By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 19 February 2019
Summary: Under the Civil Service Code, civil servants are required to observe values of integrity, honesty, objectivity and impartiality. They are required to whistleblow if they see evidence that the Code has been breached. Examination of published data by the Civil Service Commission, which is the final arbiter on complaints under the Code, reveals a picture of escalating complaints by civil servants in recent years but no proportionate increase in investigations by the Commission.
A total of 143 Code complaints have been examined by the Commission since April 2014, eleven (7.7%) of which were investigated and four (2.7%) of which resulted in findings of Code breaches. The most complained about Department was the DWP. The Commission has examined 30 complaints by civil servants about the DWP since 2014.
The Commission’s investigative procedure is variable. It appears reluctant to make findings of whistleblower reprisal. Even in a most egregious case of whistleblowing about suspected criminality in contract handling at the MoD, the Commission only criticised the poor whistleblowing governance but refrained from a finding of reprisal. It appears that whistleblowers in the civil service may get a promise of ‘better governance jam tomorrow’ but limited recognition of personal injustice, which can have a chilling effect on culture.
The Commission should in fact be more proactive and recognise that failures to protect and withholding of support are often a form of whistleblower victimisation.
The overall picture is of a clunky, slow, paternalistic and only partially effective and responsive mechanism for whistleblowing at the heart of the government. The public deserves better and a vital starting point is to reform UK whistleblowing law, to compel better minimum standards of practice.
Whistleblowing and the Civil Service Code
The Public Accounts Committee looked at whistleblowing in 2014 and advised that government departments should significantly improve their approach to whistleblowing. The Committee held one follow up hearing, in 2015, at which it was evident that the Cabinet Office had not done a good job in leading change, and had held only a single implementation meeting.
Here I examine the published data on whistleblowing by civil servants to the Civil Service Commission since 2014.
Civil servants can appeal to the Commission if their Departments have not properly handled whistleblowing about breaches of the Civil Service Code.
The Code was introduced in 1996, and has been revised since. It requires that civil servants observe the following values:
It also requires that they should report breaches of the Code.
The Civil Service handbook, the Directory of civil service guidance,
gives this advice about whistleblowing on Code breaches or other matters covered by the Public Interest Disclosure Act:
| “What should I do if I become aware of wrongdoing?
6. The Civil Service Code advises that you should report any actions that are inconsistent with its provisions (paragraph 11). First, you should raise the issue with your line manager. If for any reason, you would find that difficult you should report the matter to the nominated appeals officer within your department.
7. If you are unhappy with the response you receive, you may report the matters to the Civil Service Commissioners (paragraph 12 of the Civil Service Code).
Exceptionally, the Civil Service Commissioners will consider accepting a complaint direct.
8. These procedures should also be used if you wish to make any other disclosure covered by the 1998 Act.”
The Civil Service Nominated Officer model has parallels with the NHS Freedom To Speak Up Guardians, who may have been fashioned in their likeness by the mandarins behind the 2014 Freedom To Speak Up Review.
Interestingly, the Directory of civil service guidance hesitates to give assurance that Civil Service whistleblowers will be protected:
| “Will I be protected if I blow the whistle before going through the internal procedures?
9. Only you can make this judgement, and in doing so you will need to consider the preceding paragraphs carefully. It is preferable and this is at the heart of the Public Interest Disclosure Act to raise the matter internally if appropriate and practical. It is after all in the interests of the organisation and its workforce that issues and concerns are aired in this way. If you are in any doubt, you should speak to your departmental nominated officer (paragraph 6). Your conversation will be treated in absolute confidence.”
This is a House of Commons report about the Code and its history:
This briefing notes that in 1995, the UK government rejected advice from the Committee for Standards in Public life to set transparency standards for the Civil Service Commission:
“It rejected however recommendations from Nolan for the Civil Service Commissioner to give detailed information about appeals made before them; leaving the nature and extent of reporting up to the Commissioners to decide.”
The Commission’s published decision notices only summarise cases.
Code Complaints to the Civil Service Commission since 2014
I could find no thematic review of Code complaints on the Civil Service Commission’s website, so I looked at their raw published data on complaints instead.
