Defining the Boundaries within the Executive: Ministers, Special Advisers and the permanent Civil Service.


Public Concern at Work welcomes this review of the Sixth Report on Ministers, civil servants and special advisers. In this submission we address the issues raised in questions 9 (the efficacy of codes) and 11 (the role of the Civil Service Commissioners), with regard to whistleblowing.

Introduction
The early emphasis that the Committee placed on the role of whistleblowing in maintaining public confidence has been broadly welcomed by all interests, not least by Government in its support of the Public Interest Disclosure Act 1998 (PIDA). The recommendations of the Committee, the enlightened self-interest of organisations in whistleblowing, and the incentives provided by PIDA have contributed to an increasing recognition by leading employers (both public and private) of the value of an effective system for whistleblowing.

The Civil Service Code, the Code of Conduct for Special Advisers, the Civil Service Management Code and, most recently, the 2000 Guidance all contain provisions on civil servants blowing the whistle on all types of malpractice. A majority of government departments also have whistleblowing policies. In this submission, we make observations on whether these procedures provide civil servants who are concerned about malpractice with a safe alternative to silence about wrongdoing.

While we welcome the steps that have been taken, we consider that if these are to give officials through the Civil Service confidence to question or challenge wrongdoing, a simpler and more unified approach should be adopted. In making this recommendation we draw on the experience of our helpline in advising people whether or how to raise concerns about malpractice. This has provided us with an understanding of the anxieties experienced by people who witness wrongdoing or who are worried about management’s actual or presumed response. Both from our work on the helpline and from the services we provide organisations in and out of the public sector, we know that mixed messages about whistleblowing can only encourage the majority of the workforce to stay silent - whatever the risk their employer or the wider public is facing.

Properly promoted and understood in the Civil Service, the provisions of PIDA could help to promote accountability, deter and detect malpractice, and improve public confidence in public service. We hope this review provides the Committee, Ministers and the Civil Service with an opportunity to reassess whether provisions on whistleblowing in the various codes are working to their satisfaction.

The potential value of PIDA to the Civil Service

  1. PIDA has been in force for nearly three years and so far appears to be working well in practice. Though technically a piece of employment law, we consider it worth recalling the view of Lord Nolan that it so skilfully achieved “the essential but delicate balance in this measure between the public interest and the interest of employers.” 1
  2. The legislation has been promoted with some success in the NHS and, most recently, in the City. There the British Bankers Association said of PIDA that;
    “the benefits outweigh any disadvantages and indeed are in line with the new climate of corporate social responsibility which emphasises accountability to all stakeholders.” 2
  3. The Act applies, inter alia, across the Civil Service and will reassure officials who have genuine concerns about wrongdoing that it is safe and acceptable to raise such issues responsibly and that the law provides strong protection against reprisals if they raise the matter in line with the Act’s simple framework.
  4. Under PIDA, the confidentiality of the information is not the key - what matters is whether it is reasonably thought to indicate wrongdoing and with whom the concern is raised. Contractual provisions in employment contracts and in severance and other agreements that clash with the Act’s regime are void (section 43J).
  5. Official secrets are, however, accorded some additional protection. An official convicted of a secrecy offence for a disclosure is not protected under PIDA (section 43B(3)). Where the official has not been prosecuted, he will be protected under PIDA unless the Employment Tribunal is satisfied that he would have been convicted.
  6. PIDA covers concerns about a wide range of misconduct. Section 43B sets these out:
    • A crime
    • A failure by any person to comply with a legal obligation to which he is subject
    • A miscarriage of justice
    • A danger to the health or safety of any individual
    • Damage to the environment, or
    • The deliberate concealment of any of the above
    In the context of the Civil Service, the second point covers maladminstration, a breach of the Civil Service Code as well as a suspected breach of administrative law.
  7. As the essential aim of PIDA is to encourage workers to raise such concerns in the least damaging way, internal disclosures are most readily protected provided the disclosure is made in good faith. In the Civil Service, raising a concern internally would include raising it with a manager, a senior official, or through a channel authorised in a whistleblowing policy.
  8. PIDA also protects disclosures made in good faith to prescribed regulators (section 43F)
    • whether or not the matter is serious; and
    • whether the concern could or should have been raised internally;
    Such disclosures are not as fully protected as internal disclosures, in that the worker must also “reasonably believe that the information and any allegation in it are substantially true.” Prescribed regulators include the Health and Safety Executive, the Environment Agency and the National Audit Office.
  9. Wider disclosures (e.g. to the police, MPs, non-prescribed regulators and the media) are protected if, in addition to the test for regulator disclosures, they are reasonable in all the circumstances, are not made for personal gain, and meet one of four preconditions. These preconditions are that the worker;
    • reasonably believed that he or she would be victimised if he or she raised the matter internally or with a prescribed regulator;
    • reasonably believed that a cover-up was likely and there was no prescribed regulator;
    • had already raised the matter internally or with a prescribed regulator;
    • reasonably believed the concern was exceptionally serious.
    In deciding the reasonableness of the disclosure the tribunal will consider the identity of the person to whom it was made, the seriousness of the concern, whether the risk remains, and whether the disclosure breached a duty of confidence the employer owed a third party. Where the concern has been raised with the employer or a prescribed regulator, the reasonableness of its response will be particularly relevant. Finally, if the concern had first been raised with the employer, it is relevant whether any whistleblowing policy in the organisation was or should have been used.
  10. Finally PIDA does not encourage the anonymous leaking of information because (a) such action may raise questions about whether the disclosure was made in good faith and (b) anonymity makes it harder to establish that the employer’s action was a reprisal for legitimate whistleblowing as this would require evidence that the employer knew that that official had made the disclosure.

