Ombudsman castigates DTI over whistleblowing secrecy
6 September 2005
In a Report published today, Tuesday 6th September, the Parliamentary Ombudsman strongly criticises the Department of Trade & Industry (DTI) for the “inherently misleading” way it introduced regulations that prevent people learning about whistleblowing concerns raised under the Public Interest Disclosure Act.
The whistleblowing charity, Public Concern at Work, says that the regulations create a genuine risk that another Dr Shipman, Enron or immigration fiasco could continue undetected even where staff have spoken out. As the DTI’s regulations keep secret all information about cases that settle before hearing, the charity warns that “they encourage dangerous and fraudulent employers to buy off the whistleblower and cover-up their wrongdoing” . With 70% of whistleblowing claims settling each year (1), Public Concern at Work says that the regulations also make it impossible to assess if the whistleblowing law is being misused in litigation, be it by employers, employees or their advisers.
Damning Report
The Ombudsman, Ann Abraham, finds the DTI guilty of a catalogue of maladministration and incomprehensible conduct as it struggled to head off public criticism about the regulations (2). Fearful of a challenge in the courts and Parliament, the DTI introduced the regulations in secret during the parliamentary recess after it had lost a High Court case, in which Public Concern at Work had successfully argued that whistleblowing claims in employment tribunals should - following the practice in the higher courts - be on the public record.
The Ombudsman’s Report reveals that the DTI:
- was never honest with the High Court or the public about why it objected to information about tribunal claims being publicly available (3);
- launched a costly appeal it had no intention of pursuing so it could overturn the High Court decision in secret by regulations (4);
- repeatedly misled Public Concern at Work to try and head off all public criticism (5);
- failed to consider the public interest or to realise that whistleblowing claims “might involve matters of very great public interest” (6);
- issued a one-sided and unfair consultation in breach of Government rules, ignoring ‘powerful arguments’ for openness (7); and
- blocked parliamentary scrutiny by giving assurances it failed to keep (8).
Richard Shepherd, the Conservative MP who introduced the Public Interest Disclosure Act, said “This is the most critical Report I have read from the Ombudsman in over twenty years. It makes clear that officials and ministers at the DTI had no regard for the basic ethical rules that underpin our democratic constitution. Anyone interested in understanding the process of government and why it has lost so much public trust should read this Report.”
DTI to pay up for the trouble it caused
The Ombudsman’s Report has forced the DTI to apologise to Public Concern at Work and, exceptionally, to compensate the charity for the expense, time and trouble it incurred in trying to uphold the public interest in the face of the Department’s misconduct.
Accepting the apology and promised compensation, the charity’s director, Guy Dehn, said “We hope the DTI will now make clear it will not tolerate the self-serving and third rate conduct revealed in this Report. Unless the Department does, nobody can assume it will be straight with the courts or Parliament, let alone the press or the public.”
Blowing the whistle in the public interest
While the charity’s stand through its five year dispute with the DTI has been vindicated by the Ombudsman’s Report, Mr Dehn says that “The fundamental issue remains that these ill-conceived regulations subvert the whistleblowing legislation and undermine the public interest”.
Public Concern at Work says it is inevitable that the 500 whistleblowing cases that are settled in secret each year will detail more evidence – both by quantity and quality - of crimes, frauds and dangers than the 150 cases that are heard in tribunals. As all of these 650 cases are brought at public expense, in a public forum, under an Act about public interest disclosures the charity says it is at a loss to understand why the DTI is so keen to keep this information free of any public scrutiny.
To illustrate this point, the Prison Service this summer was ordered to pay £477,000 compensation to Carol Lingard, who was victimised for speaking out against serious wrongdoing in Wakefield Prison. The tribunal’s scathing decision brought the issue to the attention of the Director General of the Prison Service who told the BBC’s Today Programme that this had been an ‘ indefensible’ case which his Service ‘ needed to learn lessons from’. Yet had the case been settled before the hearing, the charity points out that under these regulations nobody would have heard of the incident, no lessons would have been learned and both the Prison Service and the public would be the worse off.
The charity also cites the current cross-party enquiry into the management of eb4u a £47 million regeneration project in East Brighton . The enquiry was set up after a exceptional warning by an employment tribunal about the project’s weak financial controls after it had heard the case of Robin Lucas who had been sacked for telling project bosses about the diversion of funds from her part of the project in breach of all controls. Had her case been settled before hearing, so keeping these concerns out of the public domain, there would be no fresh oversight to deter waste and abuse on this multi-million £ public funded project.
Public Concern at Work says this damaging and unjustified secrecy must be overturned. “When this issue is addressed free from the prejudice and maladministration of these past five years, we have every confidence that common sense will prevail”, says Mr Dehn. “ The question is will the public have to wait for a major disaster or scandal before this issue gets the open and honest consideration it so clearly deserves.”
News Coverage
To read some of the articles written about the Ombubsman’s report, click the links below.
The Price of Botheration - The NewStatesman 12 September 2005
Porky Pies at the DTI - The Guardian 12 September 2005
DTI Slated Over Whistleblowing Stance - The Financial Times 6 September 2005
DTI Pays Up for Breaking the Rules on Information - The Daily Telegraph 6 September 2005
(1) In 2004/5 there were 869 PIDA cases registered. Of the 696 that were disposed of during the year 493 (70%) were settled or withdrawn.
(2) Ombudsman’s Report Page 23 para 48 and page 40 para 84. The Ombudsman finds 8 separate grounds to criticise the DTI, 3 of which are ‘serious’. As to her finding that the DTI’s behaviour was incomprehensible, see note 3 below.
(3) Page 38, para 83, 1 st bullet. The DTI told the court, consultees and key interests that its concern was that the conciliation process could be harmed if the information in tribunal claims was not secret. It never claimed – as it has now told the Ombudsman – that its real concern was that the Government might be sued under the EC data protection directive for wrongly allowing a claimant’s personal information to be disclosed. This freshly revealed reason could only have been asserted by arguing that the UK’s Data Protection Act had not implemented the EC Directive correctly. The Ombudsman says, at page 45, that she ‘ cannot understand’ why the DTI - which had fallen out with other government departments over this issue - failed to have such a potentially important point clarified. She adds that the case with Public Concern at Work was an opportunity for the DTI and the Government to get a legal ruling to resolve the issue for once and for all.
(4) Page 39, para 83, penultimate bullet.
(5) Page 40, paras 85 & 86.
(6) Page 41, para 86 and page 47, para 97.
(7) Page 43, para 90/91.
(8) Page 44, para 93.