Oral evidence: Whistleblowing, HC 1117
Oral evidence, 24 March 2014.
Witnesses
Lin Homer, Permanent Secretary and Chief Executive, Her Majesty’s Revenue and Customs, Jonathan Slater, Director General, Transformation and Corporate Strategy, Ministry of Defence, Chris Wormald, Permanent Secretary, Department for Education, and Charlie Massey, Director General, Strategy and External Affairs, Department of Health, gave evidence.
Chair
I will hand straight over to Chris, because he has to go at half-past 4, and I think that we will be here for a little while. Before he goes, he wishes to raise a number of issues, so let us start there, and then we will come back to other Members with other issues afterwards.
Chris Heaton-Harris
Forgive me for jumping ahead—I have been whipped to go to a DL Committee at 4.30 pm. I am interested in this because I was a Member of the European Parliament for 10 years and got to deal with a number of whistleblowers there, from Marta Andreasen, who was the chief accountant of the European Commission, to someone at EUROSTAT who nearly brought down the Prodi Commission. I therefore got to know whistleblowers, how they were treated, and how different organisations would try to hide that treatment. We have just heard some testimony from Kay Sheldon that must be quite hard for the Department of Health, so I guess that I should start with Mr Massey. How much of that did you know?
Charlie Massey
I have not been acquainted with Kay’s case. I think that Kay showed enormous courage in coming here today and being so open. Her story is very humbling. I think we still have a huge amount to do across the NHS in getting ourselves into a position, as Cathy was taking about earlier, where staff feel confident that actions will be taken as a result of speaking up. There was a huge moment in the NHS just over a year ago with the Robert Francis public inquiry. A big part of the emphasis of the response, both from the Department of Health and the whole system, has been around culture change. While there is a lot that the Department of Health and others have done over that year, culture change is not achieved overnight. I am not coming here today to say that I think that 54%[1] of staff feeling confident in speaking up is something that we should be proud about—it absolutely is not. There is a huge amount more that we need to do, particularly to enable staff in front-line operations and providers to feel that the culture and leadership in those organisations is one where they do feel more confident about speaking up.
Chris Heaton-Harris
In the US Congress and the European institutions, a very good indicator of a department where something is not right is the number of people who have gone on long-term sick leave after having raised a grievance. Do you know the Department of Health’s figure for that?
Chair
And beyond, to all of its organisations.
Charlie Massey
I do not know that off the top of my head.
Chris Heaton-Harris
Would you be able to communicate that to us?
Charlie Massey
I am sure that I can find that information and write to you.
Chair
Hang on a minute. Can you find the information for all the organisations—NHS trusts, private providers and anyone who works from money provided through the Department of Health? Are you telling us that you have got that information, or are you just putting us off?
Charlie Massey
The honest answer to that question is that I don’t know what we’ve got, but I can commit to coming back to this Committee and sharing with you both what we do know and what we don’t know, in terms of staff sickness rates.
Chair
You should know, shouldn’t you?
Stephen Barclay
While the NHS is fragmented, each of the bodies have accounting officers in their own right, so one way round that would be to request the information from each accounting officer, or for the NAO to do so. There is a mechanism there.
Charlie Massey
I do know that we used to collect data on a national level, in terms of average sickness rates, but I think the Chair’s question was broader, to all those providing NHS services—
Chair
Funded by the taxpayer. It’s our money.
Chris Heaton-Harris
Mr Wormald, can I ask you the same question? Do you know how many?
Chris Wormald
Across the wider education system? No. That is not information we collect.
Chris Heaton-Harris
Anything in the centre at all?
Chris Wormald
Well, I am sure we could find the information for our own staff, but of course that is an absolutely tiny number of the education work force. We do not collect information at that level for individual schools.
Chris Heaton-Harris
Even though you—and we, I think—have had people from academies vocally blow the whistle, you do not collate any of that information or have a policy that you try to spread down? Actually, all academies must have a whistleblowing policy—that is one of the tick-box things—but is there nothing more to it than that?
Chris Wormald
We collect data about the whistleblowing that is done to the Department; I can give you that information. What we don’t do is collect data about whistleblowing that happens within an individual school anywhere in the system.
Chair
Why not?
Chris Wormald
It is not something the Department has traditionally done for any school, and in general we have been trying to reduce the amount of information that we collect from individual schools, rather than increase it. As far as I am aware, it is not something the Department has considered before.
Chair
Well, it may not have considered it before, but one of the interesting things with the academies is that it is clear that there is a lot of information. In fact, when Peter Lauener was here, he talked about the importance of whistleblowers in providing the first hint of things going wrong. You would think that if that is his view, as the head of the funding agency, it is madness for you, as the accounting officer with ultimate responsibility for all this stuff, not to collect the data and use them intelligently for giving you information about how things are going on the ground and in school. It may not have happened in the last 10 years, but surely it should be happening now, particularly given the fragmentation.
Chris Wormald
It is something that I will take away and think about. As I say, we are trying not to collect large amounts of information from schools.
Chris Heaton-Harris
That is probably the politest note that this Committee has ever had. However, one of the biggest themes of this Report is the tone from the top of an organisation. If the tone from the top is very nice words but “We’re not really going to bother”, it does not set that tone properly, does it?
Chris Wormald
No, that is not what I said or meant at all. The focus of the Department’s activity during the last two years has been to put in place and focus on its own whistleblowing arrangements. We have put a lot of effort—as you say, Peter Lauener has discussed this with you—into ensuring that we have proper and robust processes within the Department, and particularly within the Education Funding Agency, for the whistleblowing cases that come to us. To be honest with the Committee, that is what we have been focusing on. We have not been focusing on the question of wider whistleblowing that happens within individual institutions.
Stephen Barclay
But how do you know their polices are working if you don’t even keep metrics?
Chris Wormald
Well, as I have discussed with this Committee before, what we are seeking to create in the education system is autonomous institutions that are responsible for their own management. We do not seek to look over the shoulder of individual institutions at that sort of level.
Stephen Barclay
You wouldn’t take that approach to fraud, would you? There is a difference between autonomy and empowering people, and turning a blind eye. You wouldn’t say, “Well, there may be a risk of fraud in an organisation, but we will turn a blind eye because it is autonomous.” That is a nonsensical argument.
Chris Wormald
I am not saying that at all. We deal with academies—
Chair
With respect, Chris, you are. You just said it. A lot of this whistleblowing, particularly in the academies, could well be about fraud.
Chris Wormald
Our system is based around an autonomous institution that accounts for its own money, with accounts that are published and properly audited, and a system that allows people to raise concerns directly with us if they feel they have not been dealt with locally. As I say, we do not collect data on issues that are resolved at an individual school level.
Chair
In the end, you are the accounting officer—I get so tired of saying this—for the whole education budget. We have a fragmented system, and nobody is challenging that, but it is your responsibility as an accounting officer—
Chris Heaton-Harris
You said that they are autonomous, but if it is escalated up to the Department, you record it. What do you do with the bit that is escalated to the Department?
Chris Wormald
The issues are dealt with by the EFA. It has a standard process for doing so and has put a considerable amount of effort into making those processes robust. The chief executive of the EFA showed you last time he was here the card he issues to all his staff about how to deal with complaints when they are received. The EFA has considered at least 45 whistleblowing complaints since it was created. Every single one of them is looked at by EFA staff, who consider whether they raise issues of concern. If they do, we launch a formal investigation—that has happened in 21 cases—which is normally an investigation by forensic auditors of what happened in that institution. When the report is finalised, appropriate action is taken and we publish the results of the inquiry on the EFA website. We put a lot of time and effort into it, and we have robust processes around the whistleblowing done to the EFA to ensure that firm action is taken. I am not in agreement with some members of the Committee on what to do about tracking whistleblowing cases that are dealt with at an individual institution level. That is the difference I was pointing to.
