Priti Patel and bullying: what is the law?

Can a person whose behaviour constitutes bullying really be exonerated if there was “no intention” to bully, as the case of Priti Patel, UK Home Secrtary, suggests? The answer is fundamentally no – but overwhelmingly, yes, since workplace bullies throughout the country claim this defence in disciplinary proceedings – and usually successfully when their management is willing to give them the benefit of the doubt.

Can the bully be exonerated because she is working in a “challenging” job with people resistent to change, as Patel claimed? Again the answer is no. If you resort to bullying in these circumstances that would be bullying as a technique of management – and hence intentional; or you’ve simply lost it and should be moved from your post or at the very least get some retraining. But again the answer is “yes” since blaming the victims is always a good ploy for a manager facing a sympathetic disciplinary chair.

One hesitates to say that the Patel bullying scandal has set back the rights of employees making bullying allegations since the two excuses – “I didn’t mean it” and “they drove me to it” are standard tropes when such allegations are made. They have no basis in logic or law yet employers use them to find against staff making bullying claims or mitigate the offence to the extent that throwing in a bit of anger management is deemed sufficient to show something is being done.

The prime minister, Boris Johnson, is in the lucky position of having arbitrary powers under the Ministerial Code to throw out allegations however well founded. Employers have to show themselves acting more fairly and rationally in such cases and must have somewhat stricter codes of conduct, anti-bullying policies and disciplinary procedures. Nevertheless, whatever the rules, the complainant is at a disadvantage whenever an employer backs a bullying manager.

UK Parliament or Executive: which is top dog in Britain’s constitution?

Boris Johnson is telling all who are willing to listen that he has a mandate from the people to cling to his post as prime minister come what may. This gives him remarkable powers –  to ignore the long established traditions of his party and of Parliament regarding when a prime minister has run out of road and should resign.

Does he have any constitutional justification for his view? There have certainly been questions asked about whether Britain’s “sovereign” Parliament as important – or as sovereign – as we assumed. There can be heard the steady drumbeat of those who think Parliament is a secondary part of the British constitution – and should stand aside to let the Government govern and the Prime Minister have his way.

This is in contrast to, say, the barrister Lord Pannick in the second constitutional case launched by Gina Miller (R (Miller) v The Prime Minister 2019) on Boris Johnson’s prorogation of Parliament. Pannick was at pains to suggest, contrary to the generally held constitutional view, that Parliament (rather than simply laws passed by Parliament) was sovereign and so the Prime Minister’s power to prorogue (end the parliamentary session, dismissing MPs and peers until a new session is called) should be open to judicial oversight regarding the legality of its use, like most actions of the Executive (including those founded in the royal prerogative).  

The argument against Parliament
So the question arises, which is the premier body in the British constitution, which is top dog: the Executive or the Legislature? As it happens, the historian Robert Tombs had answered this question to his own satisfaction in the Times some weeks before Miller in a piece headlined: Parliament has no right to plot a Brexit coup.

A ‘sovereign’ Parliament hamstrung over Brexit – or taking control?

The UK Parliament is sovereign – but do those who know of and respect this constitutional principle really understand how limited Parliament’s sovereignty is? Much has been said of parliamentary sovereignty in light of Brexit: by those who wish to leave the European Union to reestablish UK parliamentary sovereignty; but also by those who feel Parliament could wrest decision-making about how the UK actually leaves from the flailing Government.

In fact Parliament is not sovereign in the sense that the collective will of MPs and/or Peers in the House of Lords holds sway. It is parliamentary legislation that is, in effect, sovereign. In the traditional formulation “the Crown in Parliament” is sovereign, meaning legislation having passed its three stages in the Commons, Lords and Royal Assent will be recognised by the courts. And, for the most part, it is the Government that brings legislation to Parliament, not individual MPs or Peers (though there are exceptions: see below).

One thing MPs can do is bring down the Government in a vote of no confidence. The assumption is that this leads to a General Election (under the Fixed-term Parliaments Act) – but there is also a useful traditional power for MPs to vote out the Government – and replace it without an election. This might be a handy ploy if there is enough cross-party opposition the Government’s Brexit approach – though it would amount to a parliamentary coup. The implications are looked at below (subhead: Bringing down the Government) and here in mor detail: Government of national unity? Possibly.

But generally in the great Brexit debate, Parliament has found itself somewhat constrained – hence some of the innovative procedural schemes that have come forward thanks to Dominic Grieve and others to allow backbenchers to “take back control”.

Lords committee issues new criticism of Theresa May over immigration

A UK Parliamentary committee has issued further criticism of Home Secretary Theresa May’s attempts to get flawed British immigration rules accepted by the courts.

May placed 290 pages of immigration code of practice rules in the House of Lords in an apparent kneejerk reaction to the Alvi case where the rules were struck down by the Supreme Court (reported here).

The court took the view that the Home Office was trying to treat the code as law for the purpose of barring immigration and for deportations even though they had passed through no proper parliamentary procedure. The day after the case, on 19 July, May sought to gain some sort of parliamentary sanction for the code by placing it before the Lords – a few days before their summer recess (the House of Commons was no longer sitting).

The House of Lords Secondary Legislation Scrutiny Committee has questioned this latest move on the grounds that the rules “may imperfectly achieve their policy objective”. Under the 1971 Immigration Act S.3(2) to count as legislation, such rules should lie in both Houses of Parliament for 40 days to allow parliamentarians to object or debate them if they wish – the so-called “negative procedure”.