Draft Civil Service Bill


Introduction and summary
This response focuses on the whistleblowing provisions in the draft Civil Service Bill. Though these take up 2 of the 11 pages of the clauses in the draft Bill, they have to be read in conjunction with the Civil Service Code and so this response refers to that as well. We also touch on the issues of whether there should be a Civil Service Act and, if so, how it should provide for, and Parliament should oversee, the Civil Service Code. Drawing on the report of the Public Accounts Committee, we conclude by looking at the way the Civil Service handled the whistleblowing about fraudulent visa applications.

While we welcome the fact that the Bill does address whistleblowing in the Civil Service, these draft provisions do so in such an unhelpful way that they need to be rethought (as do those in the Civil Service Code, for the reasons set out on pages 7 and 8). Left as they are, the proposed arrangements will make it more likely that civil servants will turn a blind eye to wrongdoing. Where, however, a civil servant does feel something should be done, we think many will view an anonymous leak as more effective, less exhausting and less risky than using the scheme set out in this draft Bill.

The approach in the draft Bill reinforces the impression we have that whistleblowing is presently misunderstood and mistrusted by the Civil Service. The Bill:

  • focuses on the role of the Civil Service Commission in handling appeals and complaints on whistleblowing issues but is silent on how the Civil Service should establish and promote effective arrangements in the first place;
  • confuses public service and private interest as it caters only for a civil service whistleblower who has some direct interest in the wrongdoing;
  • proposes that concerns of substantive wrongdoing (e.g. fraud, waste and maladministration) be overseen by the Civil Service Commission when it lacks the powers, resources and expertise that other bodies have over such matters; and
  • is unclear what, if any, are the consequences for a civil servant if he does not use this proposed scheme.

As a result, the draft Bill confuses the already complicated arrangements in the Civil Service Code and sets out a prescriptive and unworkable scheme that risks harming trust in government. In our view, the preferred approach is the simple one recommended by the Public Accounts Committee and the Committee on Standards in Public Life. This is that the Civil Service should commit to and promote the principles in the Public Interest Disclosure Act (PIDA).

We do not see legislation as a proportionate or desirable answer to most problems: we consider that there is too much already and that much of what is now produced is so prescriptive it solicits unintended consequences. However, we consider there is a sound case for a Civil Service Act. That Act should make provision for the Civil Service Code and ensure that Parliament is afforded effective scrutiny of its content and so can ensure that it sets out clear whistleblowing arrangements.

Whistleblowing
Public Concern at Work’s interest in whistleblowing is as a means to promote organisational accountability, to deliver good management and to deter and detect wrongdoing in the workplace. The essence of this approach is that organisations should promote a simple and practical whistleblowing scheme where

staff should be able to by-pass the direct management line, because that may well be the area about which their concerns arise, and that they should be able to go outside the organisation if they feel the overall management is engaged in an improper course 1.

The objective of such arrangements is that they help give employees the confidence to raise concerns and managers an incentive to address them properly. Additionally, as a whistleblowing concern is not about the employee’s private position but about the interests of the organisation or those it serves, promoting such arrangements reminds employees and managers why they are there and to whom they are accountable.

This simple and practical approach is underpinned by the Public Interest Disclosure Act which applies to civil servants as it is. However, its principles and provisions are not generally understood or promoted by the Civil Service. In brief, it is not prescriptive legislation and its approach builds on common law principles. Though it forms part of employment law, it was commended in Parliament “for so skilfully achieving the essential but delicate balance between the public interest and the interests of employers.” 2

PIDA has a tiered disclosure regime which most readily protects and encourages internal disclosures, be they made to a manager, senior officer or through a whistleblowing scheme. Whether or not the employee has raised the matter internally, the second tier protects disclosures to prescribed regulators provided that the employee reasonably believes the concern and any allegation is substantially true. The third tier protects wider disclosures where there is a valid cause to go wider 3 and the particular disclosure is reasonable in all the circumstances. Additionally, PIDA protection is not available where the disclosure is made in bad faith.

