which we mere citizens are not to be trusted to see.
While there may be some restrictions on what Rutnam could say because he has launched an employment tribunal case against the Home Office, it does seem very odd that the person who instigated the whole series of events was not questioned.
Bullying and harassment are highly charged words but within them there is a range of conduct from the less to the more serious. Different people have markedly different levels of tolerance to such conduct, which can be heavily gendered.
There is no legal definition of bullying, which is not itself a legal concept, and is a bit like an elephant: difficult to define but you probably know it when you see it. One commonly used definition is “unwanted conduct affecting the dignity of men and women in the workplace where actions or comments are viewed as demeaning and unacceptable to the recipient”. It may be “offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power which had the effect of undermining, humiliating, denigrating or injuring the recipient”. Patel’s comments, as “found”, fit that bill. The one and a quarter pages rests on the definition in the civil service code.
As High Court judge Laura Cox said in her 2018 report on the bullying and harassment of House of Commons staff: “Some bullies lack insight into their behaviour and are unaware of how others perceive it. Others know exactly what they are doing and will continue to bully if they feel they are unlikely to be challenged.”
The Protection from Harassment Act 1997 has both civil and criminal elements but the person liable is taken to know they are harassing someone if a reasonable person would think so. According to section 26 of the Equality Act 2010, there is harassment if a person engages in unwanted conduct connected to a protected characteristic, such as race or sex, and the conduct has the purpose or effect of violating dignity or creating an intimidating environment. The definition of harassment for legal purposes is objective but has some subjective elements.
The difficulty is drawing the line between this and “constructive criticism”, which obviously should not be banned or limited. These may be reasonable responses to significant management concerns.
The ministerial code
The ministerial code, first made public in 1992, naturally errs on the side of caution and adopts a wide definition. It calls for positive conduct and says, “Ministers should be professional in their working relationships with the Civil Service and treat all those with whom they come into contact with consideration and respect.” Further, “Public officers carry out their duties for the benefit of the public as a whole. If they neglect or misconduct themselves in the course of those duties this may lead to a breach or abuse of the public’s trust.” This code has been regularly updated – the most recent versions under premiers Theresa May and Johnson, ironically enough, strengthened the language on bullying and harassment.
Breach of the code normally leads to resignation as Damian Green, Liam Fox, and Michael Fallon honourably did for sins which to many will seem less egregious than Patel’s. One of the problems with the code is that it is all or nothing – there are “offences” under the code that should not be resignation-worthy – such as failing to inform No 10 about making a speech.
Misconduct in a public office
Do people dissatisfied with the outcome have another route to redress? One intriguing possibility is that someone might bring a criminal charge of misconduct in a public office by way of private prosecution (I doubt the Director of Public Prosecutions will be rushing to do so). This has been suggested by Professor Joshua Silver, a retired Oxford University academic. The offence is committed when: a public officer acting as such; wilfully neglects to perform his duty and/or wilfully misconducts himself; to such a degree as to amount to an abuse of the public’s trust in the office holder; without reasonable excuse or justification.
It carries a maximum sentence of life imprisonment, and for the offence to be proven there must also be an element of knowledge or at least recklessness about the way in which the duty is carried out or neglected. The test is a subjective one and the public officer must be aware that his or her behaviour is capable of being viewed as misconduct.
It is unlikely that the Home Secretary will find herself in Court One at the Old Bailey but if she does, Johnson will not be able to give her a Trumpian pardon.
Did Patel know?
One of the defences to a criminal charge (but not a civil one or one under the ministerial code) would be “I did not know”, and Patel has effectively put her defence in early. The factors cited by Allan in the one and a quarter pages as (in effect) mitigations for the Home Secretary’s conduct, include the claim that “no feedback was given to her at the time”, and so presumably she is claiming that she did not know what she was doing or that it was wrong. Allan also said that there had been a “lack of support” for her from the department.
It is extraordinary that the Home Secretary says that she was unaware of the rules and so that she therefore operated unintentionally. She would presumably have been made aware of both the Nolan Principles for public life and the ministerial code on appointment, and a reasonable minister would have understood what the words contained therein mean, and that actions such as Patel’s were breaching them, although a tin-eared person might say that they did not consider that they were.
Rutnam broke his long, dignified silence since his resignation just after the release of the one and a quarter pages with a short statement that he and other officials had given feedback to Patel, and that she had been challenged about her conduct as early as August 2019, the month after her appointment as Home Secretary. In any event, of course, it should not have been necessary to do so.
It is truly extraordinary that Rutnam was at no stage asked to contribute to the investigation. The two knights were not allowed to joust. How can anyone investigate if the main complainant is not included?
My detective work
So, using my experience as a barrister, I embarked on some detective work about how the one and a quarter pages came into existence. One can deduce a number of things from the little that was published:
A. Such investigation as was done was in fact carried out by the Cabinet Office; it is unclear what role Allan played in contributing to, or overseeing the investigation, and this may have been minimal oversight and scrutiny for a Prime Minister who had not only made up his mind but preannounced it; this is what you call “going through the motions”;
B. Allan merely provided “advice” to the Prime Minister on whether the “facts” were a breach of the ministerial code even though the published report carried the heading “Findings…”.
C. There is somewhere an 87-page Cabinet Office report, according to the Times. That is what should be published and soon (although a freedom of information request might get there first, presumably to be met by the “personnel exception”).
D. The bar for finding breaches of the ministerial code is very high or “rigged” in favour of the minister; rigged is not my word but that of Nicholas Macpherson, a former Treasury permanent secretary, who took to Twitter to declare that “things have to be very bad indeed for a Cabinet Office enquiry to find fault in a minister – the system is rigged to conclude the contrary”. He was attacking the system, rather than the decision, in this case it appears.
Several things are unforgivable about this whole affair: the Prime Minister marking his own homework; the failure or refusal to interview Rutnam; the failure to publish the full report or even a precis of the facts; the delays; what appear to be restrictive terms of reference; and the failure of Patel to issue a proper apology. Extraordinarily, the Prime Minister denounced the bullying allegations as “mere trivia” when this was raised by Keir Starmer at PMQs after the one and a quarter pages was released. And this from a Prime Minister whose introduction to the code states, “There must be no bullying and no harassment.”
What is worse is the contempt shown by the Prime Minister for the public interest in good government. And this after the chief supporter of recruiting “misfits and weirdos” to the civil service (and, according to some, someone also capable of bullying behaviour), Dominic Cummings, was himself marched off the Downing Street premises clutching his belongings.
The Prime Minister has to be the person to decide who is or is not a minister. But there should be a more independent process for determining if the ministerial code has been broken.
The one and a quarter pages laconically states that Patel “is action orientated and can be direct”. This sort of action and directness should not be tolerated. The civil servants still await a proper apology.
This will all make the hearing of Rutnam’s constructive unfair dismissal case compelling viewing. The tribunal at least should be able to order the government to release the full report. Start queuing for ringside seats now.
John Bowers QC is an employment barrister