Have you been Malcolm Tuckered? Bullying in public office

22 Feb 2024

Local Government

Cornerstone on Councillors’ Conduct and Standards in Public Life

By Matt Lewin

Today Cornerstone on Councillors’ Conduct and Standards in Public Life is published by Bloomsbury Professional.  You can order a copy here.

This article is the latest in a series of articles to mark the book’s publication in which I share with you some of the many interesting topics it covers.

The deep state?

Only this morning it has been reported that former Prime Minister Liz Truss, addressing the Conservative Political Action Conference in the US yeterday, attacked the “deep state” of “quangos, bureaucrats and lawyers”.

In recent years, former colleagues of hers in government have railed against the so-called “Blob” – civil servants resisting ministers’ efforts to pursue their political agenda – a characterisation criticised by the Cabinet Secretary as “insulting, dehumanising, totally unacceptable”.

Those who make it to top political office are typically highly driven and ambitious.  When  Adam Tolley KC upheld complaints of bullying about former Deputy Prime Minister Dominic Raab, his reportdescribed Raab as “demanding, driven and focused on detail.  … He can be impatient and will become frustrated when others do not deliver what he requires.”

It is inevitable, in most working environments, that personalities will clash – that’s especially likely when politics and power are thrown into the mix.  In my experience, one of the trickiest questions in the field of standards in public life is where to draw the line between holding colleagues to account for their professional performance and bullying.

Constructive criticism and toxic feedback

What is bullying?  Unlike some forms of prohibited conduct (like harassment and discrimination) it has no formal legal definition.

Virtually all codes of conduct contain a rule against bullying and many adopt a definition issued by ACAS:

“…offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, or causes physical or emotional harm to the recipient. Bullying might be a regular pattern of behaviour or a one-off incident, happen face-to-face, on social media, in emails or phone calls, happen in the workplace or at work social events and may not always be obvious or noticed by others”

This definition was endorsed by the High Court in R (FDA) v Prime Minister and Minister for the Civil Service [2021] EWHC 3279 (Admin), a challenge brought against the former Prime Minister Boris Johnson’s decision not to sack then Home Secretary Priti Patel following allegations of bullying made by the Home Office Permanent Secretary.

The definition of bullying as it appears in the Ministerial Code was also considered by Sir Alex Allan(the former Independent Adviser on Ministers’ Interests whose advice that Patel was guilty of bullying was rejected by the Prime Minister).  He noted the important distinction between “legitimate, reasonable and constructive criticism of a worker’s performance” and “intimidating or insulting behaviour that makes an individual feel uncomfortable, frightened, less respected or put down”.

In Sir Alex’s view, only the latter would amount to bullying.

“I’m sorry if you were offended”

Perhaps more significantly, the court in FDA also held that offensive, intimidating, malicious or insulting behaviour can amount to bullying even if the perpetrator does not intend to harm the victim (or is even aware that their behaviour is having that effect).

This appears to mark a shift from earlier cases, such as Heesom v Public Services Ombudsman for Wales [2014] EWHC 1504 (Admin), in which the High Court held that “[b]ullying does not require any lengthy course but does require … some intention (‘attempt’) on the perpetrator’s behalf to undermine the individual who is the object of the conduct …”

This point was well-illustrated in Dominic Raab’s case.  Having cycled through a number of government jobs, by late 2022 eight formal complaints about his behaviour had been submitted by civil servants from four of his former departments.  Adam Tolley KC was commissioned by the Prime Minister to make findings of fact in relation to each complaint.

In his report, Tolley distinguished between “abrasive” behaviour – which feels like bullying but is not intended to be so – and “abusive” behaviour – which is targeted and intended to “put someone down”.  He noted that, in light of the FDA case, intention was not determinative, meaning both types of behaviour could amount to bullying.

In upholding two of the eight complaints, Tolley found that Raab’s management style was “intimidating, in the sense of unreasonable and aggressive conduct in the context of a work meeting” and “in the sense of going further than was necessary or appropriate in delivering critical feedback” and that it was also “insulting, in the sense of making unconstructive critical comments about the quality of work done (whether or not as a matter of substance any criticism was justified)”.

Raab resigned the day after Tolley’s report was published.  His resignation letter argued that “[i]n setting the threshold for bullying so low, this inquiry has set a dangerous precedent”.

So you’ve been publicly shamed

In recent years the media have reported countless off-the-record briefings about alleged “wokeness”and intransigence in the civil service.

However, last year the Committee on Standards in Public Life strongly condemned this kind of public criticism , describing it as contributing to low morale among civil servants and damaging to staff retention.

As the cases above recognise, and as fans of Yes, Minister will be know all too well, legitimate, constructive criticism by elected representatives of non-elected public officials is an important aspect of government.

In Heesom, the court acknowledged that the “acceptable limits of criticism are wider for non-elected public servants acting in an official capacity than for private individuals, because, as a result of their being in public service, it is appropriate that their actions and behaviour are subject to more thorough scrutiny”.

As a general rule, however, the cases suggest it will rarely be appropriate to air that criticism in public, at least without having followed proper internal channels first.  Many of the cases involving bullying which I have dealt with in recent years have involved politicians airing their grievances online.  Given the convention that officials have no public right of reply, such behaviour will very likely amount to bullying in most cases.

The “snivel service” strikes back

In our democratic system politicians enjoy a mandate from the electorate and have only a fleeting opportunity to make their mark in office.  They are right to expect high standards from their officials and that the basic division of responsibility – “officials advise, politicians decide” – is respected by all.

Much of the criticism surrounding Raab’s resignation was that his behaviour lacked the classic hallmarks of a bully: shouting, swearing, physical intimidation.  As one commentator in The Spectatorput it: “Expecting staff to be punctual and to have the information you need to do your job is not bullying – it’s work.”

However, in many ways, this rather limited notion of bullying is out of step with contemporary expectations in the workplace.  As the number of politicians forced out of office for (allegations of) inappropriate behaviour towards their co-workers continues to mount, we appear to be in the midst of a decisive change in attitudes about what our elected representatives can and cannot get away with.

Matt Lewin is the editor of Cornerstone on Councillors’ Conduct and Standards in Public Life.

He is a particular specialist in the area of standards in public life and is regularly called on to act as an external investigator into allegations of misconduct by holders of public office, most recently by the Greater London Authority in relation to controversial comments about “far-right” ULEZ protestors made by the Mayor of London, Sadiq Khan.

Learn more about his practice here.