The Committee on Standards in Public Life has explained the merits of this approach and the role of PIDA in its recent review, Getting the Balance Right. This concluded that:

‘Whistleblowing’ - or more accurately - a culture that encourages the challenge of inappropriate behaviour at all levels: We have sought to distinguish between the ‘media’ driven definition of whistleblowing and the role it can play internally in a healthy ethical organisational culture. Here, more than in any other area we have considered, the principle of Leadership is paramount if organisations are to truly ‘live out’ the procedures that all have in place. The statutory framework (the Public Interest Disclosure Act 1998) is a helpful driver but must be recognised as a ‘backstop’ which can provide redress when things go wrong not as a substitute for cultures that actively encourage challenge of inappropriate behaviour. We have recommended that leaders of public bodies should commit themselves to follow the elements of good practice developed by Public Concern at Work, the leading organisation in this field.

The Committee’s recommendations were that:

Leaders of public bodies should reiterate their commitment to the effective implementation of the Public Interest Disclosure Act 1998 and ensure its principles and provisions are widely known and applicable in their own organisation. They should commit their organisations to following the four key elements of good practice:
(i) Ensuring that staff are aware of and trust the whistleblowing avenues;
(ii) Provision of realistic advice about what the whistleblowing process means for openness, confidentiality and anonymity;
(iii) Continual review of how the procedures work in practice; and
(iv) Regular communication to staff about the avenues open to them. 4

Whistleblowing and the Civil Service
The principles behind PIDA are of particular importance in sectors where there is no or little competition as there the employer-employee relationship can become unduly self-serving. For this reason we believe the Government should accept the recommendations of the Committee on Standards in Public Life and apply them across the public sector.

Applied in the context of the Civil Service, such arrangements will build trust in government in that they will help give the public the confidence that concerns can be safely raised and properly addressed. The current whistleblowing arrangements in the Civil Service Code do not reflect the practical approach of the Public Interest Disclosure Act and are both complex and unclear. Insofar as whistleblowing issues are concerned, it seems the Code is enforced inconsistently. This is apparent from the recent report of the Public Accounts Committee into the serious failings in the immigration service, which were publicly disclosed by a civil servant after attempts to raise concerns internally failed to have the matter addressed.

The Public Accounts Committee concluded that

Disciplinary procedures are under way in respect of staff who challenged shortcomings in the administration of the ECAA scheme. We note that no action has been taken to discipline those who ignored or tolerated those deficiencies.

It then recommended that

Departments should establish proper procedures for reporting concerns to the appropriate internal authority, particularly where there is more than one Government department concerned. These procedures should be clarified and disseminated to staff. Departments should also ensure that all staff are aware of the correct channels for making disclosures under the Public Interest Disclosure Act. 5

We accept that this is one high profile incident and that one should take care that it does not distract from so much that is good and proper in the Civil Service. But the fact is that such a case can only damage the morale and commitment of those who work for the Civil Service and feed a popular perception that it puts its own interests before those of the public or ministers or that it readily tolerates serious wrongdoing. As the then Home Secretary - David Blunkett - told Parliament

“Some of us - including the minister of state and me - believe that if material is placed before senior management they should act on it. We are talking about allegations of fraud and forged documents. People who use false papers and have an immigration history that rules them out should be ruled out. It does not require a great deal of intelligence to recognise that, just common sense.” 6

The Civil and Diplomatic Services accepted these failings and told the Public Accounts Committee 7 that they are determined to ensure arrangements are in place to ensure that such wrongdoing is drawn to the attention of ministers and senior officials earlier than it was. In our view, this welcome resolve can only be helped if the Government accepts the recommendations of the Committee on Standards in Public Life and can only be thwarted by the scheme in the draft Bill.