The Present Inquiry on Defining the Boundaries
For the reasons given below, we consider that the framework of PIDA outlined above offers the Government and the Civil Service an opportunity to define the boundaries between the executive, special advisers and the civil service and to deliver a more open culture.

How effective are the provisions of the Code of Conduct for Special Advisers and the Civil Service Code in dealing with breaches?
While we do not ourselves have first-hand evidence that the Codes are ineffective, we do believe that steps can sensibly be taken to simplify the present codes and to adopt one central provision for whistleblowing that closely reflects the regime that Parliament endorsed in PIDA.

Looking at the present Codes, it is unclear whether their primary purpose is to offer practical guidance to individuals concerned about suspected wrongdoing as to what they should do or, with hindsight, to judge whether an individual might be disciplined. We are concerned that differences between the Codes, together with language that some might find complex, may make the Codes poor guidance for any individual who is worried and unsure about what course to take. Even were these Codes to be used to discipline or sanction an official who had raised a concern about wrongdoing in good faith, we consider there is a risk that, as presently drafted, some provisions would fall foul of PIDA. Whether the purpose of the Codes is guidance or procedure, the Codes need to be accessible and useable if they are to be effective. We observe that putting the Codes in plain English might avoid confusion and so encourage civil servants concerned about malpractice to use them.

We suggest that the effectiveness of the Codes in dealing with breaches should first be assessed by how confident civil servants or special advisers are in using them to raise their concerns about such breaches. If the Codes provide poor guidance for individuals, there is a danger that concerns about serious Code breaches will not be raised, particularly if individuals fear that taking the wrong course might be held against them. In such a situation a concerned civil servant might feel that the only alternative to silence is to leak information anonymously outside the Civil Service.

Below we make points about each Code with the relevant provisions of the existing Codes set out in italics. We then make recommendations.

Code of Conduct for Special Advisers

22 Any civil servant who believes that the action of a special adviser goes beyond that adviser’s authority or breaches the Civil Service Code should raise the matter immediately with the Secretary of the Cabinet or the First Civil Service Commissioner, directly or through a senior civil servant.
While there is logic in detailing in the code governing special advisers how civil servants’ concerns about breaches are raised, we believe that practical disadvantages make this undesirable. First, as the provision recognises, the close relationship between a special adviser and a Minister may lead civil servants to believe that their careers will be damaged if they raise concerns about a special adviser’s conduct. As such we agree that a civil servant may well feel more confident raising their concerns with someone outside of their line management structure. However, to many civil servants we believe it would be perceived as an extreme, if not intimidating, step to contact the Secretary of the Cabinet, regardless of whether it is directly or indirectly. We are not certain that such an official would feel more confident raising concerns with the First Civil Service Commissioner, which again may seem like a big step.

