[2025] UKUT 114 (AAC)

There are two relevant versions of the Ministerial Code of Conduct, the first approved by Mrs May in January 2018 (which was in force until August 2019) and the second approved by Mr Johnson and in force after that date, which were set out in the decision of the Tribunal (I have inserted in square brackets other relevant provisions not set out by the Tribunal):

“22.

The tribunal was supplied with two versions of the Ministerial code, that approved by Mrs May and in force until August 2019 and that approved by Mr Johnson and in force after that date. While the foreword by the Prime Minister differs between the two (with Mrs May saying, "Parliament and Whitehall are special places in our democracy, but they are also places of work too, and exactly the same standards and norms should govern them as govern any other workplace. We need to establish a new culture of respect at the centre of our public life: one in which everyone can feel confident that they are working in a safe and secure environment" and Mr Johnson saying, "there must be no bullying and no harassment; no leaking; no breach of collective responsibility" and making explicit reference to the intention to leave the European Union and emphasising his policy imperative – "Crucially, there must be no delay - and no misuse of process or procedure by any individual Minister that would seek to stall the collective decisions necessary to deliver Brexit and secure the wider changes needed across our United Kingdom"), the operative provisions of the Code (which in both cases annexes the principles of Public Life and the Business Appointments Rules) appear to be the same. The code sets out the ten principles of Ministerial conduct and then provide for the central role of the Prime Minister:

[1.1 Ministers of the Crown are expected to maintain high standards of behaviour and to beave in a way that upholds the highest standards of propriety(emphasis in the original)]

1.3…

a.

The principle of collective responsibility applies to all Government Ministers;

b.

Ministers have a duty to Parliament to account, and be held to account, for the policies, decisions and actions of their departments and agencies;

c.

It is of paramount importance that Ministers give accurate and truthful information to Parliament, correcting any inadvertent error at the earliest opportunity. Ministers who knowingly mislead Parliament will be expected to offer their resignation to the Prime Minister;

d.

Ministers should be as open as possible with Parliament and the public, refusing to provide information only when disclosure would not be in the public interest, which should be decided in accordance with the relevant statutes and the Freedom of Information Act 2000;

e.

Ministers should similarly require civil servants who give evidence before Parliamentary Committees on their behalf and under their direction to be as helpful as possible in providing accurate, truthful and full information in accordance with the duties and responsibilities of civil servants as set out in the Civil Service Code;

f.

Ministers must ensure that no conflict arises, or appears to arise, between their public duties and their private interests;

g.

Ministers should not accept any gift or hospitality which might, or might reasonably appear to, compromise their judgement or place them under an improper obligation;

h.

Ministers in the House of Commons must keep separate their roles as Minister and constituency Member;

i.

Ministers must not use government resources for Party political purposes; and

j.

Ministers must uphold the political impartiality of the Civil Service and not ask civil servants to act in any way which would conflict with the Civil Service Code asset out in the Constitutional Reform and Governance Act 2010.

1.4

It is not the role of the Cabinet Secretary or other officials to enforce the Code. If there is an allegation about a breach of the Code, and the Prime Minister, having consulted the Cabinet Secretary feels that it warrants further investigation, she will refer the matter to the independent adviser on Ministers’ interests.

[1.5 The Code provides guidance to Ministers on how they should act and arrange their affairs in order to uphold these standards. It lists the principles which may apply in particular situations. It applies to all members of the Government and covers Parliamentary Private Secretaries in paragraphs 3.7–3.12.

1.6

Ministers are personally responsible for deciding how to act and conduct themselves in the light of the Code and for justifying their actions and conduct to Parliament and the public. However, Ministers only remain in office for so long as they retain the confidence of the Prime Minister. She is the ultimate judge of the standards of behaviour expected of a Minister and the appropriate consequences of a breach of those standards.”

23.

The first annex sets out the principles of public life formulated under Lord Nolan's guidance at the request of the then Prime Minister in 1995:

1 Selflessness

Holders of public office should act solely in terms of the public interest.