While the immigration scandal was a case where concerns were raised by civil servants but ignored by managers, the consequences can also be serious when concerns are not raised in the first place. The Home Office has recently lost two key ministers because they had done (or not done) something that they had forgotten about but which, when subsequently reminded, they recognised as of questionable propriety. Where a doubt about the propriety of some action is such that a minister can resign over it, we would expect the culture in government to be one where a civil servant would have the confidence to flag or question the issue so that the minister could consider its propriety at the time and, in any event, would better recall the issue.

We imagine that ministers would also rather there were a culture where such questions were raised at the outset. Yet the prevailing culture seems to be such that this has not happened, even in private offices where it is reported there was sincere loyalty to the individual minister. When such incidents damage public trust in government, in politicians and the civil service, we question how this reticence on the part of civil servants can serve the public interest.

In the light of this, we are pleased to note that the whistleblowing culture we wish to see has much in common with the reforms the Civil Service now wishes to foster. This is clear from the emphasis placed in Civil Service Reform: Delivery and Values on aspects of leadership and skills (and which is repeated on the opening page of the consultation paper on this draft Bill):

The Civil Service therefore needs:

visible leaders who inspire trust, taking personal responsibility for delivering results effectively and swiftly; working in teams which are more than the sum of their parts and across traditional boundaries; focused on strategic outcomes, matching resources to business priorities, honest, courageous and realistic with staff and Ministers; constantly learning.

For all these reasons, we think it important that this legislation helps embed a culture where civil servants feel it is both safe and accepted to question suspect conduct and where managers take, rather than duck, personal responsibility. However, as we explain below the scheme in this draft Bill will thwart the development of such a culture.

Before turning to the scheme in the draft Bill, we address the issues whether or not there should be an Act and, if so, how it should make provision for the Civil Service Code.

Should there be a Civil Service Act?
On the issue of whistleblowing, the Civil Service Code is already a mess and the muddled thinking or drafting behind the prescriptive approach in this draft Bill will only compound its inadequacies. Left as it is, these provisions in the Bill will have “unintended consequences” and will “inhibit the Civil Service’s continuing evolution, development and reform” 8.

In some respects the draft Bill’s provisions on whistleblowing exemplify all that can go wrong with legislation and so may be invoked by those who oppose a Civil Service Act. They focus on process not outcome, their intention and effect is unclear and they are impractical. Added to this is the fact that the whistleblowing provisions take up one fifth of the body of the Bill when the Government states that it is bringing forward for consultation a Bill that “is confined to securing the non-partisan status of the permanent Civil Service” 9.

Public Concern at Work’s general approach to legislation has much in common with the view expressed by Lord Nolan in the context of a Civil Service Act:

I tend to feel more and more we have quite enough Acts, and possibly rather too many, and that we are dealing here with a subject of great sensitivity which it is extremely difficult to frame in legislation...I think the more time we have spent studying different kinds of bodies throughout this country, the more we have become convinced that good standards come from within the ethos of the organisation and independent scrutiny and that at any rate in this country with the strength of the voluntary system I would hope that we can do without the legislation which so many other countries have introduced.

For these reasons, the easy position for us would be to question the need or value of a Civil Service Act. But, on reflection, we support those calling for an Act. First, we believe it will be the most effective way to persuade the Civil Service to give whistleblowing the consideration the issue warrants and that ministers and the public are entitled to expect. Secondly, the problems in the Bill’s scheme can be readily remedied by adopting the simple provision put forward by the Public Administration Committee 10 or the simple steps we recommend. If the Public Interest Disclosure Act is referred to and promoted it will remind civil servants that there is some independent oversight and it will help instil an ethos where the Civil Service is geared to deter and detect wrongdoing rather than penalise those who bring it to light. Thirdly, there are concerns whether it is possible to legislate for the non-partisan status of the Civil Service without making it more unworkable, inflexible and immune to public expectations and the employment market. After several draft Bills and on an issue where the best minds available to the Civil Service will be involved, we are confident that it must be possible to bring forward a piece of practical, effective and balanced legislation. If it is not possible, it raises questions about the case for and merits of other legislation that is less carefully and less ably considered.