Chair
Steve, do you want to come in with your comment, which I think is pertinent?
Stephen Barclay
The way you describe it, it seems to be exactly the model that our previous witness, who was a whistleblower, highlighted was not working.
Chris Wormald
Sorry, in what way? We take the whistleblowing cases that come to the Department—
Stephen Barclay
If the whistleblower reports it to the Department, the Department then goes to the institution. That, in essence, is what you are describing.
Chris Wormald
No. The EFA staff do an initial review of the case to see whether there is a case to be answered. If there is—the vast majority of cases are about financial irregularity—we put in properly trained investigative auditors to get to the bottom of what happened. Clearly, you cannot investigate those cases without going to the institution; it is where the records are kept, and you have to hear its side of the story. As has been borne out by the inquiry reports that we have published—the Committee has asked Peter Lauener and me about this before—it is not simply a case of asking the institution whether it agrees or not. It is a proper investigation of the audit trail, and has frequently resulted in regulatory action.
Chair
Can I ask two questions about DFE? First, have you any idea whether there are education chains that have more whistleblowing than others? Can you tell us that? We now have a number of education chains that are running a large number of schools. Are there more? Do you know the answer to that? Could you answer that question?
Chris Wormald
Within the individual chains, no, we do not—
Chair
Could you answer the question?
Chris Wormald
In terms of the whistleblowing complaints that come to the Department, I haven’t seen anything of the 57 cases.
Chair
Do you think you should be able to answer that question?
Chris Wormald
As it has been raised, I will go away and consider it. I cannot give you anything other than an honest answer at the moment.
Mr Bacon
It sounds like no.
Chris Wormald
I am sorry, but I am being completely open. We do not collect that information at school level. There isn’t another answer that I can give you.
Mr Bacon
I appreciate your earlier answer that the Department is trying to cut down on the amount of information that it seeks, which is perfectly understandable and, in many ways, completely just and right, but if one academy chain has had 87 whistleblowing cases internally within its own procedures, and a lot of them for very good reasons, and another academy chain has had two whistleblowing cases, of which one was completely unjustified and one had some merit, you wouldn’t know that, given what you have said. Surely it ought to be a source of concern to you as the accounting officer that you wouldn’t know; it is certainly a source of concern to the Committee that you wouldn’t know. That is precisely the sort of thing that ought to flag up to you whether the systems that you, as accounting officer, must attest are working properly are doing so. The answer that you have to give us is, “I don’t know.”
Chris Wormald
I can only tell you what information we collect.
Chris Heaton-Harris
In fact, it would be a success, if information was flowing.
Chris Wormald
Having looked at the Reports and considered our systems, one of the things that we want to look at—this was raised by the National Audit Office—is how that information flows around the system. However, I don’t want there to be a giant national reporting system for all of this that tries to cover 3,500 academies and 20,000 schools. I can see that there are issues with how we share information around the system, and we will go away and talk about that with the other people involved in the system. In preparation for this hearing, my second reflection on how whistleblowing is working in education was that the picture is quite complicated. One way or another, a lot of bodies are involved. There are local authorities, Ofsted, Ofqual, the Department itself and internal institutions. There is an issue for us on how we spread good practice and share information around the system, which is something that we are looking at.
Chair
I have one last question before going back to Chris. I have an academy in my constituency, and there are allegations that it is rigging its SATs results. What have I done about that? I have written to Ofsted about it. If the school is rigging its SATs results, which has yet to be established, it would make me wonder what else it is rigging and how else it is using public money. Given the way you currently run the various institutions under your command as accounting officer, I assume that there is no way that Ofsted would talk in that instance to the EFA to share that concern, if I am right. I preface my question by saying that the allegation has yet to be established.
Chris Wormald
I will come back to your specific question on SATs in a moment. Individual cases are discussed, particularly by the Department and Ofsted. We frequently have to decide whether an inspection is the right thing.
Chair
There is no way of communicating that, is there?
Chris Wormald
No.
Chair
At the moment there wouldn’t be.
Chris Wormald
As I say, what we don’t have at the moment—this is something we will go away and look at—is a regular exchange of views on whistleblowing, as such. What we do is discuss individual cases that we are looking at for exactly the reasons that you say. If an issue is raised on the leadership and management of a school in one regard, it may well go over into other things. SATs results are for the Department to look at because key stage 2 tests are administered by the Standards and Testing Agency, which investigates quite a lot of exam malpractice cases every year and publishes the results on its website. In a way, your comment reinforces one of the things I was thinking about in that area. What we do not provide at the moment—we will look to do much better on it in future—is a route map for people on how they raise issues on particular areas of education. There are a lot of separate bodies involved. That was my second takeaway, having looked at the Report and then at how whistleblowing was working.
Austin Mitchell
If you do not have any special provision or framework for encouraging, supporting and looking into the cases raised by whistleblowers, how do you get to know what is going on in schools and such a huge sprawling empire? How would you get to know about nepotism or allegations of corruption at Kings school in Bradford without a whistleblower? What happens if I blow a whistle on Kings school in Bradford?
Chris Wormald
If you came to the Department with that, it would be investigated, as was the case.
Austin Mitchell
It was not. It was passed to the police, and they decided not to investigate.
Chris Wormald
We have discussed that particular issue before.
Chair
We will come back to that, Austin. I will bring in Chris, because he has got to go in a few minutes.
Chris Heaton-Harris
I want to ask the last two witnesses the same question. Do you know the number of people on long-term sick leave following a grievance in each of the Departments?
Lin Homer
Chair, I know the numbers on people who have whistleblown in the past few years and the breakdown on the proportion of those cases where there is action and the proportion where there is not. There are about 60 to 70 cases each year, and about a third of those are actioned, while two thirds are not actioned. In relation to the case management system, I did not ask whether we know. I am only aware of one case that has followed on with the person leaving the organisation post-whistleblowing. I am conscious of another couple of cases where the issue was only raised as people retired. I am very happy to ask whether that information is kept. We keep detailed case management information, both on the progress of cases and the outcome.
Jonathan Slater
One of the weaknesses that the NAO was right to point out on the MOD’s whistleblowing policy was the absence of good quality MI. We simply have to hold up our hands on that. We launch our new policy next Monday, which is associated with a rigorous new system of collecting information. We have asked Public Concern at Work to work with us to design that, to ensure we get that right. I do not have that information in front of you now, but I would expect to have it in front of you in a year’s time.
Chair
I am going to go back to Lin on the case with one of the whistleblowers who we have worked most with in this Committee, who is Mr Mba. I will not ask about his settlement or any of that, but I want to ask about the process and how you handled him. Do you think it was appropriate to pass on his and his wife’s address, two mobile numbers, home number and office number to one of your staff?
Lin Homer
Since I have been in the Department, I have taken the view that we are not clear enough about the procedures we are following and what we are doing to support the whistleblower on one side and what we are doing on the other to investigate the query that has arisen and any other issues. Part of the reason for settling the case as we did was that I acknowledged that the individual was expressing genuinely held concerns and that, as a big employer, we did not follow procedures in supporting that individual as well as I would have liked us to have done.
Chair
So you think it was inappropriate, in effect.
Lin Homer
I am not happy to talk about the individual.
