No safe passage for whistleblowers

Written by Civil Service World on 15 April 2013 in Feature

Public services are generally improved by giving employees the confidence to speak out against bad practice. But as Colin Marrs discovers, there are doubts over the existing frameworks’ ability to protect whistleblowers

Lately it has been difficult to avoid newspaper articles relating to whistleblowing – or the lack of it. In the NHS, trusts’ ‘gagging clauses’ have been roundly condemned for covering up instances of poor care. At the Care Quality Commission, former chief Dame Jo Williams last year tried to sack one of her own board members after they spoke out publicly to condemn the watchdog’s distorted priorities. At the Food Standards Agency, information that food had been contaminated with the horse drug Bute was only released when a whistleblower told a politician. And in the Jimmy Savile case, rumours about his abuse were widespread within the organisation – but people kept quiet.

It seems that for every tale of a brave individual risking their career to shed light on malpractice, another emerges in which it’s clear that wrongdoing has been tolerated for far too long before the truth emerged – Mid Staffs NHS Trust, for example. Many people are still very reluctant to blow the whistle on bad behaviour, whether through formal, internal organisational channels or by going public. Although the UK is viewed abroad as a model of good practice in the area, according to whistleblowing charity Public Concern at Work (PCAW), there are doubts over whether our current framework is still fit for purpose.

PCAW has established a commission to investigate whether current legislation and policy is adequate and effective in giving concerned employees the confidence to tell managers, politicians or journalists about their concerns. Chaired by former Appeal Court judge Sir Anthony Hooper, it is currently conducting research with a view to deciding whether regulators should be doing more, how appropriate whistleblowing can be incentivised, and whether individuals who raise justifiable concerns are effectively protected.

In recent months the LIBOR rates affair, various care home revelations, and even the reports of the Leveson and Francis inquiries have revealed instances where staff have stayed silent rather than speak out – either because they feared that blowing the whistle would damage their career, or because they believed no action would be taken. And in many cases, people are probably right to be concerned: when HMRC lawyer Osita Mba told select committees that second permanent secretary Dave Hartnett had misled them over corporate tax write-offs, his employer embarked on lengthy disciplinary proceedings – despite what Public Accounts Committee chair Margaret Hodge called his “vital contribution” to her committee’s investigation.

Gary Walker, former chief executive of United Lincolnshire Hospitals Trust, also had a nasty experience after he broke a ‘gagging clause’ – signed on his departure in 2010 – to claim that he was forced out of his job because he put patient safety ahead of Whitehall targets. After Walker spoke out, the trust’s solicitors threatened legal action to recover his rumoured £500,000 pay-off. Attacked by the Commons’ Health Committee chair Stephen Dorrell and the Today programme – among others – the trust eventually backed down, while health secretary Jeremy Hunt made it clear that gagging clauses are unacceptable if disclosure of information is in the public interest.

So what is the legal position of civil servants who feel they should raise the alarm over bad practice? Every civil servant is bound by the Civil Service Code, which forms part of their terms and conditions of employment. The code describes the standards of behaviour expected of them, judged against the four key values of integrity, honesty, objectivity and impartiality. In 2010, following the recommendation of a Public Administration Select Committee (PASC) report, the Civil Service Commission clarified its guidance on how civil servants should flag up suspected breaches.

In most cases, the guidance says, concerns should be raised with line managers or through the officers appointed in each department to advise on the code. If a whistleblower isn’t happy with the result of a subsequent internal investigation, the Civil Service Commission can be approached to investigate. If departments fail to follow its recommendations, it can raise the issue with the permanent secretary or the cabinet secretary and, as a final resort, with PASC or the Committee on Standards in Public Life.

In 2011-12 the commission received just 16 approaches under the framework, a spokesperson says, of which 13 were deemed “non valid”. The spokesperson comments: “The commission does not receive very many complaints under the code. It is not easy to know what this means: whether there were not great numbers of civil servants with ethical concerns; or that concerns were being dealt with effectively at departmental level; or that staff had concerns but did not feel confident to raise them.”

Francesca West, policy manager at PCAW, says that although the code encourages employees to report evidence of criminal activity to the police or other regulatory authorities, it fails to make explicit other paths available under the 1998 Public Interest Disclosure Act (PIDA), which governs whistleblowing in the workplace. “In certain circumstances, PIDA gives employees protection if they take their concern to the media or an MP,” she says. “However, the implication of the code is that if you are not happy with the commission’s response then your only option is to stay quiet or resign.”

West says guidance on whistleblowing drawn up at departmental level is difficult to assess because it is not made public; PCAW is currently making Freedom of Information requests in order to access the latest versions. And she adds that civil servants must consider their Official Secrets Act obligations before pursuing a complaint. “If you are in a situation where the wrongdoing you are trying to highlight is covered by this Act, then you have very limited options.”

Asked to explain whether civil servants raising matters subject to the Official Secrets Act with the Civil Service Commission would be protected, the commission spokesperson’s reply provided a less than cast-iron guarantee: “The code permits civil servants to raise concerns with the commission – regardless of subject. It is our policy to treat all information brought to us under the code as confidential. If the information were considered to be particularly sensitive, it would be for the commission to decide how it should be handled, and it would do so on a case-by-case basis.”

Roger Kline, adviser to health campaign group Patients First and author of a guide to whistleblowing released this week, says the growing body of case law relating to PIDA indicates that the legislation needs to be updated. In 2011, the Appeal Court found that PIDA did not provide legal protection from bullying by fellow employees for three nurses who were victimised after they blew the whistle on a colleague who had lied about his qualifications: they were only protected from being scapegoated by managers. “The government has said that it will close that loophole,” says Kline. He also calls for more clarity on whether agency workers are covered by the Act, and says that a requirement that concerns must be raised in good faith puts an unreasonable burden of proof on the whistleblowers and should be reworded.

Lord Touhig, involved in the drafting of the original Public Interest Disclosure Bill, says: “I think there is a body of evidence that suggests there are failings in the current Act: many people think it gives them protection where it doesn’t actually do so. It will probably need some amendments to legislation to make it fit for contemporary circumstances.” He says government ministers have indicated to him that they will cooperate with the PCAW commission and consider changes to the law. CSW approached the Cabinet Office for a comment on the matter, but it had not responded by the time we went to press.

Stephen Dorrell argues that better enforcement of the current rules may be adequate, warning against any moves which would result in more bureaucracy. He believes culture change will achieve far better results, saying: “A healthy organisation should accept challenge as a way of life, and a person shouldn’t feel themselves to be a whistleblower at all by voicing worries.”

West is clear on this point: it is in departments’ own interests to be open to dealing with issues of concern at an early stage. “If you get it right, you detect malpractice before it becomes a reputational damage issue,” she says. “Encouraging staff to raise worries means you don’t get so much wrongdoing, because those thinking of committing it know it will be picked up.”

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