Providing for the Civil Service Code
As we have said, the Bill can readily provide for effective whistleblowing arrangements if both it and the Civil Service Code refer to the Public Interest Disclosure Act (PIDA). Because of the importance of the Code in expressing the culture, values and ethics that Government, Parliament and the public expect of the Civil Service, we consider the Code should be effectively scrutinised by Parliament and that it should be able to propose amendments to the content of any draft before it 11. We see little merit in the objections to such involvement when the present Code states in its opening paragraph that it is “modelled on a draft originally put forward by the House of Commons Treasury and Civil Service Select Committee”.

The whistleblowing scheme in the draft Bill
The Bill’s approach
The first striking point is that the Bill is silent on how the Civil Service might get the culture right so that concerns are properly raised and addressed in the first place. The Bill’s provisions deal only with when and how the Civil Service Commission should handle complaints and appeals about conduct. The consultation paper explains (in paragraph 31) the purpose as follows:

The Commission would also continue to hear appeals by civil servants under the Civil Service Code. Under the current regime, civil servants must first make an internal complaint using departmental procedures before appealing to the Civil Service Commissioners. The Government accepts that in certain circumstances this procedure could act as a deterrent to staff and the draft Bill provides for civil servants who reasonably believe that they will be subject to a detriment to take their complaint to the Civil Service Commission direct.

This fear of detriment could and should be simply and effectively dealt with by reference in the Bill and the Civil Service Code to the Public Interest Disclosure Act.

The provisions are in clauses 18, 19 and 20, which are headed ‘Appeals and complaints about conduct.’ They provide that the Civil Service Commission can only have a role where, by clause 18(2),

(a) the complaint consists of an allegation that a person other than the complainant has acted, or intends to act, in breach of a statutory code, and
(b) the complainant is directly interested in the breach.

A statutory code is defined as the Civil Service Code, the diplomatic code of ethics and the special advisers code and the complainant is defined as a civil servant 12. Therefore, the Bill’s scheme is concerned with cases where one civil servant considers someone has breached, or intends to breach, their obligations under the Code. To understand how this proposed scheme will operate, one needs to consider first what constitutes a breach of such a code and then consider how such breaches should be reported.

What is a breach of the Code
The Bill provides, in clause 5(8), that the Code must also require civil servants to carry out their duties

  1. efficiently;
  2. with integrity and honesty;
  3. with objectivity and impartiality;
  4. reasonably;
  5. without maladministration; and
  6. according to law.

These are minimum requirements. As the consultation paper states that the Government expects that future codes should continue much as they are 13, it is assumed that the more explicit obligations on civil servants will include

  • not to deceive or knowingly mislead ministers, Parliament or the public,
  • not to misuse their position for private advantage, and
  • endeavouring to ensure the proper, effective and efficient use of public money.

Reporting breaches
As the Bill sets out only when the Civil Service Commission can handle complaints and appeals, one must first look at how the Civil Service Code presently says a civil servant should report breaches. The Code distinguishes between four types of concerns (two of which should be reported and two of which may be reported) and outlines three procedures for raising these matters. These are set out in paragraph 11 as follows:

(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.

Paragraph 12 of the Code then sets out when a concern can be appealed to the Civil Service Commission. As stated above, the Government accepts that this provision can deter civil servants and so the Bill sets out when a civil servant can go direct to the Commission. Paragraph 12 presently provides

(12) Where a civil servant has reported a 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 Office of the Civil Service Commissioners, [contact details set out].

So the Code presently and unhelpfully distinguishes between four whistleblowing situations. The first is where the civil servant is required to act unlawfully or in breach of a code, in which case he should follow the departmental procedure. The second is where he has evidence of criminal or unlawful activity by others, in which case he should report the matter to the appropriate authorities. The third is where he has evidence of some other breach of the Code, in which case he may report the matter through relevant procedures. The fourth is where he has a fundamental issue of conscience, in which case he may report the matter through relevant procedures.