Chair
I am asking about process. I have been really careful to ask about process. This man blew the whistle to us, and one needs to go through it. I need to know that it will not happen again, Lin.
Lin Homer
You have my assurance. I have reviewed our procedures to ensure that we are clearer about the roles that individuals are playing internally and clearer about where the individual who has expressed a concern is obtaining support from. There is more we can do in that space, but I am confident that we have improved our practice, including adopting the new civil service procedure.
Chair
That is a bit waffley for me. I am going to go on. Was it appropriate to review his hard drive, his e-mail traffic, his internet usage and check his departmental telephone contacts, with further interrogation of computer material, look at the itemised billing checks to see what numbers he had rung up and undertake inquiries? Was that appropriate in this instance? In fact, the employment tribunal found that all the information you had given to us and others—the NAO and us—was covered by the whistleblowing legislation. That was the finding, wasn’t it? I have the judgment here: it was.
Lin Homer
There was not a judgment, because we settled. But we accepted that he was acting in good faith with a reasonable belief that his concerns deserved investigation.
Chair
I have to say, the judgment from the court says that it was, if I can find it, under the— Was it appropriate? It just seems to me that you hounded this man.
Stephen Barclay
I assume it was a term of the settlement that the Department accepted that he had disclosed in good faith, was it?
Lin Homer
No, I accepted that before we settled, as we prepared for the case. I will say again, if I did not say it clearly enough, that I do not think that all the processes we followed were good enough. I am not prepared to discuss every aspect. One of the issues which I think comes through in the Report, and which we have to be careful about, is that we sometimes owe more than one duty of care and there are times when an investigation has to be undertaken. But I do not believe that we were as careful in supporting this individual as we should have been.
Stephen Barclay
It is welcome that you have tightened up the procedure. That is good news. What is surprising is that the procedure was not followed in the case of someone disclosing to this Committee, when you would have thought that disclosure to Parliament in that regard was high profile, as we were looking repeatedly at whistleblowing and he had disclosed against that backdrop. It is even more surprising, because this is not a hospital at arm’s length that it is harder to have control over; this was probably as high profile a case as you could get.
Lin Homer
It is quite hard for me to stand in a position in history and know what was going on, but I am prepared to say, from the point I was responsible, I had discussions with you, Chair, about taking a personal responsibility as chief executive for the case, and I do believe that we needed to take extra steps to support the individual. We have put those in place. On reading the Report, I suspect, like my colleagues, there are still things I could do to improve our procedure. I am still concerned that when you access the information we have got available, which is now, I think, clearer, it is still, in the words of your previous witness, quite legalistic: you sort of enter a system that sounds like it is warning you rather than supporting you. My view is that there are probably still some things that I need to do going forward.
Chair
Let me ask you one other question about the process and how you dealt with him. The thing that shocked me most in the bundle of papers he let me see, some months ago, was that you made a request under the Regulation of Investigatory Powers Act 2000, which in effect is there to deal with terrorism. You used that Act to get information about a whole lot of stuff from other bodies. Again, I have details of that. What I want to hear from you is that you will never do that again where you have a whistleblower. It just shocked me to my bones, really, to see that these very extreme powers being used to try to hound this poor man—there is no other word for it: you hounded him—to the extent that you have broken him. The Department has broken him and it is awful. I feel personally responsible, because I think we exposed him to a lot of this in using the evidence that he provided to us. Then you go through this saga and see RIPA used—for terrorists—on a whistleblower. I just want to hear from you that you will never, ever do that again to a whisteblower.
Lin Homer
I share your concern. I think we have seen today, in the previous witnesses, the pressure that is placed on an individual if they are not only whistleblowing but having to do so in public. It is one of the wise pieces of advice from a number of sources, including the NAO, that we have a duty of care to try to protect individuals if they wish to raise a concern but not to do so publicly. I think the pressure of being in that public space was very difficult for the individual. I will assure you that we worked very hard to try to balance out that pressure and create an environment in which he felt able to continue.
Mr Jackson
You haven’t answered the question about RIPA.
Lin Homer
I am trying to answer several questions in the last—
Mr Jackson
Well, get to it. You are giving us a bit of flannel, if I may say so.
Lin Homer
No, I am not.
Mr Jackson
Yes, you are. You are not on “Money Box” now. Can you get to the point of RIPA? Why did you use that?
Lin Homer
I was addressing what for me is a very serious concern: the exposure of the individual. I have said, and will say again, that I do not believe every decision that was made about the powers that we used was made wisely in this case. I assure you they would be made more wisely. We have a full range of powers, and you know I cannot give you carte blanche assurances for ever more that I will not use—
Chair
On a whistleblower! Where you have got a bona fide whistleblower, I think it is totally and utterly awful that you choose to use these very extreme powers. I was trying to get an assurance from you on that point.
Mr Jackson
Can I also say this? I think it is rather high-handed for you to sit there and say, “This is what I’m not going to discuss.” Your letter says specifically, as I understand it, that there is not a confidentiality clause with regard to these individuals. No one is asking you to divulge any individual or corporate tax information. Given that this is public money, you should be willing to discuss the substantive issues, notwithstanding the court order that has been sealed to stay the proceedings.
Lin Homer
That is another issue, and I believe I owe a duty of care to my previous members of staff. I have indicated to you that I am very happy to discuss that with you in a private setting, but I think the individual is trying to move on, and I wished to respect that. In the same way, I have tried to say very clearly that I acknowledged a genuinely raised concern. I worked very hard to try to find a solution that would have kept that person within HMRC, but the decision was made by the person not to do that, and I am trying to respect their desire not to—
Chair
We will come back to the person and how he was treated when he tried to return to work. I want that RIPA question answered. I think you should say that where there are bona fide whistleblowers, it is inappropriate to try to find information about them by using the RIPA powers. It is inappropriate and just wrong.
Lin Homer
I think it was wrong of us not to have greater clarity about which of our powers we were using and when in this case. I am very clear about that, but I do not think I can give you carte blanche for the future, because I have other duties of care, including to Parliament and to individuals. There are requirements around the use of any of our powers. What I have done is put in place much greater scrutiny in any case where those powers are sought to be used that involves a member of staff in this way.
Q83Chair
Who would have had to authorise the use of RIPA in this case?
Lin Homer
I am clear that it should be right at the top of the organisation. It should be with me when powers like that would be used. I am sorry if it sounded high-handed, but you need to understand that many of our circumstances will involve a member of staff telling us information about another member of staff. These might include criminal activities. It will not always be easy for us, at the beginning of those disclosures, to know which member of staff is telling the truth. Sometimes we will use investigative powers.
Mr Jackson
That is disingenuous.
Lin Homer
It isn’t.
Mr Jackson
Yes, it is. You know full well it is. In the terms of the settlement, the order that was sealed concluding this action would have contained a full, unambiguous confidentiality agreement, and this doesn’t. This only invokes the civil service rules with respect to that individual. It is a different situation. It is not a confidentiality agreement covering tax matters, which I would understand and be more sympathetic to.
Lin Homer
No, there was no gagging clause.
Mr Jackson
That is my point.
Lin Homer
I have not invoked the Act relating to taxpayer confidentiality. I believe that I owe a duty of care to my ex-member of staff. I wrote, with his agreement, to you in September informing you about the settlement, and I would be happy to discuss the terms. They do affect his decision.
Chair
We do not want to discuss it—we are talking about the process.
Lin Homer
That was the question Mr Jackson was asking.