Since April 2014, the Civil Service Commission has completed examining 213 complaints about alleged breaches of the Civil Service Code.
Data published by the Commission has been collated into a spreadsheet which can be found here.
The most complained about Departments were as follows:
|DEPARTMENT||NUMBER OF ALL COMPLETED CODE COMPLAINTS SINCE 1 APRIL 2014 (INCLUDING BY NON CIVIL SERVANTS)|
|Home Office||17 (one about Home Office – UK Visas and Immigration)|
|MoJ||13 (3 about NOMS)|
|Department for Business Energy and Industrial Strategy||7|
|Food Standards Agency||5|
|Department of Health||5 (three about Public Health England)|
However, 69 of the 213 complaints were not made by a civil servant or even about the civil service eg. “No civil servants involved”. One complaint from a former civil servant was not accepted. Putting those cases aside, the Commission examined a total of 143 complaints from current civil servants.
Civil servants complained most about the following nine Departments, which accounted for about two thirds of all completed Code complaints by civil servants:
|DEPARTMENT||NUMBER OF COMPLETED CODE COMPLAINTS BY CIVIL SERVANTS SINCE APRIL 2014|
|DH including Public Health England||5|
|Food Standards Agency||4|
|Department for Business Energy and Industrial Strategy||3|
There has been an increase in Code complaints since 2014:
|FINANCIAL YEAR||NUMBER OF COMPLETED CODE COMPLAINTS BY CIVIL SERVANTS|
|2018-19 Year to date||34|
The Civil Service Commission has attributed the increase in Code complaints to a programme of awareness raising. There is a small improvement in Civil Service People Survey scores about awareness, which is set out later in this article.
Code complaints about the Department of Work and Pensions (DWP), the most complained about Department, rose over time:
|YEAR||NUMBER OF COMPLETED CODE COMPLAINTS BY CIVIL SERVANTS ABOUT THE DWP|
|2018-19 year to date||7|
This is a spreadsheet of Code complaints by civil servants about the DWP from April 2014 to the present time: DWP Civil Service Code complaints
Although the DWP is a controversial department and has attracted the most Code complaints in recent years, its current overall compliance rating by the Civil Service Commission is “Fair” and “Improving”.
Despite the rise in the number of Code complaints, the number of complaints investigated has not increased proportionately:
|YEAR||NUMBER OF COMPLETED CODE COMPLAINTS RESULTING IN AN INVESTIGATION|
|2014-15||2 (MoD, HM Treasury)|
|2015-16||4 (Welsh Gov, DWP, Met Office, Home Office)|
|2016-17||3 (Food Standards Agency, Public Health England, DWP)|
|2017-18||2 (MoJ, Home Office)|
Eleven (7.7%) of the 143 complaints by civil servants were investigated and Code breaches were found in four of the cases. This gives a 2.7% (4 of 143) chance of Code complaints by civil servants succeeding.
The reasons given by the Commission for not investigating complaints included:
“OUTSIDE REMIT – HR Management matters”
“Cannot accept case as currently at Employment Tribunal”
“Case currently being investigated elsewhere”
“Cases satisfactorily resolved by Department”
“Matter resolved by Department”
“OUTSIDE REMIT – Commission does not accept anonymous complaints”
“OUTSIDE REMIT – Complaint not yet heard by Department”
“Unable to pursue case as complainant left Civil Service and did not provide contact details”
“OUTSIDE REMIT – Security Services not covered by scope of Commission”
Forty three cases were rejected altogether on the basis that they were about HR management issues which in the Commission’s view did not comprise Code issues.
At least 78 of the 143 complaints by Civil Servants were referred back to their originating Departments.
The number of cases apparently ‘wrongly’ submitted to the Commission or sent back to Departments raises questions about whether Departmental whistleblowing arrangements are adequate, in terms of responses to staff concerns, and effective communication with staff about procedures. There is also a question of whether some staff escalate quickly to the Commission because of a lack of confidence in their Department to handle their cases fairly.
The Commission has discretion to investigate cases without waiting for Departments to investigate first. It is not clear exactly how often it exercises this discretion, but it seems likely from all the information available that this is rarely done.
