Category: Uncategorised

Is the revelation about Government splits over the role Huawei should play in the rollout of 5G technology within the secretive National Security Council (NSC), an act of reckless leaking, or brave whistleblowing?

For many inside and outside of Government, this was a dangerous and corrosive leak. This was the first time the press has been given information about the discussions within the NSC, a body of senior minister and security officials where they informally and openly discuss national security issues. Its discussions and decisions are kept secret, protected by the Official Secrets Act 1989 (OSA) which makes disclosure of certain sensitive information without authority a criminal offence, and the NSC bars members from having mobile phones, computers or any recording devices during meetings.  Jeremy White, Secretary of State for Culture and member of this committee, put the case against the leak, very well in Parliament:

“This (the leak) was unacceptable, and it is corrosive of the ability to deliver good government, which is something for which we must all take responsibility. In discussions of this kind, people are entitled to express whatever views they wish—and they do—but once the discussion has been held, collective responsibility requires that people do not repeat their views publicly, and they certainly should not discuss matters that have a security implication of this kind.”

What’s more there was more then a whiff that the motivation for the leak was less about the public interest and more about leadership ambitions in a Government who have struggled to keep cabinet discussions confidential.  The response from the Labour party, former Government Ministers and former security officials has been to call for an enquiry to discover who leaked the information, with some even saying the guilty party should be prosecuted.  Underlining this argument is the idea that this was a leak, revealing damaging information publicly, for political means and so lacked any public interest.

The case for this being an act of whistleblowing rests on the argument that the decision made over Huawei should be made in the open.  There is the argument about our future relationship with China and the impact on vital technology and there has been a lot of public concern expressed over this decision.  There is a public debate on the issue where the decision is being made behind closed doors. This is not revealing UK defence capabilities or confidential negotiations with a foreign country.  This is an attempt  to make a secret decision on something that needs public airing.

The Backbench MP Anne Main in Parliament best summarises the argument when she said:

“I am a little concerned that the leak may be trivialised by saying that it is as a result of someone’s leadership campaign. I am more concerned that it may be as a result of whistleblowing, because the process is so concerning to someone that they have felt the need to break the bond of trust that has existed for so long.

I accept that the review is going on at the moment in great secrecy, but since this has now been brought out into the open, can my right hon. and learned Friend assure the House that absolutely every consideration will be given to all the concerns that have been raised by hon. Members here today about both our relationship with countries such as Australia and our cyber-security and national security? Importantly, will he make sure that some concept of future deals with China is not colouring what we must now have absolutely at the forefront of our mind—the safety of the British public?”

I’ve so far laid out the arguments put forward for whether it was a leak or an act of whistleblowing which has been based on whether there was public interest in the disclosure.  Yet if there is a leak enquiry, if this uncovers the leaker and this led to a prosecution under the Official Secrets Act (OSA), the distinction between leaking or whistleblowing will not even enter the legal arguments before the jury.

This is due to the OSA lacking any kind of public interest defence, in fact it’s a strict liability offence meaning that the motives or reason are irrelevant to whether someone’s guilty, what’s relevant is whether the disclosure was authorised or not .  Here it doesn’t appear to have been authorised. However, if someone was so concerned about a decision they felt compelled to blow the whistle, knew they lacked authority to do this, then the public interest in the information being revealed is totally irrelevant.

A final thought on the situation, it would be surprising and a first if a Minister was uncovered as the source of the leak and then prosecuted under OSA.  This is not something that happens: all of the prosecutions under the OSA have been against government officials, not politicians.  Some cases may succeed, others result in an investigation with no conviction (Christopher Galley), in others, the case has collapsed (Katharine Gunn). As the media has noted Ministers have been disclosing details of confidential cabinet meetings for months to the press as Theresa May’s administration loses authority on a seeming daily basis.  Theresa May has issued warnings on this behaviour but has not investigated, yet this level of leak appears unprecedented. We’ll see if the noise and fury produces a prosecution, but I can’t help but feel that if an official was suspected of being responsible for the disclose they would almost certainly be prosecuted.

By Head of Policy, Andrew Pepper-Parsons

The Government has brought forward proposals to tackle NDA (non-disclosure agreements) in harassment and discrimination cases following the #MeToo movement. Our view is these proposals will make just a small dent in improving common practices in concluding settlement agreements. The proposals address only a small part of the wider problem of sexual harassment in the workplace.

The government’s main proposal on confidentiality obligations is to prohibit any agreement from stopping the worker taking information to the police. Protect has highlighted that this is not only unambitious but also puts the focus in the wrong place. The police would only get involved if the allegations met the threshold for criminal behaviour. The majority of these cases are not about criminal law but about rights in equality law, where the police have no role.

The difficulty presented by confidentiality in harassment cases is that they prevent workers from detecting a culture of harassment in the organisation. Victims are prevented or discouraged by draconian confidentiality clauses from raising concerns to an appropriate body.