Additionally:

  • it is not readily apparent what the difference is between a relevant procedure and a departmental procedure;
  • it is unclear whether and how an appeal to the Commission arises where the civil servant is obliged to report evidence of criminal or unlawful activity to the authorities (as this is unlikely to be a relevant procedure); and
  • because compliance with the Code is a legal obligation, it is uncertain how a civil servant is expected to separate “unlawful activity” in the second situation from “other breaches of the Code” in the third.

Turning to the Bill’s provisions on approaching the Civil Service Commission, clause 19 deals with appeals to the Commission and clause 20 with complaints made directly to it. Clause 19 requires that the Commission must first be satisfied, having consulted the department, that

  1. the complaint is that someone has breached the code
  2. the civil servant has a direct interest in the breach
  3. the civil servant has exhausted his department’s internal complaints procedure, and
  4. it is reasonable that the civil servant is not content with the outcome of that procedure.

Clause 20 provides that a civil servant can put a matter directly to the Commission only where, having consulted the department, the Commission is first satisfied that

  1. the complaint is that someone has breached the code
  2. the civil servant has a direct interest in the breach
  3. the civil servant has not started to use his department’s internal complaints procedure, and
  4. he could not reasonably be expected to raise the matter through that procedure.

We do not see how this draft scheme sits well with the complex arrangements in the Civil Service Code, which the Government says it expects to operate on top of. The only whistleblowing situation that the Code expressly says should be reported under departmental procedures is the first, where the civil servant is required to act unlawfully or in breach of the Code. Drafted as it is, the Bill is unclear whether civil servants are now expected to exhaust departmental procedures in each of the four whistleblowing situations in the Code.

We explain below the misgivings we have about giving the Civil Service Commission oversight of all whistleblowing concerns, particularly those about substantive wrongdoing. Whatever oversight role the Act does give the Commission - and we accept it can helpfully and properly have one - we do not understand why it is necessary to be so prescriptive about the Commission’s role in overseeing these issues when the way they are handled in the first place is left entirely to the judgment and good sense of managers in the Civil Service.

The Bill’s test of a direct interest in the breach
Clause 18(2)(b) states that the Bill’s whistleblowing scheme only applies where the civil servant is ‘directly interested in the breach’. We do not know what this phrase means and our attempts to work out why it is there have failed to identify a plausible answer.

As the requirement of a direct interest must add something, we wonder whether the draftsman has failed to distinguish complaints from whistleblowing concerns (and on this point it is notable that while paragraph 12 of the Code helpfully uses the word ‘concern’, the Bill uses the word ‘complaint’). Whatever the reason, this requirement risks conflicting with the new statutory dispute resolution scheme in Employment Act 2002. This provides that an employee has to choose whether he wishes to raise a concern as a grievance or as a whistleblowing issue 14 and it defines a grievance as “a complaint by an employee about action which his employer has taken or is contemplating taking in relation to him” 15. This, for example, would include where a civil servant is required to do something unlawful or in breach of the Code. As the Civil Service Commission has made it clear it will not deal with grievance or personnel issues 16 and nothing else about the Bill suggests that it is intended to alter this, we do not think this is the explanation for the requirement of a direct interest.

An alternative explanation of this requirement is that the intention is to exclude from this scheme concerns about substantive wrongdoing - which would be something we would welcome. However, if that were the intention we feel sure the provision would have been more clearly expressed. In any event, the fact is that there will be cases of substantive wrongdoing where the civil servant who raises the matter may have a direct interest in the breach and so this scheme may be unwittingly triggered. This could be where the whistleblower is competing against an alleged fraudster for the same vacancy, where the unlawful activity adversely impacts on his workload or where his professional judgment and pride are offended by substantive wrongdoing.