Mr Jackson
It was about the principle. There was a bit of a discordant tone when you said that you were not prepared to discuss it, yet your letter makes a different point: that you specifically have not got a confidentiality agreement in the order that concluded the proceedings. That was my point—it was about the principle. It is not our immediate business today to find out about the conditions of the order.
Lin Homer
No, and I deliberately chose not to have a gagging clause.
Chair
May I ask something finally, and then I will stop? I think the Committee has a sense of responsibility—
Lin Homer
I think we share a responsibility.
Chair
The issue is how you treated him. I will use an instance to make a general point, but it is an instance in which we have a particular interest. When he wanted to return to work in November 2011, he got a letter saying that he was not allowed to come back in and had to wait in the foyer of 100 Parliament Street to be collected at 9.50 am. It said, “Do not attend the office earlier than this time or go through the barriers without me being present.” He was not made welcome back to work. When it was then finally settled that he had to work again, I have seen an exchange of endless e-mails between you, Lin, and Anthony Inglese and others, trying to prevent him returning to his place of work. I will quote from one from 9 November 2012, which I assume came from your private office: “Lin saw the exchange of e-mails between you and Robert. Hm. She is also surprised that OM had been placed in litigation—as to why this is appropriate. May I ask whether OM could be placed in another area?” You tried to prevent him going back to his job. Inglese says, “My people are dismayed by his return to work.” That is a shocking way for senior management to treat an individual. He had the best of intentions—I do not think there is a bit of malice in this guy; I have never met him, but I have dealt with him through other means—and had the public interest completely at the heart of his actions. That is a shocking way to treat him—preventing him from coming back, so that he has no option but to do a settlement and go off. You have broken his life. Why on earth did you guys treat him like this?
Lin Homer
Chair, as I have said, I would be happy to have a fuller conversation with you. I think that we were trying throughout this period to find a way to minimise the risks to our individual and to the business. Some of the challenges we had at that point—
Chair
“My people are dismayed by his return to work.” That is the head of law, Inglese, in whose section he was working—“My people are dismayed by his return to work.”
Lin Homer
I would prefer to have a conversation concerning our efforts to bring him back to work with the individual in the room, if he was prepared to come, and in front of you.
Chair
He is not.
Lin Homer
Well, I am not sure that the offer has been made to him to have a private hearing with you. I think there were many lessons to be learned about the way we supported the individual, and I will say again that I do not think we supported him well enough.
Mr Jackson
On that, may I make a helpful suggestion? I think we have gone as far as we can on the RIPA issue. Of course, you cannot give an unequivocal undertaking, but are you in a position to say that you have protocols in place for the future treatment of whistleblowers? What legislation might be used to facilitate greater clarity from your point of view?
Lin Homer
Yes, I feel much more confident that there would be a deeper understanding that the organisation has to think about its duty of care to the individual, and its wider duties of care to Parliament and taxpayers. Where there are any decisions that cause conflict between those things, there is a need to escalate and get an opinion that takes both into account. An example of that would be if there are concerns about taxpayer confidentiality, but there is not absolute clarity about how to minimise those concerns. Those were some of the issues that I think were being struggled with, but without sufficient understanding of the need for people to stand above that decision and look across the piece. I am sorry; that is a bit elliptical, but I suspect that those of you who understand my system—
Chair
I have to say—I will move on now, because we have had enough on this—that the final irony of all this is that Dave Hartnett sought permission from the Exchequer Secretary to the Treasury to speak to journalists about the tax affairs of Goldman Sachs, which is what this is all about. You were pursuing him because confidentiality of tax is in the taxpayer’s interest, but at the same time he was in correspondence with the private office of the Exchequer Secretary to the Treasury seeking permission, which he went on to receive, to talk to journalists about a taxpayer’s confidential affairs. That is a shocking example of inconsistent treatment and of the difference between how Dave Hartnett and Mr Mba felt it was appropriate to give the Committee information about it. It is a shocking saga, and I feel really sad that we did not manage it better. Anyway, I have had my say. Can someone come in on something else?
Mr Bacon
I want to ask Mr Massey about what happens to people who seek to victimise those who make complaints and what the Department of Health now does about that. We heard from Kay Sheldon earlier, and I was thinking of a different case that I raised in our hearing on Wednesday 3 July 2013 on NAO Report HC 477, “Confidentiality clauses and special severance payments.” I raised the case at length then, so I will just provide a brief précis here. Essentially, a locum doctor raised concerns about an at-risk child who later died. The concerns were that, had the record keeping been better and had a named doctor been responsible, the case history would have been more thoroughly known and the child might have lived. The child was Baby P, and the action of the primary care trust was to offer the doctor £80,000 to go. When the doctor refused, saying that it wasn’t about money, the trust offered an increased sum of £120,000 with the threat that, if the sum wasn’t accepted, the doctor would be sacked. The doctor was also invited to sign a compromise agreement saying that there were no outstanding issues, which she refused to do. Four years of public money later, the doctor was exonerated and reinstated. What happened to the PCT managers who made that offer to her?
Charlie Massey
I do not know the details of that particular case, but I can—
Mr Bacon
It is a very famous case—it was Baby P. It was one of the most startling headline-making cases that there has been. One might have expected something to happen to the people who bullied a doctor who expressed entirely legitimate concerns in that way. One might expect there to be consequences for them for having treated a doctor in that way, but you are telling me that you do not know.
Charlie Massey
I don’t know the specifics of that case, but there are three things that I would like to say in relation to victimisation and bullying. First, there is need for candour across the NHS, which is fundamental. Candour is not only about individual clinicians telling patients where something has gone wrong; it is also about fellow professionals being candid where they see other things going wrong. That is why we have done two specific things on the back of the Robert Francis public inquiry. One is that we are introducing a statutory duty of candour for providers so that the CQC can essentially put providers out of business if they are found not to be candid. We are also introducing a professional duty of candour, on which I think the professional bodies will be consulting next month. That will make it clear that professionals can lose their licence to practise—the professional duty of candour will become part of their fitness to practise—if either they are not personally candid or they are not candid about something they see in other professionals.
Mr Bacon
Does that apply only to clinicians, or does it apply to NHS managers, too?
Charlie Massey
That focuses on the regulated bodies, which cover clinicians. In relation to managers, there is a fit and proper persons test that we are asking the CQC to put in place. The test will ensure that the CQC can essentially keep a register of people who are unfit and improper, which will provide another mechanism.
Mr Bacon
Do you mean so that the CQC can keep a register of managers who are unfit persons?
Charlie Massey
Exactly. I think that is one important element. Another element is the amendment that was made to the Public Interest Disclosure Act to make employers vicariously liable where co-workers bully an individual who has blown the whistle. That is important for setting a different culture. Essentially, it means that the employers are liable through an employment tribunal. The third piece you mentioned was around so-called gagging clauses. One thing the Secretary of State did last March was ban gagging clauses across the NHS, and indeed, going further, make sure that all compromise agreements signed henceforth should have in them an explicit clause that says that nothing within the agreement should stop the individual making a disclosure in the public interest. That is important. I recall about a year ago I had a conversation in this Committee about the fact that even if you ban gagging clauses, compromise agreements can still have a chilling effect.
Mr Bacon
Yes. Sir David used those very words.
Charlie Massey
Exactly. None of these issues is, in its own right, a panacea, because it comes back to culture change and leadership. The other element that is really important is the way in which the CQC goes about its job in terms of inspection. Cathy James spoke a little bit about that earlier this afternoon. The CQC is developing an inspection methodology that brings in the reflections of whistleblowers. Dr Kim Holt has been employed by the CQC to help develop that. That should ensure that complaints and concerns from the public, from patients and from staff are all taken into account in the inspection methodology.