This instruction to go to the top also gives two mixed messages. First it applies irrespective of how serious the presumed beach is. Secondly, it arises immediately and so may make an official doubt that unless he goes to the top at the outset, he himself may be disciplined if he delays - be it by pondering his actions or considering the grounds for his belief. In our experience, whistleblowing concerns can often helpfully be clarified or concerns addressed through discussions between a line or more senior manager and the concerned civil servant, without the need to go to the top.

While this procedure is aimed at civil servants, it is different from the procedures in the Civil Service Code (see below). Insofar as these Codes relate to raising concerns about malpractice, we believe that these procedures should be one and the same. Additionally it is not clear to us that it is safe or reasonable to assume that a civil servant concerned about malpractice by a special adviser will first have recourse to the Code of Conduct on Special Advisers. Equally the Code makes no explicit reference to how a special adviser might raise concerns about malpractice, be it by a civil servant or other.

Civil Service Code

10 Civil servants should not without authority disclose official information which has been communicated in confidence within the Administration, or received in confidence from others. Nothing in the Code should be taken as overriding existing statutory or common law obligations to keep confidential, or to disclose, certain information. They should not seek to frustrate or influence the policies, decisions or actions of Ministers, Assembly Secretaries or the National Assembly as a body by the unauthorised, improper or premature disclosure outside the Administration of any information to which they have had access as civil servants.
In our view, this paragraph of the Civil Service Code does not sit easily with PIDA and in particular the provisions in section 43J that void contractual clauses to the extent that they conflict with the Act. As the employer’s authority is not required for a disclosure to be protected under PIDA, the first sentence should be revised. We suggest that the following wording be considered.

Civil servants should not without authority or lawful justification disclose official information which has been communicated in confidence within the Administration, or received in confidence from others.

The provision in the second sentence does not effectively remedy the problem in the first sentence, as it refers only to statutory or common law obligations to disclose information. PIDA does not oblige anyone to make a disclosure, it simply protects him or her from reprisals where the disclosure meets the terms of the Act. Insofar as this second sentence is based on the need to protect against malicious or manipulative disclosures of official information, a civil servant will not receive PIDA protection if their disclosure is not made in good faith.

11 Where a civil servant believes he or she is being required to act in a way which:
  • is illegal, improper, or unethical;
  • is in breach of constitutional convention or a professional code;
  • may involve possible maladministration; or
  • is otherwise inconsistent with this Code;

he or she should report the matter in accordance with procedures laid down in the appropriate guidance or rules of conduct for their department or Administration. A civil servant should also report to the appropriate authorities evidence of criminal or unlawful activity by others and may also report in accordance with the relevant procedures if he or she becomes aware of other breaches of this Code or is required to act in a way which, for him or her, raises a fundamental issue of conscience.

12 Where a civil servant has reported the matter covered in paragraph 11 in accordance with the relevant procedures and believes that the response does not represent a reasonable response to the grounds of his or her concern, he or she may report the matter in writing to the Civil Service Commissioners, 35 Great Smith Street, London, SW1P 3BQ. Telephone 020 7276 2613.

On our reading of paragraph 11, this establishes three different procedures for raising three different types of concerns or possible breaches.

1. Being required to act in a way that is illegal, unethical, may involve maladministration, or which breaches constitutional convention or a professional code should be reported “in accordance with procedures laid down in the appropriate guidance or rules of conduct for their department or Administration.”

2. Criminal or unlawful activity should be reported “to the appropriate authorities”.

3. Other breaches of the Code or being required to act in a way which raises a fundamental issue of conscience may be reported “in accordance with the relevant procedures”.

This appears unnecessarily complicated to us. More significantly paragraph 11 does not provide suitably clear guidance for a civil servant who believes that he has witnessed serious malpractice and is unsure of what to do. As you will see from what we say below, we consider the approach in the Directory on Civil Service Guidance is more practical.

We believe that it is unhelpful to have paragraph 11 referring to both raising concerns about malpractice and dissenting on a matter of conscience (such as distributing condoms in schools). This appears to confuse issues of legality and ethics with issues of personal belief. We recommend that a separate section be devoted to issues of conscience.