This raises another important and unanswered question - is the scheme in the Bill intended to be optional or mandatory? If mandatory, and it can apply where the concern is about fraud, then this could put the whistleblower in an invidious position because of the conflict between the Code (which obliges him to report such evidence to the appropriate authorities) and the scheme in the Bill which would require him to exhaust the departmental complaints procedure before going to the Commission 17.

It is also unclear how such a scheme would inter-relate with the Public Interest Disclosure Act. In determining whether a public disclosure is reasonable, section 43G(3)(f) requires a tribunal to consider whether the organisation’s whistleblowing arrangements were and should have been used. If the scheme in this draft Bill is not intended for substantive concerns, we think the Government should clarify what arrangements will be in place for such matters.

The role of the Civil Service Commission
Whether the Bill’s scheme is mandatory or optional, we question whether it is sensible that it should present the Commission as the body to oversee the full range of misconduct that may occur in the Civil Service.

First, the Commission lacks the powers to address any substantive wrongdoing. The Bill provides that where the Commission is empowered to consider a complaint or appeal, it must investigate the matter and consult the department before deciding whether it is justified. If it finds it is justified, the Commission can make a recommendation to any person 18. Taking a concern about fraud, it is difficult to see what the Commission is expected to do about the substantive wrongdoing, other than recommend that the evidence is passed to the relevant authorities. If that is so, we see no merit in directing a civil servant to go to the Commission. Indeed, as the Bill expects departmental procedures to be exhausted first, we see this approach as positively harmful as it will provide an opportunity for evidence to be contaminated or, worse, destroyed 19.

Secondly, this whistleblowing scheme to the Commission expects departmental procedures to be exhausted first and so will have little impact on getting managers to take personal responsibility in the first place. Although not directly in point, the evidence of frauds in Whitehall show the benefits of a simple, accessible whistleblowing channel. Between 1999 and 2004, the Treasury (prompted by the Public Interest Disclosure Act) encouraged departments to establish well-advertised avenues for staff to report their suspicions of fraud. This five year period saw a 31% increase in reports, with over 1250 civil servants reporting concerns about frauds which had escaped normal controls and had already cost the public over £3 million. Quite apart from these savings, promoting the whistleblowing routes will also have had a significant deterrent effect on fraud.

Thirdly, the Commission has recognised the limits of its ability to deal with concerns of substantive wrongdoing. Referring to one of only six conduct appeals 20 under the Code it heard in a decade, it stated

“It raised complex issues and required careful examinations. Some aspects were of a technical nature which went beyond our responsibilities under the Civil Service Code but we found that there were others which clearly fell within the Code and which raised serious issues” 21.

This lack of Commission power to investigate substantive misconduct - be it fraud, a dangerous building or concealing information contrary to the Freedom of Information Act - is not changed by the scheme in this Bill. Those powers (and the consequent resources) rest with other authorities and these are referred to generally in the Civil Service Code and are identified specifically under the Public Interest Disclosure Act as appropriate recipients 22 of such concerns. We have no doubt that the correct approach would be for the Civil Service to take advantage of the PIDA in the way that the Committee of Standards in Public Life and the Public Accounts Committee recommend and for this Bill so to provide.

If this is done, the approach in PIDA will encourage civil servants to raise breaches of the code internally and make it more likely that managers will address the substantive matter properly and without undue delay, in the knowledge that there is some effective independent oversight. While we see a role for the Civil Service Commission in overseeing concerns that a civil servant has been instructed to breach the Code (as the Public Administration Committee proposed in its draft Bill 23), we consider that bodies such as the National Audit Office, the Information Commissioner and the Health and Safety Executive are better placed to oversee concerns in their fields. Although it may necessitate legislative change as to its remit, we consider that the Parliamentary Ombudsman should be prescribed under PIDA to deal with concerns about maladministration.