Mr Bacon
In relation to the Baby P case, can you write to the Committee with information on what happened to the people who were victimising that doctor in that way, and offering public money for her to shut up? Can you write to us to tell us what happened to them?
Charlie Massey
I can write to give you the information.
Mr Bacon
I think it is appalling. In addition to candour, vicarious liability and gagging clauses, all of which are good points, another point—I think this is often underestimated in the public sector—is the importance of timeliness. That it should have taken four years in that particular case is extraordinary, and of course there was an extra public money dimension because it took so long. There is currently a case involving the chief executive of the South Devon Healthcare NHS Foundation Trust, Paula Vasco-Knight—I mentioned it earlier. She has been suspended after what the media have called a nepotism tribunal. The headline stating that she was suspended was from February 2014. One would hope that it would not take four years to find out the facts. Regardless of what the facts turn out to be, it really should not take four years to find them out, should it? It ought to be possible, in the interests of all parties, to come to a conclusion much more quickly. What are you doing about that?
Charlie Massey
I agree that timeliness is really important. I would make one general point and one specific point. The general point, for me, is that we also need to be clear about the timeliness before something becomes a whistleblowing case. In some ways, for somebody to blow the whistle and seek protection under PIDA is an indication of the system having failed. The open NHS that we want to create, and that Jeremy Hunt has spoken a great deal about in the past year, is one where all providers and organisations welcome concerns that are raised by staff, and see that as an engine of change for their institutions, rather than somebody being forced to blow the whistle. Clearly, when someone does that, it is important that those concerns are investigated properly and that the whistleblower feels they have been listened to properly. The degree of time that that will take will obviously differ from case to case. I cannot speak about the detail of the Paula Vasco-Knight case that you mentioned, but I know that that hearing is taking place within the next few weeks, after she was suspended on 10 February. I hope that that will reach an earlier point of clarity than the four years that you described.
Mr Bacon
You mentioned that you did not have the details of the Baby P case to hand. Can you name any case where those guilty of reprisals have faced disciplinary action?
Charlie Massey
I have not come here today prepared with a list of individual cases and the precise details on those.
Mr Bacon
That is a no, then, is it?
Charlie Massey
I have not come here today with a detailed set of cases.
Mr Bacon
Is that a no?
Charlie Massey
It is a no, yes. I don’t have that information in front of me.
Mr Bacon
Well, the word to use, then, is “no”. You cannot name any. That speaks volumes in itself, since that is what we are talking about. I would have thought that if the Department was taking this seriously—you talked about the fact that it is about culture change—you ought to be able to say, “There were several famous cases, and there might have been some less famous cases, in which people faced reprisals that they should not have faced because they brought to the attention of the organisation or to others malpractice that should have surfaced and been drawn attention to. As we thought it was right that it was brought to our attention and surfaced, and wrong that there were reprisals, we took action against those guilty of reprisals.” I would not necessarily have expected you to be able to name every single case, but the fact that you cannot name any at all is quite illuminating, to be perfectly honest, Mr Massey. It really is. Who will pursue discipline against the people named by Kay Sheldon?
Charlie Massey
Every case is different, in terms of where the appropriate action should take place. In relation to Kay—
Mr Bacon
I am not talking about every case; I am talking about Kay.
Charlie Massey
I am talking in relation to Kay. I have not come here to speak in detail about Kay’s case. What I do know is that David Behan and David Prior, the new leadership of the Care Quality Commission, very much welcomed Kay’s reappointment to the CQC board.
Mr Bacon
Are you sure that is right? Mr Behan, whom we have had in this Committee in the past—in his previous role, I should say; he was at DWP before, I think, a while ago—
Charlie Massey
David Behan was in the Department of Health.
Stephen Barclay
He was also part of the team that did the 12-month review of CQC.
Chair
But he was in the Department of Health.
Mr Bacon
In the past, he has been in front of this Committee as a witness, and I have regarded him as an impressive witness, but Kay Sheldon said that he was the person who called her in and told her she was going to be the subject of an independent review, and moreover that it was very clear that the Department of Health just wanted to get rid of her.
Charlie Massey
That is not true. What David Prior said when Kay was reappointed—
Chair
No, this is David Behan we are talking about.
Charlie Massey
Well, I am talking about David Prior, and I will come to David Behan—
Q104Chair
Just answer the question. David Behan was the one who, in the Department, initiated the review and called Kay Sheldon in to tell her that they were going to review whether or not she was a fit person to remain on the board.
Charlie Massey
As I said before, I have not come here equipped to deal with specific questions on any particular individual case.
Stephen Barclay
No, you are equipped to talk about your policy. How will your policy deal with an issue like the one identified today?
Charlie Massey
So, what—
Q106Chair
Can you answer that? Just answer it. Don’t give us waffle about the policy; just answer the actual specific.
Charlie Massey
Which specific would you like me to—
Stephen Barclay
We have had evidence today that says that there were reprisals taken against a whistleblower whose account has now been verified. As a matter of policy, who will investigate the people responsible for those reprisals who still work for the Department of Health?
Chair
Or for the CQC?
Charlie Massey
In terms of the policy, as far as I am aware—I may be wrong about this—Kay has agreed to continue on the CQC board and was not seeking further investigation, but I am prepared to—
Stephen Barclay
Whether she is or not is not the question. The question is about your policy. You have talked about the future, in which you say employers will be vicariously liable. That would not work, moving forward, in an instance like the CQC, because the victimisation—the witness gave evidence on this—was by the chairman and chief executive. They are the people responsible for the organisation. We have had evidence that shows that a whistleblower whose revelations were proved correct was victimised. You have a policy in place on which you have come to give evidence. How will that policy work in that live case?
Charlie Massey
In my view, the CQC leadership under David Behan and David Prior has unequivocally championed the case of the patient and the whistleblower.
Stephen Barclay
So they are going to investigate people in the Department of Health?
Charlie Massey
David Prior said when Kay was reappointed: “It has taken the courage and determination of men and women like Kay Sheldon…to shine a light into parts of the NHS which have hitherto been shrouded in secrecy.” David Behan has employed James Titcombe, whom we heard about earlier, as a national adviser.
Stephen Barclay
When will we see work on reprisals? What we are trying to establish, with great respect, is how the policy will work on those guilty of reprisals. That is the issue. In terms of changing culture, that is about having sanctions for those who are found to be guilty. It is very hard to find them guilty in real time, because they have a number of things to their advantage compared with the whistleblower, not least the deep pockets of the organisation, the legal advice that is available, and the ability to bring in independent reviewers, who, actually, are conflicted and not acting in a truly independent sense. It is difficult at the time, but where you find, after the time, that people have behaved wrongly, you do not seem to be able to articulate from your policy that any sanctions will be taken against those people.
Charlie Massey
Clearly, it will depend on the nature of the issue. If it is clear that there are reprisals that have been absolutely unacceptable, any department has the ability to take disciplinary procedures against any individuals found to have behaved in that way, and it should be absolutely prepared to do so. I am trying not to get drawn in. I do not know the details of this particular case, so it is difficult for me to sit here and say exactly what the appropriate processes should be, whether they are disciplinary processes or not.
Stephen Barclay
You do not know the details of this case or of the Baby P case. You don’t seem to know the details of the highest profile cases on which we are taking evidence.