As to differences from the Code on Special Advisers we note that the injunction that the concern be raised immediately does not appear in the general Civil Service Code. Additionally it is unclear to us how paragraphs 11 and 12 of the Civil Service Code relate to the Code of Conduct for Special Advisers. While we presume that the “appropriate guidance or rules of conduct” could refer to the Code of Conduct for Special Advisers, this is not clear. Where there is a conflict between the departmental provisions on whistleblowing and the Code of Special Advisers, a civil servant can only be confused. While para 12 suggests that an official should only go to the Civil Service Commissioners after he has raised the matter internally, this gives a contrary message to the Code on Special Advisers which provides that the First Civil Service Commissioner is a first port of call. If it is too much to assume that a civil servant will have read and considered the relevant codes, then in our view this in itself calls in question their efficacy. Assuming a civil servant has understood both Codes, they will face a dilemma as to which Code to follow. There is then a risk that they will be too confused to raise concerns about wrongdoing. The provisions of the Civil Service Management Code, which we now turn to, may further confuse this situation.

Civil Service Management Code
The Civil Service Management Code “sets out regulations and instructions to departments and agencies regarding the terms and conditions of service of civil servants”. As such, is important that its provisions are considered in regard to the other two Codes.

4.1.3 In particular
a) civil servants must not misuse information which they acquire in the course of their official duties, nor without authority disclose official information which has been communicated in confidence within Government, or received in confidence from others. They must not seek to frustrate the policies, decisions or actions of Government either by declining to take, or abstaining from, action which flows from ministerial decisions or by unauthorised, improper or premature disclosure outside the Government of any information to which they have had access as civil servants;

4.1.6 Departments and agencies must define the standards of conduct they require of their staff. They must:
a. make clear to staff their duties and obligations and the penalties they may incur if they fall short of them;

4.2.2 They must not, without relevant authorisation, disclose official information which has been communicated in confidence within the Government or received in confidence from others. [...]

4.2.3 Civil servants must continue to observe this duty of confidence after they have left Crown employment.

4.2.6 Civil servants must not seek to frustrate the policies or decisions of Ministers by the use or disclosure outside the Government of any information to which they have had access as civil servants.

These provisions may unwittingly trigger protection for wider disclosures under PIDA. As indicated from our above summary of the 1998 Act, there is a risk that these provisions would give a civil servant (or their lawyer) plausible grounds to argue that they reasonably believed that they would be disciplined if they raised a concern internally or with a prescribed regulator. It should also be borne in mind that disclosures of information are protected under PIDA whether or not the information is confidential. These risks may be increased by paragraph 4.5.6 -

4.5.6 It is for departments and agencies to define the circumstances in which initiation of disciplinary procedures may be appropriate. It is not necessary to attempt to define every circumstance. However, departments’ and agencies’ rules for staff must make clear the circumstances in which the application of the disciplinary procedures may be considered. These must include:...
(b) any other circumstance in which the behaviour, action or inaction of individuals significantly disrupts or damages the performance or reputation of the organisation.

Faced with serious malpractice, a civil servant may feel not disclosing information would harm the department but also fear that their superiors will view a disclosure also as harmful and so take disciplinary action against them.

We think it important that whistleblowing arrangements make it clear that their purpose is to enable the individual to raise a concern about some suspected malpractice so that those in authority are able to investigate it. We are concerned that the Management Code may give out the wrong signals and so may discourage individuals from using any of the Codes.

Insofar as labels reflect and inform perceptions, we think the use of the term ‘complaints’ in chapter 12 to refer to whistleblowing is unhelpful and could adversely affect the handling of breaches of the Codes. This is because the term complaint is generally used in circumstances where (a) the individual has some personal interest in the outcome of the matter, (b) the procedure is adversarial and (c) the individual is expected to prove their case. As currently worded, there is a risk that a civil servant may misunderstand the scope and purpose of the whistleblowing procedure and use it inappropriately. This risk is amplified because:

  • paragraph 12.1.1 introduces chapter 12 by stating that civil servants may appeal against management decisions that adversely affect them.
  • the section in chapter 12 that deals with whistleblowing is entitled “Appeals under the Civil Service Code”.
  • the emphasis in paragraph 12.1.6. is that the procedure is aimed at least as much on crises of conscience as at concerns about malpractice or misconduct.

Paragraph 12.1.6 of the Management Code is very similar to paragraph 11 of the Civil Service Code and so our earlier comments apply. However, chapter 12 of the Management Code appears to place additional requirements on civil servants with concerns and we believe that this could confuse civil servants looking for guidance. It also risks a civil servant who has only read the Civil Service Code taking action that might appear to be incorrect under the Management Code.