In the cases which were accepted for investigation, obfuscation and delay by Departments meant that some cases took an excessively long time to come before the Commission. For example, a serious case of possible criminality in handling of contracts in the MoD began with disclosures in 2008 but was not investigated by the Commission until 2014. An earlier appeal to the Commission in 2012 did not result in investigation. The case was sent back to the MoD, and subsequently dragged on for another two years before the Commission investigated.
The Commission gives the following account of its activities in handling Code complaints in its annual reports:
|YEAR||ANNUAL REPORT COMMENTS ABOUT CODE COMPLAINTS|
|“During 2014-15, the Commission received 20 new cases (19 in 2013-14). It also completed its investigation into one further case received in February 2014. Most of these 20 cases (16, or 80%) were outwith the Commission’s remit. In some of these, they were out of remit because they dealt with HR issues: HR issues are explicitly excluded from the Code. In others, they were out of remit because they were made by individuals who were not civil servants. Our legal powers only allow us to investigate cases brought by civil servants; there are other bodies – for example the Parliamentary and Health Service Ombudsman – who are able to look at complaints of maladministration brought by members of the public. This is a similar proportion of ‘out of scope’ cases compared with previous years (71% in 2013-14).”
“Of the four remaining cases, two remain under investigation at the end of the reporting period; in a third case we are still assessing whether the complaint is within our remit. The fourth case was investigated during 2014-15, details below. The outstanding case from 2013-14 related to the way certain contracts had been procured by the MOD, and whether the process had breached either EU procurement regulations or internal MOD guidance on procurement. The Commission upheld the complaint and concluded that the Code had been contravened in a number of ways: in the initial failure to follow internal procurement policies correctly; in the Department’s failure to consider the complaint in the context of the Code; in the Department’s treatment of the complainant; and in the inadequacy of the Department’s guidance on how to handle Code or whistle-blowing complaints. The Commission made recommendations to the Ministry of Defence including updating and correcting their whistle-blowing and Code complaints procedures, taking steps actively to promote the Civil Service Code and reporting back to the Commission in a year’s time on the progress it has made in embedding a culture that has at its heart the Civil Service values.
The second case adjudicated on during 2014-15 concerned advice provided to Treasury Ministers on the implementation of a new policy being proposed in the 2011 Budget. The complainant argued that a senior official in the Department had breached the Code requirements to act with honesty and objectivity by not presenting a particular policy as a viable option. The Commission did not uphold the complaint as, having considered the evidence, the panel considered that the issue amounted to a difference of views between officials and that the senior official’s view was consistent with the majority view in the Department. They were therefore justified in presenting the advice to Ministers in the way they did.”
|“During 2015-16, the Commission received 21 new cases (20 in 2014-15), in addition to the three that were still underway at the time of the last annual report. Of these 21 cases nine, or 43%, were outwith the Commission’s remit. This is a smaller proportion of ‘out of scope’ cases compared with previous years (80% in 2014-15). Three of these nine were outside our remit because they dealt with Human Resource issues: HR issues are explicitly excluded from the Code because there are alternative avenues for such decision appeals. The remaining six were outside our remit because they were made by individuals who were not civil servants. Our legal powers only allow us to investigate cases brought by civil servants; there are other bodies – for example the Parliamentary and Health Services Ombudsman – who are able to look at complaints of maladministration brought by members of the public. A further eight cases were referred back to the relevant Department, usually because the concerns had not yet been properly investigated under the Code by the Department concerned – a condition of the Commission accepting a case for investigation. We concluded investigations into four cases this year, including three that were originally received in 2014-15 but which remained under investigation at the time of our last annual report. The outcome of all of these investigations is published on our website and summarised below.”