Charlie Massey
The NAO Report talks about the Department’s own policies, and our ability to ensure that whistleblowing through the delivery chain is appropriately taken into account, that organisations have appropriate policies and practices, and that staff know how to raise concerns. Those are issues I have come here prepared to talk about. I do not think it is appropriate for me to talk about—
Stephen Barclay
Don’t you realise that the policy has not worked? We had the protection of whistleblowers in the NHS constitution; the protection of whistleblowers in PIDA; and the chief exec before Sir David gave evidence to this Committee in the previous Parliament. There have been about five or six different attempts at protecting whistleblowers through policy, none of which have worked. The reason they have not worked is because there have not been any sanctions against those responsible for the culture of bullying and victimisation. Until you have sanctions and discipline against often very senior people who are guilty of that victimisation, you will not change the culture.
Charlie Massey
Can I make a couple of comments on that? First, of course the Department of Health should use whatever policy means it can to ensure not only that there are appropriate policies, but that they are properly enforced and the sanctions flow. That is where the points I was talking to Mr Bacon about earlier in relation to candour and gagging orders are absolutely—
Stephen Barclay
Nigel Crisp sent his guidance note when he was chief exec. He was saying exactly the same stuff you’re saying today.
Charlie Massey
All the things I have talked about are things where the Department of Health has taken very specific action over the last period of months, rather than the last period of years. The fact that we are introducing a statutory duty of candour on providers will mean that the CQC will be able to remove members of the board, if those organisations are found to have not been candid with patients where harm has arisen. The professional duty of candour will ensure that for the first time clinicians will be able to have their licence to practise withdrawn through the fitness to practise policies of each of the individual professional regulators. Those are new things. The whole approach to transparency and inspection that was put into the system is also new. The way in which the CQC is building complaints and whistleblowing policies into its inspection methodology is something that has not happened before. However, all those things that the Department of Health and others are trying to do do not themselves add up to a lever that suddenly changes culture overnight. To change culture, we need a much more determined and sustained approach. I am trying to demonstrate that—
Chair
Let’s ask another specific. What would happen today if Serco was a contractor and a provider, and it rifled through people’s lockers to find out who were the whistleblowers? What would happen to Serco today that did not happen two years ago, when this actually occurred?
Charlie Massey
In relation to whistleblowing—
Chair
No. Take that situation, a real-life situation that we had here in the Committee. Again, whistleblowers were too frightened to come to talk to us today. Serco rifled through the whistleblower’s lockers to find out who was blowing the whistle about their manipulation of data.
Charlie Massey
As I understand it, what is applied to Serco now that was not at that time is the duty of candour—
Chair
What would happen to Serco today?
Charlie Massey
They could have their contract withdrawn. Their contractual duty of candour is built into that contract, or would be built into that contract if it happened today. They would therefore be contractually liable for that, as well as the whistleblower being covered by PIDA, which they would not have been two years ago.
Mr Bacon
When you say that it would be built into their contract if they had a contract today, what about the extant contracts? Is the duty of candour being added to existing contracts with the agreement of the contractors?
Charlie Massey
I forget the precise date, but during 2012-13 there was a duty of candour built into contracts.
Mr Bacon
I am talking about the old contracts that were extant before the duty of candour was introduced and are still extant today. I understand that the duty of candour would be included as one of the contractual clauses in a new contract, but I am talking about those for which that is not the case: those that were agreed before the introduction of the new duty. How is the duty to be incorporated into those earlier contracts?
Charlie Massey
As I understand it, all of the existing contracts will have been updated to take account of that contractual duty of candour. What I have been talking about in terms of the statutory duty of candour and professional duty of candour is in addition to that. That issue of candour is fundamentally important. Essentially, the health system is a very complex system, so it is about—
Mr Bacon
Just a moment. You said that you understand that they will have been updated. That is great if it is true. Has someone checked that that has actually happened?
Charlie Massey
I would need to come back to you to confirm that, but that is what I have been briefed.
Mr Bacon
My question is not whether you know the answer, but whether anyone has checked that it has happened? You sound like you do not know if someone has checked.
Charlie Massey
I do not know—
Mr Bacon
Will you write to the Committee about that?
Charlie Massey
I will, yes.
Austin Mitchell
I want to pursue one other point. We were talking about Kings school in Bradford and the fact that problems there were brought to your attention. In the highly decentralised system that we now have, with lots of schools and academies being independent, how will you, at the centre, while cutting the Department’s staff numbers in any case, know of problems unless you have a framework of supporting, encouraging, sustaining and investigating the cases brought by whistleblowers? Don’t you need that in a decentralised system? And have you got it?
Chris Wormald
Yes. That is what we do and that is a responsibility of the EFA. They have put in place, as I was describing earlier, an extensive procedure for dealing with the complaints and whistleblowing that they receive. Every single one is considered and where an investigation is needed, they launch one. That is, as we have discussed—
Austin Mitchell
They are not just passed on to the police.
Chris Wormald
No. Of the 45 cases of whistleblowing that the EFA has dealt with since its creation, there have been some where the investigation has thrown up matters that need to be passed to the police. I think there have been six—
Austin Mitchell
How many complaints have you had, and how many have led to an investigation?
Chris Wormald
Every single one is investigated. There are two stages to the investigation. There is an initial assessment by EFA staff of every single one of those 45, and then in 21 that led to a formal investigation, normally by forensic auditors. So just under half of the cases lead to a formal investigation, which leads to a published report. Then there is a much smaller subset—I think it is six cases—where there has also been a police referral, so it is a very small subset. Half of those police referrals were by the school themselves: they had identified an issue of concern about how one of their people was operating and referred it to the police. Of the other three, two were referred by the Education Funding Agency and one was referred by the Skills Funding Agency, because it was an FE college, so it is a very small number that lead to a police investigation.
Chair
Paul wants to come in.
Paul Oliffe
Chris, presumably you are talking about a small subset of the likely number of whistleblower cases, because you are talking about the ones that directly come to EFA.
Chris Wormald
Yes.
Paul Oliffe
So of the 3,000 of whatever the number is on academies, how many whistleblowing concerns would you expect to be raised? What do you think the total population is?
Chris Wormald
I am sorry, that is the information we were discussing earlier, which we do not collect.
Mr Bacon
If there were systemic problems, you wouldn’t know.
Chris Wormald
Whistleblowing is only one part of our—
Chair
It is a pretty important part. The one thing I have learned on this Committee, which I did not know before, is how important this is.
Chris Wormald
We agree with you, which is why the EFA has been making a considerable effort to deal well with the whistleblowing that it gets and to publicise that it is doing so. I discussed the issue with the chief executive of the EFA before this hearing, as I am sure you expected me to do, and he always says that the single most important thing it does to promote whistleblowing and to encourage people to come forward is publication of the reports that follow EFA investigations. Certainly he thinks that, as well as training his own staff in how to deal with this, the most important bit of the process is to demonstrate publicly that when concerns are raised with the EFA, they are investigated properly and then accounted for in public. I think he is completely right about that. Those are likely to be a small number of the cases that are dealt with at individual institution level, but it is likely to be the most serious ones and the ones where people feel that they have not got an appropriate response from the institutions directly.
Chair
May I ask all of you whether you have an idea of what is systemic? You don’t know because you don’t have the information, but Mr Massey might be able to. It might come under Lin’s, but it will be Jonathan as well. When do you consider it to be systemic? How many would there have to be for us to have a systemic problem?