12.1.8. Departments and agencies must establish clearly defined formal procedures for handling complaints. While many complaints will be raised through the management line, there should also be a nominated official or officials who can be approached in confidence in the first instance. The internal resolution procedures will normally involve the Permanent Head of Department or Agency Chief Executive. Departments and agencies should ensure that staff feel confident to voice complaints, and are not penalised for raising concerns in accordance with the procedures. Clear guidance on the procedures should be available to staff.

We welcome the clear obligation on departments and agencies in paragraph 12.1.8 to establish user-friendly whistleblowing arrangements and the emphasis placed on the role these bodies play in encouraging effective whistleblowing. The approach in paragraph 12.1.8 - which appears to instruct departments to establish the procedures referred to in the Civil Service Code - seems to us practical and accessible. However, our reservations about the use of the word ‘complaint’ again apply and we feel that the paragraph (taken in the context of chapter 12) does not sufficiently clarify matters. Finally, departmental procedures are not mentioned in the Code of Conduct for Special Advisers and this might create confusion for a civil servant seeking information on how to raise concerns.

12.1.11. It will sometimes occur that the instruction which is subject to complaint under paragraph 11 of the Civil Service Code is urgent, and the full process for internal review cannot be completed within the timescale for the action in question. Events may develop so quickly that there is insufficient time to complete the steps described, or senior staff may not be immediately available. In such cases, the civil servant wishing to raise a concern, if satisfied that there is no alternative action available under the procedure, and provided it would not put him or her in clear breach of the law, should carry out the request or instruction in question and immediately afterwards formally record in writing their dissent and the reasons for it. That minute should be sent to the Head of Department, or Chief Executive of the agency, who should advise the departmental Minister, if appropriate. Procedures for internal review and complaint to the Commissioners may still be followed after the event if the individual has a continuing concern about the action they were required to take.

This paragraph does not mention the Code of Conduct for Special Advisers, with which its provisions are inconsistent. It appears to elaborate on the obligations in the Civil Service Code, while we would have expected the Management Code to address how such concerns are handled by those managers with whom the concern is raised.

The Directory of Civil Service Guidance
This 2000 publication, which replaced the 1996 Guidance on Guidance, gives further advice on whistleblowing (vol 2, pp 54/5). This gives a good summary of the Act and in paras 6-7 states that

6. The Civil Service Code advises that you should report any actions that are inconsistent with its provisions (paragraph 11). First you should raise the issue with your line manager. If for any reason you would find that difficult you should report the matter to the nominated appeals officer within your department.

7. If you are unhappy with the response you receive, you may report the matters to the Civil Service Commissioners (paragraph 12 of the Civil Service Code). Exceptionally the Civil Service Commissioners will consider accepting a complaint direct.

This is welcome general guidance, though it is more introspective than PIDA. We find it difficult to reconcile with the Civil Service Code which states in para 11 that concerns involving malpractice by others should be raised with the ‘appropriate authorities’ and note that it is not consistent with the Code on Special Advisers.

The reason that PIDA protects disclosures to statutory regulators is that the existence of such protection makes it more likely that concerns will be properly raised and addressed internally. However this beneficial effect can only be achieved if staff and managers are aware of the external route. Contrary to the spirit and letter of PIDA, paragraph 8 of the Guidance states

8. These procedures should also be used if you wish to make any other disclosure covered by the 1998 Act

The final section of the Guidance emphasises this different approach and is difficult to reconcile with the legislation:

Will I be protected if I blow the whistle before going through the internal procedures?
9. Only you can make this judgement, and in doing so you will need to consider the preceding paragraphs carefully. It is preferable and this is as the heart of the Public Interest Disclosure Act to raise the matter internally if appropriate and practical. It is after all in the interests of the organisation and its workforce that issues and concerns are aired in this way. If you are in any doubt you should speak to your departmental nominated officer. You conversation will be treated in absolute confidence

First, this fails to see the internal disclosure as whistleblowing. Secondly, it gives an overly complicated and negative impression of the protection available where an official goes, say, to the National Audit Office, the Information Commissioner or another prescribed regulator. Thirdly, as expressed it appears to put the departmental nominated officer in an impossible position if he is told of some serious malpractice as he is expected to keep it confidential rather than see that it is dealt with in the Department’s interests.