“During 2016-17, the Commission received 47 new cases (21 in 2015-16), in addition to the three that were still underway at the time of the last annual report. This large increase on the previous year was mainly due to standardising how we record and report incoming cases Of these 47 cases, fourteen were outwith the Commission’s remit (9 in 2015-16). Three of these fourteen were outside our remit because they dealt with Human Resource issues: HR issues are explicitly excluded from the Code because there are alternative avenues for such decision appeals. The remaining eleven cases were outside our remit because they were made by individuals who were not civil servants. Our legal powers only allow us to investigate cases brought by civil servants; there are other bodies – for example the Parliamentary and Health Services Ombudsman – who are able to look at complaints of maladministration brought by members of the public. A further twenty-seven cases were referred back to the relevant Department (8 in 2015-16), usually because the concerns had not yet been properly investigated under the Code by the Department concerned – a condition of the Commission accepting a case for investigation. One case concerned serious allegations of fraud against the Department concerned and was passed to the Cabinet Office fraud investigation team. One case that was being considered at the time of the last annual report was referred to the National Audit Office, as a body more suited to consider the matter. Five new cases were accepted for investigation on appeal. Two of those new cases have now concluded. In total we concluded investigations into four cases this year, including two that were originally received in 2015-16 but which remained under investigation at the time of the last annual report.”
|“During 2017-18, the Commission accepted three new cases for investigation on appeal. Investigation into one of those new cases has been suspended while the complainant is at Employment Tribunal. In another case, the Commission had to halt its investigation when it was discovered that the case had been investigated by the Department concerned, and the complainant’s concerns upheld. The other case remains under investigation at the end of the reporting period. There were two cases accepted on appeal in 2016-17 still being investigated at the start of this reporting year, which have now concluded. In one case no breach of the Code was found. In the other resolution was achieved via mediation with the complainant and Department concerned without a full Commission investigation being necessary.”|
|2018-19 YTD||No report yet|
The annual Civil Service People Survey shows the following pattern of staff awareness of and confidence in whistleblowing procedures. The latest survey received 302,170 responses from civil servants, which represents a response rate of 66.4%. The figures show slight improvement in recent years. But it is not guaranteed that such slight changes in staff perception will ensure that the most serious whistleblowing cases will be handled properly. Indeed, less than half of civil servants who contributed to the survey felt that it was safe to challenge the way things are done in their organisation:
|YEAR||Question B46. “I think it is safe to challenge the way things are done in [my organisation]”
Percentage of staff who agreed
|Question D02. “Are you aware of how to raise a concern under the Civil Service Code?”
Percentage of staff who agreed
|Question D03. “Are you confident that if you raise a concern under the Civil Service Code in [your organisation] it would be investigated properly?”
Percentage of staff who agreed
Eleven Code complaints investigated by the Civil Service Commission since 2014
The links to the eleven cases that were investigated by the Civil Service Commission and brief case summaries are set out in the appendix.
The Commission’s approach to investigation is variable and in some cases consisted primarily of reviewing papers. In other cases, parties are interviewed.
The Commission found code breaches in four cases, relating to the MOD, Met Office, Food Standards Agency and Public Health England. Whilst the Commission found no Code breach in a fifth case regarding the DWP, it noted that a Code breach had been found in the same case during a previous Commission investigation.
The upheld MoD case of non-compliance with proper tendering of contracts stands out in its gravity and the severity of the Commission’s criticism. The MoD and the NHS National Guardian’s Office have of course, been cosying up as part of the National Guardian’s ‘Pan Sector Network’.
In addition to the delays in the system response to Code complaints, the Commission also seems hesitant to make findings of whistleblower reprisal, even in the MoD case that it criticised so severely. The Commission found Code breaches in terms of failure by Departments to respond properly to concerns about reprisal, but it side stepped whether reprisal actually took place in these cases. The Commission should in fact be more proactive and recognise that failures to protect and withholding of support are often a form of victimisation.
The overall impression is of a clunky, slow, paternalistic and only partially effective and responsive mechanism for whistleblowing at the heart of the government. The public deserves better and a vital starting point is to reform UK whistleblowing law.
APPENDIX: THE 11 CIVIL SERVICE CODE COMPLAINTS THAT WERE INVESTIGATED BY THE CIVIL SERVICE COMMISSION:
“The complainant argues that a senior official in HM Treasury breached the Civil Service Code requirements to act with honesty and objectivity by not presenting implementation of the employment allowance in 2012-13 as a viable option to Ministers.”
“The complainant alleged that MoD commercial staff had routinely let contracts without competition, in contravention of procurement law and internal guidance, and that significant amounts of money could be wasted as a result. There was a subsidiary allegation that staff who challenged this were treated less favourably as a result.”