Applying the Code in practice
Based on the evidence given to the Public Accounts Committee by the most senior civil servants about the immigration visa scandal, we return to this case to consider how the Civil Service Code 24 is applied and impacts on culture. It is clear there was evidence of fraud, forged documents and false papers and that the concerted attempts made to raise this through the system all failed.

The permanent secretaries at the Home Office and the Foreign Office believe the issue should have been drawn to their and ministers’ attention earlier and are determined to ensure such lapses do not happen again 25. Yet well over a year before they were told, Sir John Ramsden, a senior FCO official had described it in November 2002 as “an organised scam that completely undermines our entry controls” 26 and Home Office minister, Robert Ainsworth, had advised Beverley Hughes’ office about the problem in Feb 2003 27. In neither case did officials alert their seniors. Neither the fact that the number of applications increased from 890 to 6,659, nor that there was “clearly a serious difference” 28 between the two departments, was sufficient to flag the issue at the top level.

The permanent secretary at the Foreign Office was first notified on 19 March 2004 29, hours after an official reported that a colleague said he had emailed the Shadow Home Secretary about the failure to deal with the scam. The Director-General of the Immigration Service said 30 that Home Office ministers were not aware of the issue until it became public on 29 March 2004 when the Shadow Home Secretary released the whistleblower’s email.

Looking at how the Civil Service Code applies to civil servants, the first point is that any official aware of this evidence of fraud was obliged to report it to the appropriate authorities. Secondly, if a manager had instructed a civil servant to process the forged papers, the junior official was obliged to report it under the departmental procedure. Thirdly, officials were obliged to report the failure of senior managers to deal with the issue to the appropriate authorities.

Yet, despite the fact that these obligations under the Code were clearly and repeatedly breached, no action has been taken to discipline those who failed to report or tolerated the scam. The only disciplinary action taken has been against the whistleblower for making a report, albeit one at the end of the day to the Shadow Home Secretary. 31

This inconsistent approach to upholding the Code is revealing both about the culture of the Civil Service and its approaches to wrongdoing and whistleblowing. The Permanent Secretary confirmed the whistleblower’s facts were largely correct 32 about the fraudulent scam, that he wished that he and top officials had been alerted to the problem much earlier but that attempts to do so had been lost in middle management. In his evidence the Permanent Secretary also makes the important point that

“the sheer volume and weight of paper that is circulated means that we do not have the chance to read all the papers that are copied to us... That is just a fact of our lives these days.” 33

While the culture was one where officials did not think it justified to flag the scam up at the highest level, within hours of it emerging that an official had contacted the Shadow Home Secretary, the Permanent Secretary was notified of the fact, with the result that this was how he was first informed of the scam. If this order of priorities reflected the fact that the Civil Service is under a duty to assist the Government, it is unclear why it did nothing for ten days to act on the scam or to ensure that Home Office ministers were briefed about what had happened. If the reason for the delay was that they were waiting to see what the Shadow Home Secretary would do, we think that was a political call which should have been taken by ministers rather than officials 34.

Conclusion
We consider that this Bill should ensure that the Civil Service implements a whistleblowing scheme that builds on the provisions of the Public Interest Disclosure Act and sets out a clear regime that gives civil servants the confidence to raise concerns about misconduct and managers an incentive to address them responsibly. Unlike the muddled approach in the Civil Service Code, which the draft Bill further confuses, such a scheme will:

  • enable serious concerns to be flagged at the appropriate level;
  • ensure that managers in the Civil Service are more ready to accept and demonstrate personal responsibility; and
  • build public trust in government.

We think Government, the Civil Service, Parliament and the public would be better served if advantage were taken of this simple and practical approach to whistleblowing.