Whistleblowing Policies
If an organisation has and promotes an effective whistleblowing policy,
a) staff will know and are more likely to feel confident about how to safely raise a concern
b) colleagues and managers will know that victimisation is unacceptable
c) the organisation will better deter and detect malpractice
d) wider, public disclosures will less likely be PIDA protected

Despite this strong incentive to introduce policies, the recommendations of the 1997 White Paper on the Governance of Public Bodies and the duty to introduce policies contained in the Civil Service Management Code, the number of departments with whistleblowing policies appears to remain low. HM Treasury’s Fraud Report for 2000-2001 stated that 59% of government departments that responded to its survey had “an established avenue for whistleblowers” 3. This figure has hardly increased since the passage of PIDA in 1998. An earlier report notes that in 1998-1999, only 55% of government departments had an avenue for whistleblowers 4. This is despite the requirement in the Management Code that departments establish whistleblowing policies and despite evidence from HM Treasury that whistleblowing is an effective means to detect fraud. In the Fraud Report for 2000-2001, 30% of detected fraud was discovered through information from a third party 5.

Awareness of the policies that already exist may also be low. When we telephoned a government department to ask for a copy of their whistleblowing policy the helpdesk operator informed us that they did not have one. Someone in the personnel office repeated this assertion and then asked us what whistleblowing was. After an explanation, we were put in touch with the person in charge of the whistleblowing policy. He informed us that the policy is located in the department’s staff handbook and on their intranet. If this department’s civil servants are not aware of the whistleblowing policy, they will not be able to use it. We are also concerned that faced with similar problems finding a policy, a worried civil servant may give up looking rather than risk drawing attention to their wish to use a whistleblowing policy or may leak information outside. We have no reason to believe that this example is untypical

PCaW recommendations
In its Sixth Report, the Committee discussed the merits of consolidating codes for special advisers and civil servants. The Committee decided that in the interests of accountability a single code would not be effective. We believe that if there are to be separate Civil Service Code, Code of Conduct for Special Advisers, and Civil Service Management Code it is important that they are clear and consistent with each other. We are not aware of compelling reasons for having different whistleblowing arrangements in each of these Codes.

  • In our view, the Civil Service could gain the most benefit by adopting a unified approach to whistleblowing that draws on the recommendations the Committee made in its earlier reports reflects PIDA. Following the guidance in the Directory of Civil Service Guidance this would provide that civil servants and special advisers should be encouraged to raise their concerns about breaches of the Codes with their line manager or a nominated person outside line management. It should also signal that external disclosures may also be protected. In our experience, such an approach reflects the natural inclinations of people concerned about malpractice at work and will be less intimidating and simpler than the current system. It will also remove or substantially reduce the inconsistencies that exist between the four documents. It is an approach that paragraph 12.1.8 of the Management Code already draws upon. While this could be achieved by making changes to the existing provisions in the four Codes, we suggest that consideration be given to establishing one clear and accessible provision in the Civil Service Code for whistleblowing and in the Management Code dealing with how concerns are handled.

To this end, the various whistleblowing provisions of the Codes could be consolidated in one place while the Management Code could set out how such concerns should be dealt with and how Departments should set up local procedures. We suggest that the general provision provides clear general guidance, while referring to departmental whistleblowing policies. One advantage of this approach is that it will put responsibility for the promotion of whistleblowing and an accountable culture on each department.

Is the role of the Civil Service Commissioners sufficiently understood? Should they have powers to intervene?
Since 1885, the Civil Service Commissioners have been responsible for upholding the principle of selection on merit to the Civil Service. In 1995, the Commissioners were given the additional responsibility of hearing and determining appeals made by civil servants under the Civil Service Code. The Commissioners perform a key role as the guardians of meritocratic selection to the Civil Service, but this function is different from overseeing compliance with a code of conduct such as the Civil Service Code. Redefining the Commissioners’ role could improve their ability to provide independent scrutiny for the Civil Service Code and make their role easier to understand.

In the Committee’s First Report it recommended that there should be independent scrutiny across all public life.

“First, wherever there is scope for behaviour falling below the highest standards, then internal systems must be supported by independent scrutiny and monitoring…[I]n certain circumstances an independent body to oversee the framework within which actions are taken and to monitor compliance can be an important additional safeguard in maintaining public confidence.” 6

We support this principle and believe that it should apply to the Civil Service. We believe that the Commissioners are the best body to provide independent scrutiny of the framework provided by the codes that govern conduct in the Civil Service. However, this is not how the Commissioners’ role appears as regards whistleblowing. The Civil Service (Amendment) Order in Council 1995 gave the Commissioners the ability to “hear and determine appeals to them by a member of the Service under the Civil Service Code …”.