The Civil Service Commission indicated that it neither had the resources, nor did it consider It necessary, to launch a full scale investigation. The Commission noted:
– The complainant had been obstructed by MoD managers in his attempts to raise concerns
– Specialist police investigation by MoD CID concluded that the complainant had raised his concerns reasonably, and that there was “flagrant disregard for competition which could possibly indicate criminality”.
– MoD policy was incompatible with the Code, because prevented MoD staff from making public interest disclosures unless it concerned their area of work
– “…a lack of appetite within the Department to either consider the concern against the framework of the Code or to take account of the evidence that their own internal investigation had uncovered” and a lack of objectivity in the Department’s handling of the concern – which was an additional Code breach.
– The complainant reported being moved around every time he raised concerns, and that the MoD failed to establish whether this represented reprisal. However, the Commission held that it was “unable” to reach a view on whether the complainant was or was not penalised for whistleblowing.
– “there is clear evidence of a culture which discourages dissent and does not take allegations of breaches the code seriously”
The Commission concluded that overall, the MoD’s behaviour in this matter was so poor that it went to “the heart of whether from the top to the bottom of the organisation there is an unwavering commitment to the values of integrity and honesty which are fundamental to the Civil Service.”
“The complainant says that DMs [decision makers] were asked to follow a reassessment process contrary to DWP policy and guidance, and to sign false statements when making decisions on these cases.”
“The initial investigation by DWP fell short of best practice. Originally the complainant was told that he would not be informed of the outcome, as it would be confidential. Finally he was given a three line statement that said that as it was an established and agreed process at the time and in any event was no longer being done that way, there would be no action. There was no reference to the Civil Service Code or the possibility of referring complaints to the Civil Service Commission.”
A further investigation took place by the DWP after intervention by the Civil Service Commission, and upheld a breach of the code and the fact that the DWP worker had been asked to sign a false statement.
The worker remained dissatisfied and referred the matter back to the Commission, who concluded: “DWP has demonstrated that it has apologised and has tried to provide an explanation. In this DWP has acted in an appropriate manner, though the Commission recognises that the complainant remains dissatisfied. The Commission does not believe that it is reasonable to expect personal apologies from three managers who were following the instructions they had been given”
“The complainant argues that senior officials in Border Force breached the Civil Service Code requirements to act with honesty and objectivity by making statements that were untrue and not supported by the facts.” Not upheld.
“The complainant (referred to as Mr X in the remainder of this document) believed that CAFCASS Cymru should have disclosed to the Family Court the fact that it had concerns about a report he prepared for legal proceedings concerning children.” Not upheld.
“The complaint was submitted by a member of staff working at a DWP office and concerned allegations of bullying and harassment, manipulation of office performance statistics and breaches of data protection by a named individual, all of which, he argued, amounted to breaches of the Civil Service Code.”
The Commission accepted the complaint about manipulation of data but did not uphold it: “the Department’s investigation of the complainant’s concerns was proper and thorough and the Commission was satisfied that all possible steps had been taken to address the concerns raised.”
“The complainant made an allegation of financial irregularities in relation to an item shown on the organisational finance reports and an attempt by her line manager to cover this up.”
“This is an unusual case as the Met Office’s internal audit team has already concluded there has been a breach of the Civil Service Code. However, the Department’s investigation took place after the complainant had been dismissed from her post. She argues that her raising these concerns contributed to the decision to dismiss her.”
The Commission noted that the Met Office’s internal audit team did not substantiate fraud but concluded that “…comments made by the complainant’s manager were contrary to the standards and behaviours required by the Civil Service Code, a qualified finance manager and a Met Office employee.”
The Commission found that the Met Office breached the Code in an initial failure to investigate the Code complaint and failure to protect the complainant from reprisal.
The Commission declined to find on whether the complainant suffered reprisal through dismissal because her Employment Tribunal claim was not pursued (failure to pay fees): “In the absence of an authoritative judgment by the Employment Tribunal, the Panel noted that it saw no evidence to suggest that raising her concern was the primary reason for the complainant’s dismissal and concluded that this did notconstitute a breach of the Code.”