Lin Homer
I think in our case we wouldn’t necessarily get a very large number. I don’t think we are as good at sharing the trend information with our audit and risk committee, but our investigative team does look. Sometimes we would not need many cases to be able to say that there is at least a systemic risk, even if there is not evidence that it is yet widely exploited, so we would always review a case to consider whether system changes should happen, even on the back of one case. If you can look in and see a system where one member of staff has had access to our systems to create benefit for themselves or someone they know, you really only need the one case to highlight to you that you need to put some secondary check in. That will happen in our cases.
Chair
And the rest of you. What is systemic for you, Mr Massey?
Charlie Massey
That is a good question. There are two parts to it. One is that last April, we established quality surveillance groups for local and regional level that brings together CQC, NHS England providers, local Healthwatch and patient advocacy groups. They meet and trigger risk summits if particular issues arise. Those risk summits raise a flag for issues that could be systemic. The other element is that, separate from the CQC inspection, CQC is now building up a sort of intelligence monitoring model, which will essentially look at a lot of the quantitative data as well as qualitative data, so we will require trusts to publish quarterly information on complaints—
Chair
That would give you a feel for systemic—
Charlie Massey
That intelligent monitoring should enable us to have a comparable basis of data, which should in turn enable us to be better at identifying systemic risks. I put that in a conditional tense because the intelligent monitoring tool is something the CQC has been building, and we will see over the next six months the degree to which it develops.
Chair
Mr Slater, what is systemic for you?
Jonathan Slater
As Lin said, one case can identify a system-wide problem. I suppose the particular thing I focus on, which has been helpful in defence, is that the fraud hotline that we have had in place the last couple of years has identified where fraud is happening more than in other areas. Of the 840 cases last year, more than half were in respect of theft, and that helps to inform the work of the Ministry of Defence police and the fraud team that we have invested in in support. In addition to changes in the control framework, which can be driven by an individual case, getting good-quality data from a fraud hotline—that is only a part of the position; we do not have good MI on the whole, as I said—can inform the work of our police force.
Chair
The reason I raise it was because when we did A4e the DWP Permanent Secretary was unable to define “systemic”. I must have had 50 or 60 letters about A4e. We are trying to get to whether the individual leads to a system-wide failure, or whether it is a particular contractor or particular group of academy chains, which is why we think you should have the information. It is probably a really important bit of work.
Mr Bacon
Mr Massey, as Mr Slater mentioned the subject of fraud, before we move on, I want to return to the news story today about Mr Jim Gee, the ex-director of the NHS counter-fraud service. He said that there is a figure of £5 billion to £7 billion of fraud in the NHS annually. The Department responded that it did not recognise the figures. Indeed, Mr Gee said that the NHS figures had to be extrapolated, because “the NHS in recent years has stopped measuring its own losses”, only looking at those for dental and pharmaceutical services. First of all, is that true?
Charlie Massey
I do not know. I do not the details of the full piece—
Mr Bacon
It was headline news today. As the director of external affairs for the Department of Health, I would have thought you might have known about it.
Charlie Massey
I do know that we are absolutely determined to tackle fraud. Where there is more fraud potentially is around NHS prescriptions. But we do not recognise the numbers that were mentioned—
Mr Bacon
What are your numbers then? If you do not recognise the numbers, what are your numbers?
Charlie Massey
I do not have those numbers to hand. I am sorry.
Mr Bacon
If you do not have the numbers to hand, how do you know that his numbers are wrong? You say that you do not recognise them—it is a phrase that people often use in Departments, and I hear press officers using it regularly. They can almost copy and paste it: “We do not recognise these numbers.” I am sure you have done it yourself—in fact, you did it just now. But it presupposes that you have some other numbers, does it not?
Charlie Massey
I am not responsible for fraud issues in the Department. We may well have—
Mr Bacon
You are the chief spokesman of this Department. We do not have an accounting officer here, we have you. You are the Director General—which is quite senior—for Strategy and External Relations. I hope I got that right, because I would not want to misname you. That sounds to me as though you are responsible for corporate communications, among other things. Is that right?
Charlie Massey
Yes, the communications directorate is part of my—
Mr Bacon
You are the top cheese in communications, so if anyone were going to know about this, I might have thought that you would, especially as it was on the news this morning.
Charlie Massey
I do know that we do not recognise the numbers that were put out. I do not have the precise numbers that we would generate with me this afternoon. I also know that we are determined to stamp out fraud, as is NHS England, and that we are determined to maximise our cost recovery.
Chair
“We have a policy.” I think what we are talking about here is practice, not policy.
Mr Bacon
It is encouraging that you are determined to stamp it out, I must say. My heart is lightened by the very thought of it. The issue is that this has been around for a long time. We have heard in the case of the Ministry of Justice, of course, about the contractors invoicing for people who were tagged who did not exist, who were no longer prisoners or who had died. Plainly, pharmaceuticals, the supply of pharmaceuticals and payments for drugs that have not been delivered are one possible issue, but the NHS procures a heck of a lot more than just pharmaceuticals. Are you saying that you do not look at it outside the drugs budget?
Charlie Massey
There are two slightly different things there. One is the question of fraud, the extent of fraud and what we are doing about it. As I said, I do not have in front of me our own numbers on the extent of fraud, but I do know that we do not recognise the numbers that were quoted this morning.
Mr Jackson
Yes, but you would have been aware, when you were approached prior to this story being in the media this morning, that it was coming, and one would have thought that you would have had a rebuttal that included alternative figures. Wouldn’t you think that?
Charlie Massey
Quite possibly. I perhaps took the NAO report and the context of this discussion too literally in terms of—
Mr Bacon
But the reason that this is relevant is that fraud is precisely the sort of thing that whistleblowers might come forward about. It is a very obvious example of something that people might say: “Did you know that Old Joe’s cousin has been invoicing the NHS in such and such a part of the country for services or goods that are not provided?” Then somebody blows the whistle on it. That is a very obvious example of where whistleblowing might occur, is it not?
Charlie Massey
It is, yes.
Chair
Let’s move on.
Mr Bacon
I want to ask about Mr Slater’s Department, because the report says that in the MOD more than half the employees who were surveyed—52%, in fact—who were concerned about serious wrongdoing within the past two years did not raise their concerns and only 40% thought that they would not suffer reprisals as a result of raising a concern. What are you doing about it?
Jonathan Slater
That is a very disappointing statistic, as you say. We hope that we can make a serious change in the perceptions of our staff by the launch of the new policy next Monday, which we have developed with the benefit of support from PCaW. It is just a policy, so—
Chair
Talk us through it, because the issue before us today is not the policy but the practice. What are you going to do to make what I am sure will read as a perfectly okay policy translate into a change in practice? I have another statistic here. Two thirds of your staff—57%, so not quite two thirds—did not know that anything existed around whistleblowing. What is going to change? What are the three, four, five levers of what you are going to implement that will make life different?
Jonathan Slater
Absolutely. The first crucial thing is to have a very clear policy, signed off by PCaW; it is only the beginning. The second thing is to make sure that people know about it—absolutely—and they need to know about it from the very top of the organisation. So, next Monday they will all be getting a letter from the Permanent Secretary and the Chief of Defence Personnel setting out the policy. The next thing we need to do is to make sure that we are implementing it and that we are telling everybody that we are implementing it, in the way that other members of the panel have referred to and in the way that Chris was describing the importance of explaining to people where whistleblowers have whistleblown and what we have done about it. We have agreed with PCaW that the right way to start is to produce a quarterly report based on data from the nominated officers who will specialise in dealing with whistleblowing complaints, to identify what action was taken, to identify whether there are systemic things that need to be put right and to publicise the application of the policy in practice. People will need to hear that it is being led from the top, which is why Jon Thompson and I will be taking part in the first training programme that we have designed with the support of PCaW. It is also why we are organising a whistleblowing awareness week that will need to be led from the top of the organisation, with a quarterly report on progress in—
Mr Bacon
Are you expecting to have to hire in extra temporary staff from the communications department to deal with the blip in whistleblowing or information that is going to come forward?