It is unclear to us whether this appeal function is directed at investigating the treatment of civil servants who blow the whistle or investigating the wrongdoing on which they blew the whistle. The use of the term ‘appeals’ implies the former. Yet, the Civil Service Code implies the latter by stating that civil servants can appeal if they have raised “a matter in accordance with the relevant procedures and believes that the response does not represent a reasonable response to the grounds of your concern...” 7 The summaries of cases that appear in the Commissioners’ annual reports suggest that they deal with both the treatment of whistleblowers and the wrongdoing.

As the Commissioners have valuable knowledge and expertise in Civil Service personnel matters, they are well-placed to investigate whether a civil servant who has blown the whistle has been victimised. We suggest that it be made clear that the Commissioners deal with ‘appeals’ in respect of perceived reprisals rather than investigate the substantive malpractice. For instance, a civil servant who believed they had received an unreasonable response to their concerns about asbestos in government buildings should more sensibly be expected and encouraged to raise his concerns with the Health and Safety Executive. In another example, a civil servant who believed that their colleagues were defrauding the department should contact the National Audit Office if they felt their concerns were ignored. In both examples these civil servants would be taking their concerns to prescribed regulators and so could be protected by PIDA.

As to concerns about breaches of conventions, maladministration, and threats to impartiality we think these might sensibly be overseen the Parliamentary Commissioner for Administration. As such we suggest that consideration be given to whether the Parliamentary Ombudsman be made a prescribed regulator under PIDA in order to facilitate such disclosures. It may be that this will also require some clarification of his statutory powers to deal with such concerns raised by civil servants. Clarifying the role of the Commissioners in this way is likely to make the system more understandable and so increase the likelihood that concerned civil servants will raise concerns about malpractice or appeal if they believe they have been victimised for doing so.

Independent scrutiny and monitoring of this sort is likely to help protect the Civil Service’s core values of impartiality, neutrality and probity. This could be furthered if the Commissioners assumed a role monitoring the framework of Civil Service governance (including whistleblowing); reporting their findings on a regular basis and making recommendations. This could include examining the effectiveness of whistleblowing arrangements and what concerns are raised by civil servants.

How could a Civil Service Act help define the boundaries between Ministers, special advisers and permanent civil servants?
We are not aware of any issue regarding whistleblowing that turns on the existence of a Civil Service Act. Our main concern is that were there to be a Civil Service Act, it and any regulation made under it should be consistent with the disclosure regime of PIDA.

Summary of Recommendations

  1. The Civil Service should adopt a unified approach to whistleblowing that draws on the recommendations the Committee made in its earlier reports and reflects the disclosure regime of PIDA. This should remove any inconsistency between the codes and the Directory of Civil Service Guidance.
  2. The new provision should reflect the letter and spirit of PIDA.
  3. All departments and agencies should establish and promote whistleblowing policies.
  4. The role of the Civil Service Commissioners should focus on the alleged victimisation of a civil servant who has blown the whistle. As to concerns about malpractice which do not fall within the remit of any PIDA prescribed regulator, we recommend that the Parliamentary Commissioner for Administration be prescribed under PIDA for other concerns such as maladministration.
  5. Any Civil Service Act, or regulations under it, should be compatible with the disclosure regime of PIDA.

Should you require any further information to supplement or clarify this submission, please do not hesitate to contact the writer.

Yours faithfully,


Robin Van den Hende

  1. Hansard, House of Lords, 5 June 1998, column 614.
  2. British Bankers Association, Whistle While You Work, February 2002, pg. 3.
  3. 2000-2001 Fraud Report, HM Treasury, January 2002, pg. 47.
  4. 1998-1999 Fraud Report, HM Treasury, January 2000, pg. 4-1.
  5. 2000-2001 Fraud Report, HM Treasury, January 2002, pg. 27.
  6. Standards in Public Life; First Report of the Committee on Standards in Public Life, The Committee on Standards in Public Life, Volume 1: Report, London, HMSO, May 1995, pg. 18.
  7. Civil Service Code, paragraph 12.