The long-awaited Public Office (Accountability) “Hillsborough” Bill has been published. The Government’s intention for the bill is clear from the accompanying press release: ‘once and for all end the culture of cover-ups and hiding the truth, ensuring transparency, accountability, and support for bereaved families’. The closing of ranks and cover ups from people who should be protecting the public formed an all too depressing theme for many disasters including the Grenfell Tower fire, the Infected Blood Scandal and the Post Office/Horizon scandal. However, candour means always telling the truth – not just to coroners and inquiry chairs – and the Bill’s ambitious aims will not be realised if whistleblowers are too afraid to come forward, or if – when they do – their concerns are ignored.
New duties and criminal offences
We support the proposals for a new duty of candour on all public officials, better support for families of the bereaved during public inquiries and investigations, reform of the old common law offence of misconduct in public office and a new offence of misleading the public. For whistleblowers, the final investigation or inquiry usually happens long after they have tried to raise the alarm. However, the cover-ups that can follow – such as highlighted in the Infected Blood Inquiry or the Hillsborough disaster – exacerbate the harm done to whistleblowers, victims and their families.
Alongside the headline proposals, there is also a new requirement on public bodies to publish codes of ethical conduct, including information on how to blow the whistle. The way to enforce “ethical standards” that public officials must adhere to is through the staff and service users who identify when people fall short. In effect, every single hospital, school, police force, government department, local authority and further education provider needs to publish their whistleblowing policy. While there is currently a wealth of guidance and good practice, this is the first time that a law requires public bodies to publish whistleblowing arrangements. It is a huge step forward. Failure to publish a code of ethical conduct or to include whistleblowing in it would in itself be a breach of the law.
At Protect we know from callers to our advice line that even in the public sector, whistleblowing policies can be hard to find (e.g. “locked in the Headteacher’s office”, “I’ve never heard of one”) and too many public sector workers have no idea who to raise concerns to if their manager isn’t listening.
Good policies won’t just tell people how to raise concerns, but encourage them to do so, and set out very clear sanctions for those who victimize or ignore whistleblowers. Of course, a policy is not sufficient to deliver good cultures, but it is a necessary first step.
This could herald a new era of openness for whistleblowers in the public sector. Guidance will, no doubt, be forthcoming on what ethical codes should include. But for now, if you who would like a copy of our model policy to adapt in the public sector please email us adding “Public Sector Whistleblowing Policy” in the subject heading.
Whistleblowing improves enforcement
Whistleblowing is all about accountability. Whistleblowers can raise a wide range of concerns including a “breach of a legal obligation”. Failure by an individual or public body to adhere to the duty of candour for investigations and inquiries can now be raised by a whistleblower. Likewise anyone who has “departed significantly from what is to be expected in the proper exercise of [their] functions” and misled the public, can be the subject of a whistleblowing concern. Whistleblowers can help enforce many aspects of the new law.
They may also be able to raise as a concern that a public authority has not taken steps to maintain high standards of ethical conduct, in line with the Nolan Principles. Over the years, we’ve struggled to support those who raise ethical matters that don’t fall clearly within a breach of the law. From now on a whistleblower who says “this public authority is misusing or grossly wasting public funds” can argue that the authority has failed to maintain high standards of ethical conduct – breaching this new legal obligation.
But will it work?
This is only good news for whistleblowers and the public in general if we see a significant change in the culture of some public sector organisations. Whistleblowers won’t speak out if they are treated badly when they do – and over 60% of the callers to Protect’s advice line last year told us that they suffered some form of harm when they spoke up. This week we heard that trainee doctors won’t speak up about patient safety in maternity services, because of the toxic culture they’re working in. It cannot be right that every public official must speak up with candour, transparency and frankness to avoid a criminal sanction, but experience harm (bullying, ostracizing, performance management or dismissal) for doing so. In many organisations – including the public sector – speaking up can be a career-ending act.
What we will be campaigning to be included in the bill
Speaking truth to power is only one part of the equation: listening openly and honestly, and taking action is the way for public authorities to be more accountable. The cost of not listening to whistleblowers in the public sector means scandals will follow, with harm and heartbreak for individuals and an appalling waste of public money. Our recent research into the cost of whistleblowing failures identified a cost of £426m to the public purse from just three recent scandals. Surely the best outcome of the new law would be that greater openness means less need for inquiries and investigations, because risks are acted on early and whistleblowers inside organisations are listened to.
The Bill’s new duties need to be accompanied by greater protections for whistleblowers. Public authorities may now have to point to a whistleblowing policy, but they don’t yet have a requirement to take action or investigate concerns raised. Too many whistleblowers – around 40% of callers to our Advice Line – say that their employers simply ignore their concerns. A junior civil servant speaking up to a senior one may think that they’re adhering to their duty of candour, but there is no obligation for their employer to look into the wrongdoing. Worse, their career may stall if they continue to raise uncomfortable truths. The government has agreed that reform of whistleblowing law is overdue, but they’ve just rejected an amendment to the Employment Rights Bill that would require employers to carry out investigations when concerns are raised.
We want to see an element of personal accountability for how whistleblowers are treated. In the NHS there are to be sanctions on managers who ignore or harm whistleblowers – this will be serious misconduct that calls into question their fitness in their role. This personal accountability should apply across the public sector: all public officials who ignore or harm whistleblowers should be treated as automatically failing to uphold ethical standards. This should be treated as misconduct and senior officials should be removed from their public sector roles.