Jonathan Slater
No.
Mr Bacon
I am sorry. That was a slightly whimsical question. Just while I have you, Mr Slater, what happens to somebody in MOD who does not treat a whistleblower with due care? Are they sanctioned?
Jonathan Slater
If an allegation was made by a member of staff that they had been suffering reprisals as a result of whistleblowing, I would expect HR or the Permanent Secretary to appoint an investigating officer to identify whether disciplinary action should be taken in the normal way.
Mr Jackson
Just a quick last question. Do you think there is merit in the idea of having a professional standards governance regime in Government Departments such as health and education, as they do in constabularies and the Metropolitan Police, to oversee the issues around whistleblowing, ethical challenges and other behaviour? It seems to me, listening to the specific examples that we heard today, that it is a bit spatchcock and a bit ad hoc, notwithstanding the legislation, but that if you had a professional standards governance regime it would be clarified, and some of the points put to Mr Wormald would be addressed. You can start.
Chris Wormald
Yes, I thought you might say that. Well, we already have a role in overseeing, as part of the EFA’s regulatory functions, whether academies are well governed. We discussed with this Committee before that we act both as the financial regulator and the enforcer of the funding agreements with academies, and we also exercise powers over academies as charities, as an agent of the Charity Commission, so we already have quite a lot of responsibilities about the issue of governance. I have not considered the model that you propose. I think the question would be what it added to our existing sets of oversights of those institutions. Sorry, that is not a very clear answer, but I do not think it is the kind of question to give you a top-of-the head reaction.
Mr Jackson
But you will go away and think about it.
Chris Wormald
Well, as I say, I am not going to give you a top-of-the head reaction. I think the question—we look at our oversight of academies all the time, and we ask ourselves whether it is good enough and whether it is dealing with ever-expanding numbers of academies.
Mr Jackson
Praying in aid the Charity Commission is not actually a silver bullet with this Committee. That is completely useless, as a body generally.
Chris Wormald
I learned that on my last occasion, but just as a matter of fact, unfortunately, we do. We are designated as the agent of the Charity Commission in enforcing charity law, and that is an important part of our regulation of the academy sector. I am not going to comment—as I did not last time—on the Charity Commission, as you have dug into that issue yourselves. Our regulatory functions include that set of powers set out in charity law, as well as the arrangements we have in funding agreements. This will probably be an unpopular answer, but I will give it anyway: I am not always convinced in these cases that centralisation of these issues is the right way forward.
Chair
We are not talking about centralisation, Chris. We are talking about monitoring.
Chris Wormald
No, the question was about ethical oversight, in the same way as the police. We do think that individual institutions should take responsibility for themselves, as opposed to looking to another body. That is not to say that we do not have very important regulatory functions, around intervening when things go wrong, but the basis of our system at the moment is that institutions are free to run themselves, and we intervene when there is evidence that there is a failure to do so, as opposed to the system that you see in other parts of the public sector, where there is direct oversight of delivery. That is the model we have chosen, and we can debate—and have debated several times—the pros and cons of that model, but at the moment our activity is focused on that question, which we have discussed both today and previously, of how do you spot failure well and intervene, as opposed to a sort of ongoing oversight of everything. I think that is the distinction.
Chair
I have two final questions. One issue we have not talked about is incentives. Kay Sheldon talked a little bit about that, and I think it is an issue. Do any of you have a budget to support whistleblowers, if they need extra care—if they need legal advice?
Lin Homer
I do not keep a ring-fenced budget, but with a Department the size of ours we can make money available, and we have done all those things that you have said, including payment for independent advice. If I might cheekily just try and suggest an answer to Mr Bacon’s question about what you do to make sure policy is seen as effective, I think one of the issues there is to be very clear about the actions that follow, not just in relation to the whistleblower but substantively; so for me one of the questions is, if somebody has raised an issue, even if it is not wholly founded in vindicated concerns, none the less if there are improvements to be made, you make those, and you make it plain that they have come about as a result of the staff opinion.
Chair
You tell them.
Lin Homer
Yes. We have made some changes to how we deal with big cases. We are more transparent about the number. We continue to have staff sitting in for the decisions of the cases. We give you an annual report. One thing that encourages others is for people to see that whistleblowing has results—
Mr Bacon
Including perhaps somebody being promoted. It should not have to take someone as brave as Kay Sheldon, hanging on to the truth for grim death, for something to happen.
Lin Homer
I agree, but what will encourage people is to see that the organisation will do something differently as a result of concerns raised, even if they are sometimes painful.
Mr Bacon
Do you think that should occasionally include people being promoted? There are not exactly many examples at the moment.
Lin Homer
Only some will be as big as some of the ones that we have discussed today, but a series of small changes that people can see are as a result of their action is one thing that raises trust in the system.
Chair
Do any of you have budgets for supporting individuals?
Charlie Massey
We have the resource. We have focused our resource on signposting and raising awareness among staff across the NHS. The Department of Health funds a whistleblowing helpline, which published just last week a really good piece of guidance for raising concerns—
Chair
We would expect that. The question was about support to individuals.
Charlie Massey
On specific support, we do not have an earmarked budget, but we would be very clear that we or providers—wherever the whistleblowing takes place—should make funding available.
Chair
The Americans, taking incentives a bit further, have a regime that enables whistleblowers to be rewarded if there is a significant financial loss to Government. If you look at the US Securities and Exchange Commission, an individual in the Dodd-Frank case was awarded $14 million. Is anyone thinking about incentives of that nature?
Lin Homer
We do reward. Obviously, our system includes both internal and external whistleblowers. I think we disclosed some figures to you about the moneys that we pay for information that leads to criminals being stopped, but it is not in the order of the US example that you gave. Perhaps fortunately for my budget, the people who whistleblow to us are content with more modest amounts—
Mr Bacon
A book token.
Lin Homer
It is sometimes more than a book token, but we disclose the amounts in our accounts.
Chair
I am told that the Home Office is looking at financial incentives for fraud. Is that right?
Paul Oliffe
For fraud? Or are you thinking about asset recovery?
Mr Bacon
You do not mean financial incentives for fraud, do you?
Chair
No. Incentives to encourage whistleblowers to come forward. I just think it is an interesting issue, but I do not know whether it would work. Finally—we have not covered this yet, but it is in the Report—what is your view on having a stronger cross-Government capability? Chris will obviously be against it, but what do the rest of you think?
Chris Wormald
You go first, Lin.
Lin Homer
Well, I do not think I heard Chris being against that.
Chair
He hates anything to do with the centre.
Lin Homer
We have certainly benefited from the role that CSEP has played. It is useful and appropriate that we will get asked questions if we are not matching up to best practice. I do think that we are different and the questions you have put to us illustrate that. I do not believe that an absolutely rigid approach would make sense, but we should be asked to comply or explain—to use the private sector model—“Do you follow best practice? If not, why not?” It may sometimes be that your organisation is different or it might be that you are experimenting with what will become future best practice. It is useful, however, that the centre produces that guidance.
Chair
Good. Thank you. Oral evidence: Whistleblowing, HC 1117 13 [1] Note by witness: Should have said 71%