On 29 February 2020, Sir Philip Rutnam resigned from his post as permanent secretary at the Home Office. In a statement, he confirmed that he would be issuing a claim against the Home Office for constructive dismissal and claimed the Home Secretary, Priti Patel, had been involved in “a vicious and orchestrated briefing campaign” against him. In addition, he accused her of bullying staff at the Home Office, saying her “behaviour created fear and that needed some bravery to call out”. Ms Patel has vigorously denied the claims.

The employment tribunal to decide upon Sir Philip Rutnam’s claim for constructive dismissal is underway and will reportedly include a 10-day hearing, scheduled to take place from 20 September 2021.

On 2 March 2020, in answer to an urgent question in the House of Commons, the Minister for the Cabinet Office, Michael Gove, confirmed that the Cabinet Office had been asked by Prime Minister Boris Johnson to “establish the facts” regarding the allegations.

The outcome of the investigation by the Cabinet Office is the focus of an upcoming oral question on 2 November 2020: Lord Tyler to ask Her Majesty’s Government when they expect to publish the report of their investigation into allegations of bullying of officials by the Home Secretary.

Who is Sir Philip Rutnam?

Sir Philip Rutnam was permanent secretary at the Home Office from April 2017 until February 2020. Prior to that Sir Philip was the permanent secretary at the Department for Transport for five years and had previously held senior roles at the Department for Business, Innovation and Skills. He also worked at Ofcom.

On 29 February 2020, following what the Guardian described as “simmering tensions” between Sir Philip and Ms Patel, Sir Philip announced his resignation as permanent secretary. In a statement, he accused the Home Secretary of being involved in “a vicious and orchestrated briefing campaign” against him, noting that he had “very strong grounds to claim constructive, unfair dismissal”.

In addition, he claimed that evidence showed that there had been “a wider pattern of behaviour” and that he had received allegations that the Home Secretary’s conduct included “shouting and swearing, belittling people, making unreasonable and repeated demands—behaviour that created fear and that needed some bravery to call out”. Ms Patel has denied the claims.

On 2 March 2020, the then leader of the opposition, Jeremy Corbyn, asked an urgent question on “the recent apparent breaches of the ministerial code” and asked whether the matter would be referred to the Cabinet Office for further investigation. Responding for the Government, Michael Gove, the Minister for the Cabinet Office, confirmed that:

This Government always take any complaints relating to the ministerial code seriously, and in line with the process set out in the ministerial code, the Prime Minister has asked the Cabinet Office to establish the facts […] it is important that any investigation is thorough, rapid, independent, and authoritative. The cabinet secretary will be leading the work in accordance with the ministerial code, and with access to the independent adviser, Sir Alex Allan, and that will ensure a proper and fair inquiry.

Two days later, the Prime Minister, Boris Johnson, told the House of Commons:

The Home Secretary is doing an outstanding job and I have every confidence in her. If there are allegations, of course it is right that they should be properly investigated by the Cabinet Office, and that is what is happening.

What is the ministerial code?

The ministerial code is a set of rules and principles issued by the Prime Minister which outlines the standards of conduct for government ministers. The code applies to all government ministers. In addition, sections apply to parliamentary private secretaries and special advisers.

An unofficial form of guidance for ministers has been in existence since at least the second world war. In May 1992, an official guidance note for ministers, Questions of Procedure for Ministers, was published for the first time after what former Cabinet Secretary Lord Butler of Brockwell described as “a gallant campaign” by the academic Peter Hennessy (later Lord Hennessy of Nympsfield).

The code covers a range of issues, including: the principle of collective responsibility; proper and transparent engagement with Parliament; avoiding potential conflicts of interest; propriety and ethics; and how ministers work with the civil service.

In a recent debate on the subject in the House of Lords, Lord Norton of Louth (Conservative) drew attention to the work of Amy Baker in Prime Ministers and the Rule Book, which he said:

[D]raws attention to an important difference in perceptions, one very germane to today’s debate. The view of ministers and officials is that it is a guide. The public perception, certainly that of the media, is that it is a means by which to judge ministerial behaviour.