Footnotes

  1. Committee on Standards in Public Life Getting the Balance Right: Implementing Standards of Conduct in Public Life (2005) cm 6407 par 4.31
  2. Hansard (1999) HL vol 590, col 614, per Lord Nolan
  3. This can be, through PIDA ss 43G and H, either (a) reasonable fear of detriment if the concern were raised internally or with a prescribed regulator, (b) reasonable fear of a cover-up and there is no prescribed regulator; (c) the concern has been raised internally or with a prescribed regulator (but has not been addressed reasonably), or (d) the concern is exceptionally serious.
  4. Note 1, page 92. Sections 4.31 - 4.43 review how this approach to whistleblowing has been working in public bodies and the make recommendation on what now needs to be done.
  5. Public Accounts Committee FCO - Visa entry to the UK, (1 March 2005) HC 312
  6. Hansard HC 30 March 2004 col 1433
  7. Note 5, Supra, Evidence, Q 66
  8. A draft Civil Service Bill (2004) Cm 6373, paras 14 and 19
  9. ibid para 19
  10. see note 22 below
  11. As the Public Administration Committee has recommended, HC (2003-4) 128-1 page 9
  12. Clauses 18(3) and (4) respectively
  13. Page 15, para 45
  14. Employment Act 2002, schedule 2 para 15 - 15 (1) The procedures set out in Part 2 are only applicable to matters raised by an employee with his employer as a grievance. (2) Accordingly, those procedures are only applicable to the kind of disclosure dealt with in Part 4A of the Employment Rights Act 1996 (protected disclosures of information) if information is disclosed by an employee to his employer in circumstances where - (a) the information relates to a matter which the employee could raise as a grievance with his employer, and (b) it is the intention of the employee that the disclosure should constitute the raising of the matter with his employer as a grievance.
  15. Regulation 1 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 No 752
  16. Annual Report of Civil Service Commissioners 2003/4, page 22
  17. 17. See clause 19(1). While clause 20 provides the exceptional circumstances in which a civil servant can go straight to the Commission, we do not think a civil servant could safely assume they would apply to a concern about fraud. This is because before it can accept any direct approach, the Commission must be satisfied under clause 20(2) that the civil servant “could not reasonably have been expected to” initiate a complaint through the departmental procedure.
  18. Clauses 19(6) and 20 (6)
  19. As happened over a decade ago when MoD official Gordon Foxley got wind of the fact that the authorities were on to the £3 million of bribes he had taken for awarding contracts.
  20. Westminster Explained - Ethics and Accountability speech by Baroness Prashar 20 March 2003
  21. See Annual Report of Civil Service Commissioners 1999-2000, page 20
  22. These include bodies such as the National Audit Office, the Information Commissioner and the Health and Safety Executive
  23. The Public Administration Committee’s Draft Civil Service Bill provided in clause 6(4) that “The [Civil Service] Code shall provide a mechanism for an appeal by any civil servant who believes that he is being required to act in a way that is unlawful, improper, unethical or otherwise in breach of the Code, and shall also provide for an application direct to the Commission in any case where the civil servant reasonably believes he will be subjected to a detriment if he makes an appeal”.
  24. We assume the Diplomatic Code of Ethics has the same provisions. If this is wrong, the case study is still relevant as the officials at the Home Office would have been guided and bound by the Civil Service Code.
  25. Note 5 supra. Evidence Q 66, Sir Michael Jay (PUSS FCO)
  26. Ibid. Q 148 & 149, Robin Barnett (Director, UK visas)
  27. Ibid, Q 41 Sir Michel Jay
  28. Ibid, Q 54, Sir Michael Jay
  29. Ibid, Q 14 &15, Bill Jeffrey (DG IND) and Sir Michael Jay
  30. Ibid, Q 39 Bill Jeffrey
  31. Whether the disclosure was protected under PIDA as being reasonable in all the circumstances is to be determined.
  32. Note 5 supra. Q 154
  33. Ibid at Q 52
  34. If this was the case then their decision to immediately suspend the whistleblower was ill-judged as it could only have alerted the Shadow Home Secretary to the seriousness of the underlying issue.