“The complaint was submitted by a Meat Hygiene Inspector working at the Food Standards Agency (FSA) concerning the way in which a whistleblowing disclosure he raised with the FSA was handled, its investigation and outcome. The disclosure concerned a contractor (Person A) working for the FSA, who the complainant believed was falsifying official records in order to cover up poor food hygiene practice within a food business operator premises.”
The Commission concluded that there had been misrecording about faecal contamination of carcasses, and that the FSA had breached the Code by not following its own whistleblowing procedure and not addressing concerns soon enough, with the effect that:
“The key aspect, which is the malpractice concerning contamination recording, continued for a longer period therefore than would otherwise have been the case.”
“The complaint was submitted by a member of staff working at Public Health England (PHE) and concerned allegations that relate to misuse of safety procedures required by the Genetically-Modified Organisms (Contained Use) Regulations 2014 (the Regulations), allegations of bullying and harassment and an allegation that an investigation by PHE into the complainant’s concerns was not carried out properly.”
The commission concluded that PHE’s handling of the concerns breached the Code: “The panel has concluded that the delay was a breach of the requirements of paragraph 16 of the Code, a failure to investigate the concerns when they were first raised and investigate them effectively.”
The complainant was temporarily barred from his place of work after raising concerns, but the Commission rejected the contention that this was harassment:
“The panel considered the complainant’s allegation that his restriction to a certain laboratory had been restricted as part of a campaign of harassment. PHE, in a letter to the complainant gave the reasons for his restriction as taking into consideration the levels of stress that the complainant had been experiencing, this was not conducive to the complainant continuing to work in a higher containment laboratory. PHE agreed with the complainant that the restriction would be temporary and one month later he was reinstated.”
“This appeal under the Civil Service Code is from a Prison Officer working at HMP Springhill, concerning the conduct of a number of investigations, and a subsequent external review of those investigations, into the removal of keys from the prison premises. The complainant believes that in the course of the investigations, junior members of staff were discriminated against, that more senior staff involved in the investigations colluded with each other, that important information and key witnesses were ignored when conducting the investigation and that there was a conflict of interest in the way that the external review was handled.”
“During the investigations into the removal of the keys, the investigating managers did not interview and take witness statements from the custodial managers who were on duty at the time and this was deliberate to protect them from disciplinary action and that the custodial managers were content to be excluded from the investigation. This allowed the operational support staff (who were responsible for the removal of the keys) to take sole responsibility for the security breaches.”
The Commission agreed that the complainant’s concerns were valid but found no Code breach: “…the complainant was justified in raising his concerns that it was unfair that Operational Support Grade staff bore full responsibility for the security breaches and Custodial Managers escaped any form of disciplinary sanction. However, there was insufficient evidence to support the view that this was as a result of collusion or unethical behavior and so a breach of the Civil Service Code was not found.”
The Commission also considered that NOMS’ whistleblowing procedures were inadequate: “That NOMS do not have adequate arrangements in place for members of staff to raise concerns under the Civil Service Code and the Department’s published guidance on raising concerns is not fully compliant with the requirements of the Code.”
“This appeal under the Civil Service Code is from a former employee of the Department of Health, about the terms of the announcement, on 17 July 2013, of the Government’s decision following a consultation led by the Home Office
on a proposed level of alcohol minimum unit price (MUP). The complainant asserts that unprofessional and unethical methods were used by Home Office special advisers (and perhaps by officials acting under their instruction), to
alter the terms of the announcement at a late stage. This, he says, was in breach of cross-Government clearance and at odds with the findings of scientific research commissioned by the Government and may have misled Ministers so that they inadvertently make an unfortunate misstatement.”
The Commission noted: “Although the complainant states that he was told at the time in a telephone conversation with Home Office officials that the late changes were as a result of intervention by special advisers, there is no written evidence or other evidence in support of this.”
The Commission did not uphold the complaint or make any recommendations, but it did note an initial failure by the DH to handle the Code complaint appropriately: “The Complainant originally raised his concerns with DH senior manager Person A, requesting that they be taken up and raised with Home Office. His request was declined, despite the fact that he raised an official whistleblowing complaint that was fully compliant with DH whistleblowing procedures and he requested an investigation under the Civil Service Code.”