WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
February 02 2023
WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO

Riding out the storm

Riding out the storm

Boris Johnson preparing for an appearance on the Andrew Marr show

In December last year, Boris Johnson was asked to decide if Priti Patel had breached the ministerial code by bullying her staff. After an inquiry conducted by Sir Alex Allan, then the government’s independent advisor on the code, he advised the prime minister that Patel had behaved in a way that ‘could be described as bullying’. Despite this, Johnson decided that the Home Secretary had not behaved in a way that breached the code, keeping her in office.

This may be a decision Johnson now comes to regret, having been handed a fixed penalty notice from the Metropolitan Police for attending parties at Downing Street during lockdown. After Johnson failed to discipline Patel, the FDA, a civil service union, challenged Johnson’s decision in the High Court, arguing that his decision was inconsistent with the code. At first glance, the prime minister was successful in this case. The High Court found that he had not misdirected himself on whether Patel’s behaviour amounted to bullying, and that his decision to keep her in situ was not unlawful.

But while the government may have won on the facts of this case, it lost its argument on the question that really mattered. Johnson argued that it was irrelevant whether he had interpreted the Ministerial Code correctly because he was the sole arbiter of it. Rather than the prime minister’s interpretation and enforcement of the Code being ultimately subject to judicial review, its enforcement both began and ended on the prime minister’s desk. This was not a conclusion Lord Justice Lewis was willing to reach. Instead, he found that parts of the ministerial code could be justiciable. Even though the prime minister was the ‘ultimate arbiter’ of the code, it did not mean that he could ‘give the words used any meaning he chose’. Lewis LJ was still keen to emphasise that there may be some areas in which the courts will not intervene, and where judges will decide that the matter is one to be played out in the political arena. However, the fact that the prime minister’s decision is a political one with political consequences does not presumptively rule out judicial scrutiny, as the Supreme Court wrote in Miller II.

Johnson and his Chancellor, Rishi Sunak, seem determined to ride out the political storm, staying in office despite having been issued with a fixed penalty notice. It may be then, that the courts are asked to decide if the prime minister should – or must – offer his resignation to the House of Commons. Under the ministerial code, ministers who ‘knowingly mislead parliament’ will be ‘expected to offer their resignation to the prime minister’. Setting aside the peculiarity that would be Johnson offering his resignation to himself – although Brexit accustomed him particularly well to seeing both sides of an issue – there is little question that Johnson misled parliament, regardless of what he might claim.

Over the course of December, the prime minister told the House of Commons that ‘all guidance was completely followed in No. 10’, that he had been ‘repeatedly assured that the rules were not broken’ and that ‘I am sure that whatever happened…the guidance…and the rules were followed at all times’. Clearly, the Metropolitan Police saw things differently. Originally slow to investigate the alleged breaches, they have issued over fifty FPNs to date over the various parties that were held in Downing Street during lockdown. So far, Johnson has only received an FPN relating to a ‘birthday party’ organised by his wife, Carrie Johnson, on 7th July. It may be plausible for him to argue that on this occasion, it was done in the middle of the working day, and that he thought it was technically permissible. But as the FPNs almost inevitably pile up (with the prime minister linked to at least six parties under investigation), this excuse is going to look ever more threadbare.

If Johnson pays the fine(s), it would be stretching credulity for him to sustain the argument that he had not misled Parliament and was not guilty as charged. And if he genuinely believes that he hasn’t committed an offence, it is not unreasonable to ask him to prove it in the courts, refusing to pay the fine and challenging the police to prove their case. Although given the evidence currently in the public domain, only an idiot would expect anything other than a conviction. This evidence shows prime minister attending parties left, right and centre – and it is almost certain that the police have even more incriminating evidence still under lock and key.

Now that the first crack has appeared in the ministerial code’s invulnerability to judicial scrutiny – and assuming that Johnson continues to refuse to do the honourable thing – a legal challenge to his failure to resign is possible, if not probable. Had the High Court not already ruled that the ministerial code was open to judicial review, it is doubtful that the thought of judicially reviewing the failure of the prime minister to resign would even be thought, let alone voiced. But with this chink in the armour now showing through, the prospect of landing the fatal blow to Johnson’s prime ministerial career is likely to be too much to resist. Even if the prospects of success are slim, the political embarrassment that such a lawsuit would cause would be worth it to some, like those at the Good Law Project.

And the prospects of success are slim. It is one thing for the courts to hold that the ministerial code is justiciable, and quite another for them to go from that to holding that the prime minister must resign for breaching it. Even in his judgment in FDA, Lewis LJ suggested that the ‘decision to dismiss or retain a minister’ would not be justiciable on its face. But as Hannah White at the Institute for Government has posted, ‘knowingly’ misleading parliament is an automatic resignation offence. Similarly, the ministerial code places an express – and hardly unreasonable – obligation on ministers to ‘comply with the law’.

Our constitution is therefore once more at an impasse. It is a foundational principle of the rule of law that individuals cannot be a judge in their own cause. Yet that is the position that the ministerial code places the prime minister in. Doubtless, the drafters assumed that the prime minister would be a ‘good chap’, respecting constitutional norms and principles, not wiping his feet on them. And the notion that the prime minister is one of those would be something that even his most ardent defenders would struggle to get to grips with.

Even if Lord Geidt, the prime minister’s latest adviser on ministerial standards, is dragged into action once more, he can do nothing but advise the prime minister that he has broken the code – his decisions have no binding force. (Something that his predecessor, Sir Alex Allen, discovered when his recommendations on Priti Patel’s bullying were resolutely ignored.)

Although the Supreme Court has been slow to interfere in questions of policy, it has been less willing to let violations of constitutional fundamentals slide. In Evans, the court refused to let the Attorney General unilaterally overturn a judicial decision, while in Miller II, it concluded that the prime minister’s power over prorogation was not unfettered, as it would leave Parliament at the whim of the executive. The prime minister’s decision that he has not misled the House, and is not in violation of the ministerial code, closely resembles these cases. It raises a question of fundamental constitutional importance and involves a clear violation of institutional norms and rules.

The Supreme Court may be unlikely to rule against the prime minister, but it’s not a foregone conclusion to say it won’t.