To tackle this, Protect has recommended  the government prohibit agreements from stopping a worker making a disclosure about harassment or discrimination to the Equality and Human Rights Commission (EHRC). The EHRC is already tasked with ensuring compliance with laws on discrimination and harassment. Giving it this specific role as a receiver of information about discrimination and harassment would allow it to piece together individual reports and take action where necessary.. The important point is that workers should feel comfortable sharing their experiences with a body that is able to take some action against widespread breaches of the law.

It seems others share our view to take stronger, bolder actions against exploitative non-disclosure agreements. Last week, the Health Secretary Matt Hancock announced proposals to ban non-disclosure agreements in the NHS. While we welcome the government’s concern for non-disclosure agreements that may stifle whistleblowing, it must be recognised that this is only a small part of the picture. A successful whistleblowing scenario is one in which the worker can raise the concern and keep their job. The cost to the whistleblower of raising concerns should not be that they must leave their employer.

This highlights the need for government to look more closely at prevention, tackling workplace harassment and discrimination before it arises. We would urge the government to adopt the recommendation of the Women and Equalities Committee to introduce a requirement on employers to prevent and address sexual harassment at work. By the time a worker comes up against confidentiality clauses, much of the damage has already been done.

Government consultation: Confidentiality clauses: measures to prevent misuse in situations of workplace harassment or discrimination

Protect’s consultation response

By Protect adviser Dugald Johnson

Protect welcomes the Kark Review recommendations to give more teeth to the Fit and Proper Persons Test (FPPT) –  which is in place to ensure senior staff responsible for quality and safety of care are fit for their roles.

Led by Tom Kark QC, the review, commissioned by the government, looks at how effective the Fit and Proper Persons Requirement is in preventing unsuitable staff from being redeployed or re-employed in the NHS, clinical commissioning groups, and independent healthcare and adult social care sectors.

The Kark Review recommendations include:

• All directors should meet certain professional standards to sit on an NHS board
• A central database should be created that holds key information about qualifications and employment history
• References should be a mandatory requirement for director posts
• The FPPT should apply also to commissioners and arms-length bodies
• A power should be created to disbar directors for serious misconduct
• Further work should be done to assess the Test in social care contexts

Recent incidents in a number of NHS trusts have made it clear that ensuring effective management must be a priority. Directors, particularly when it comes to whistleblowing, must take the lead in instilling an open and supportive culture in which staff feel encouraged to speak up about concerns.

The fit and proper person regulation (FPPR) requirements came into force for all NHS trusts and foundation trusts in November 2014 following a number of scandals in the sector, to promote effective management. The Test requires NHS Trusts to assess newly appointed Directors against a number of criteria. A Trust must provide information to the Care Quality Commission (CQC) and declare that the individual meets the criteria. At present, individuals who do not pass the FPPT are listed on a register which places restrictions on their work.

The report discusses the relatively low rate of recorded whistleblowing in the NHS for a sector of its size and refers to a number of employment tribunal judgments which highlight a tendency in some NHS trusts to conceal concerns. The report remarks that the NHS’s understanding of ‘Speaking Up’ covers a broader range of disclosures than those which earn protection under whistleblowing legislation. Protect takes the view that workers and their managers need clear information and understanding of whistleblowing protection. For example, disclosures about bullying at work – though an important part of the speak-up landscape – do not necessarily qualify for legal protection against dismissal or detriment.

We share the concern expressed by Kark that some standard aspects of settlement agreements often obstruct transparency about a director’s past conduct. Confidentiality clauses and bare-bones agreed references can make it difficult for a prospective employer to make an informed assessment of a candidate because they prevent sharing of information between NHS bodies about previous misconduct, such as mishandling of whistleblowing.

In the context of those challenges, the report recommends that references be required to contain certain mandatory information. This is to be informed by a new central database of key information about all NHS directors, possibly housed within NHS Improvement. This would go some way in addressing the obstacles posed by settlement agreements.

In the context of Kark’s comments on whistleblowing in the NHS, it is encouraging that the NHS standard contract for 2019/20 includes an express commitment that nothing in any contract, such as a settlement agreement, will prevent a worker from raising concerns about quality or safety of care provided by their employer. This sits alongside provision that nothing will prevent disclosures protected by the Employment Rights Act 1996.

A key report recommendation is that certain behaviours amounting to “serious misconduct” should lead to temporary or permanent disbarment from a director post. These powers go beyond the current possible actions of the CQC if a director fails the test, which extend only to refusing the director’s appointment or working with a Trust to improve governance. This sort of enforcement power is crucial in order to make the FPPT a more meaningful endeavour when serious misconduct comes to light.

Protect welcomes the recommendation that suppression of whistleblowing or victimisation of a whistleblower by any director who falls under the regulation of the FPPT be considered “serious misconduct”. This is welcome recognition of the central importance of whistleblowers in ensuring high standards in the NHS.

Read the Kark Review in full

By Protect adviser Dugald Johnson