The code is regularly updated, with the most recent update having been in August 2019. The Prime Minister, Boris Johnson, stated in the foreword of the August 2019 edition that:

There must be no bullying and no harassment; no leaking; no breach of collective responsibility. No misuse of taxpayer money and no actual or perceived conflicts of interest. The precious principles of public life enshrined in this document—integrity, objectivity, accountability, transparency, honesty and leadership in the public interest—must be honoured at all times; as must the political impartiality of our much admired civil service.

Section 1.4 of the code outlines the process where a breach of code is alleged. In this circumstance the Prime Minister, having consulted the Cabinet Secretary, decides whether an investigation should be called. If an investigation is called “he may ask the Cabinet Office to investigate the facts of the case and/or refer the matter to the independent adviser on ministers’ interests”. Following any investigation, the Prime Minister will decide whether a breach of the code has occurred.

Who is running the inquiry?

Following Prime Minister Johnson’s request, an investigation was launched by the then Cabinet Secretary Sir Mark Sedwill (now Lord Sedwill). In addition, Helen McNamara, then Director General of Propriety and Ethics at the Cabinet Office, is reportedly involved in drafting the report, alongside the independent adviser on ministers’ interests, Sir Alex Allan. In September 2020, Sir Mark retired as Cabinet Secretary and was replaced by Simon Case.

In March 2020, the then Shadow Home Secretary, Diane Abbott, suggested that a “conclusive and independent” inquiry was necessary to investigate the allegations and “restore confidence” amongst civil servants.

The FDA trade union, which represents civil service managers, and which has supported Sir Philip Rutnam, has also called for an independent, lawyer-led inquiry into the allegations. Commenting on press reports in April that the process had been completed, with the Home Secretary potentially cleared of the allegations, the FDA was critical of the inquiry process. It stated:

It tells you everything that is wrong with investigations under the ministerial code that a process which is not written down, which contains no rights for those who might complain, that is determined in secret, alone by a Prime Minister who has already pledged his allegiance to the minister in advance, and which allows no right to transparency or challenge for anyone who complained, would then be leaked on the evening before the home secretary is due to appear before the [House of Commons] Home Affairs Select Committee.

The FDA have previously identified concerns regarding the manner in which civil servants can complain about treatment by ministers. It has called for an independent complaints process for civil servants, citing the complaints system recently introduced in Parliament. However, a Cabinet Office spokesperson has claimed that a “robust process” already exists for dealing with complaints:

Where a civil servant has experienced any form of bullying, harassment or discrimination by a minister they are able to raise this through their line management chain […] It will be escalated to the departmental permanent secretary and the Cabinet Office.

What next?

Although there have been several media reports regarding the outcomes and progress of the Cabinet Office investigation (see for example, BBC News, Civil Service World and Telegraph (£)) there has been little official comment to date.

In response to recent parliamentary questions regarding the publication on the report, the Government has stated that “to protect the interests of all involved the Government does not comment on the specifics of ongoing process. The Prime Minister will make any decision on the matter public once the process has concluded”.

In October 2020, the successor to Sir Mark Sedwill as Cabinet Secretary, Simon Case, gave evidence to the House of Commons Public Administration and Constitutional Affairs on the work of the Cabinet Office. Asked about the status of the investigation into the Home Secretary, Mr Case responded:

[…] the Prime Minister asked the Cabinet Office to establish the facts. Of course, that is done under the ministerial code. As the committee will well understand, under the code the Prime Minister is the arbiter of conduct […] What I can say is that I am sure the Prime Minister, once he has made his conclusions, will make them public at the end of the process.

Asked about whether the report would be published at the end of the process, he noted:

The Prime Minister is the arbiter of conduct. He is the one who has to draw conclusions from the process. It is then up to the Prime Minister, of course, to set out what he sees most fit at the end of that process.

Pressed on whether this meant that the decision to publish was one for the Prime Minister, he confirmed:

Absolutely. As the ultimate arbiter of the ministerial code, that is a matter that rests absolutely with the Prime Minister.

In October 2020, the Guardian reported that a timetable for the employment tribunal to decide upon Sir Philip Rutnam’s claim for constructive dismissal had been sent to the Home Office. This indicated that information should be exchanged on a voluntary basis by January, with witness statements expected to be exchanged by July and a 10-day hearing scheduled to take place from 20 September 2021.

Image by Steve Cadman on Wikimedia.