2 Integrity

Holders of public office must avoid placing themselves under any obligation to people or organisations that might try inappropriately to influence them in their work. They should not act or take decisions in order to gain financial or other material benefits for themselves, their family, or their friends. They must declare and resolve any interests and relationships.

3 Objectivity

Holders of public office must act and take decisions impartially, fairly and on merit, using the best evidence and without discrimination or bias.

4 Accountability

Holders of public office are accountable to the public for their decisions and actions and must submit themselves to the scrutiny necessary to ensure this.

5 Openness

Holders of public office should act and take decisions in an open and transparent manner. Information should not be withheld from the public unless there are clear and lawful reasons for so doing.

6 Honesty

Holders of public office should be truthful.

7 Leadership

Holders of public office should exhibit these principles in their own behaviour and treat others with respect. They should actively promote and robustly support the principles and challenge poor behaviour wherever it occurs.

24.

The Civil Service Code issued under s7 of the Constitutional Reform and Governance Act 2010 requires civil servants to act with integrity, honesty, objectivity and impartiality and explains the importance of these values:

"'integrity' is putting the obligations of public service above your own personal interests

'honesty' is being truthful and open

'objectivity' is basing your advice and decisions on rigorous analysis of the evidence

'impartiality' is acting solely according to the merits of the case and serving equally well governments of different political persuasions

These core values support good government and ensure the achievement of the highest possible standards in all that the Civil Service does. This in turn helps the Civil Service to gain and retain the respect of ministers, Parliament, the public and its customers."”

The key passage of the 2018 Code for the purposes of this appeal is found at section 7, which was headed “Ministers’ private interests”. Under the heading “Acceptance of appointments after leaving ministerial office”, paragraph 7.25 stated:

“On leaving office, Ministers will be prohibited from lobbying Government for two years. They must also seek advice from the independent Advisory Committee on Business Appointments (ACoBA) about any appointments or employment they wish to take up within two years of leaving office. Former Ministers must ensure that no new appointments are announced, or taken up, before the Committee has been able to provide its advice. To ensure that Ministers are fully aware of their future obligations in respect of outside appointments after leaving office, the Business Appointment Rules are attached at Annex B. Former Ministers must abide by the advice of the Committee which will be published by the Committee when a role is announced or taken up.”

The purpose of the Code was considered by the Divisional Court in R (FDA) v Prime Minister and Minister for the Civil Service [2021] EWHC 3279 (Admin) (“FDA”), a case which concerned allegations made by Home Office civil servants that Ms Patel had engaged in bullying and thereby acted in breach of the Code. In rejecting the Prime Minister’s arguments that paragraph 1.21 of the Code (which provided that “Harassing, bullying or other inappropriate or discriminating behaviour wherever it takes place is not consistent with the Ministerial Code and will not be tolerated”) was not justiciable, the Divisional Court explained at [41] (with emphasis added):

“We accept that certain decisions — such as the decision to dismiss or retain a minister in office —would not be justiciable. We do not, however, accept the submission of the defendant that the sole purpose of the Ministerial Code is to determine the standards that ministers must meet in order to retain the confidence of the Prime Minister. The Ministerial Code prescribes the standards that ministers are expected to comply with. As it says in paragraphs 1.5 and 1.6 in the present version, it gives guidance to ministers on how they should act and arrange their affairs. Ministers are personally responsible for deciding how to act and how to conduct themselves in the light of the Ministerial Code and for justifying their actions including to the

public. As such, the Ministerial Code does more than simply describe circumstances in which the Prime Minister may cease to have confidence in a minister. Indeed, while the fact that a minister only holds office if the Prime Minister continues to have confidence in him or her has always been the context in which the Prime Minister issued the Ministerial Code, it was only in 1997 that that fact was explicitly included in the way now provided for in the final sentence of paragraph 1.6 of the current version of the Ministerial Code.”

The Court in FDA further explained at [60] that, although the Prime Minister is the “arbiter of the code”, this “is not intended to mean that it is for the Prime Minister to give any interpretation he chooses to the words used in the Ministerial Code”.