» Introduction
» Executive Summary
» Background
» The Draft Policy Paper
This paper sets outs as a basis for consultation, the Lord Chancellor's proposals for a draft Confidential Reporting ("Whistleblowing") Policy for all members of the magistrates' courts service. The policy will apply to members of staff, magistrates and any contractors working for any magistrates' courts committee.
Copies are being sent to:
Justices' Chief Executives for distribution to chairmen of magistrates' courts committees
Members of the Magistrates' Courts Consultative Council
HM Treasury
Cabinet Office
Local Government Management Board (JNC for Magistrates' Courts)
If you would like to comment on any of the proposals in the paper, please send your responses to the following address by 12 January 2001.
Email responses can be sent to: rpawson
Further copies of this paper can be obtained from the above address or by phoning 020-7210 8656.
When responding it would be helpful if you explain who you are and, where relevant, who you represent.
Please ensure that you mark your response clearly if you wish your name or the contents of your response to be kept confidential. Otherwise, your name and the general contents of your response may be made public following a request under the Open Government initiative.
1. The Public Interest Disclosure Act 1998 came into force in July 1999. It enables workers, who 'blow the whistle' about wrongdoing, to complain to an employment tribunal if they are dismissed or suffer any other form of detriment for doing so. Only employees can complain of unfair dismissal, but workers who are not employees can complain that they have been subjected to a detriment if their contracts are terminated because they have made a protected disclosure. The legislation covers workers in the public sector (with some exceptions, e.g. those who work in the security services) as well as the private sector.
2. In general, workers should be able to make disclosures about wrongdoings to their employer so that problems can be identified and resolved quickly within organisations. However, the act is not a general charter for discontented works to air any complaint, personal or otherwise, in the media.
3. Although many Magistrates' Courts Committees (MCCs) have internal procedures for confidential reporting already in place, it is intended that the following draft policy procedures replace them.
4. The Committee on Standards in Public Life was set up under the Chairmanship of Lord Nolan. Its task was to recommend measures to ensure the highest standards of propriety in public life. In each of its four reports, the Committee made various recommendations on the role whistleblowing could and should play in ensuring high standards.
5. The Committee recommended that effective whistleblowing arrangements include:
stating clearly that malpractice is taken seriously in the organisation;
indicating the sorts of matters regarded as malpractice;
respecting the confidentiality of staff raising concerns if the so wish;
creating the opportunity to raise concerns outside the line management structure;
indicating the proper way in which concerns may be raised outside the organisation if necessary; such as permitting staff to raise matters in confidence with an appropriate regulator;
allowing access to some other external body such as an independent charity;
giving staff of contracting organisations access to the authority's whistleblowing procedure; and
introducing penalties for maliciously making false allegations.
6. As a consequence of the recommendations contained in Lord Nolan's Report to Parliament, the Public Interest Disclosure Act 1998 was introduced. The Act was originally intended to improve the standards in public life of those working in local government but now includes most workers and protects them from being subject to detriment by their employer.
7. Following on from the Act it would be sensible for MCCs, as employers, to draw up a policy setting out acceptable standards of behaviour and allowing sensitive issues to be dealt with from within the MCC.
8. The draft policy detailed within this paper has drawn heavily on the many policy statements already in place but particularly those of West Midlands, Humberside and Norfolk MCCs to whom we acknowledge with our thanks.
9. Views are sought on the draft policy generally. However, we would appreciate your comments on paragraph 20. Since there is a need to ensure strict confidentiality, it is important that only the person to whom the correspondence is addressed, i.e. either the JCE or the Chairman of the MCC and no other, opens the correspondence.
| Is paragraph 20 strong enough to ensure confidentially; could it be strengthened; if so, how? Or should each MCC put their own arrangements in place.? |
Statement of Intent
Introduction
Aims and scope of this policy
Safeguards
Confidentiality
Anonymous allegations
Untrue allegations
How to raise a concern
How the MCC will respond
Monitoring
How the matter can be taken further
Frequently Asked Questions
Flowchart for the treatment of a disclosure within an MCC
Confidential Reporting "Whistleblowing" Form
1. [Name of MCC] MCC is committed to the highest possible standards of openness, probity and accountability. In line with that commitment we expect anyone who has serious concerns about any aspect of the work within the magistrates' courts service throughout the MCC area to come forward and voice those concerns. We recognise that all cases will have to proceed on a confidential basis.
2. This Confidential Reporting Policy applies to members of staff, magistrates [NOTE - inclusion of magistrates subject to legal advice] and those contractors working for the MCC, for example, agency staff, bailiffs, builders, security or custodial staff. It also covers suppliers and those providing services under a contract with the MCC in their own premises. Within this policy the phrase "members of staff" includes all the above. The policy also takes into account the requirements of the Public Interest Disclosure Act 1998 (PIDA 1998) (End Note 1.).
3. Members of staff are often the first to be aware that there may be something seriously wrong within the MCC. However, they may not express their concerns because they feel that speaking up would be disloyal to their colleagues or to the MCC. They may also fear harassment or victimisation. In these circumstances it may be easier to ignore the concern rather than report what may just be a suspicion of malpractice.
4. This policy makes it clear that individuals can do so without fear of victimisation, subsequent discrimination or disadvantage. This policy is intended to encourage and enable individuals to raise serious concerns within the MCC rather than overlooking a problem or 'blowing the whistle' outside.
5. These procedures are in addition to the MCC's complaints procedures, grievance procedure and other statutory or non-statutory reporting procedures.
6. The policy has been discussed with the relevant trade unions, representative bodies [and Joint Negotiating Committee (Local Government Management Board)] and has their support.
7. This policy aims to:
encourage individuals to raise serious concerns and to question and act upon concerns about practice;
provide procedures to raise those concerns;
ensure that individuals receive a response to their concerns and that they are aware of how to pursue them if they are not satisfied;
assure individuals that they will be protected from possible reprisals or victimisation if they have a reasonable belief that they have made any disclosure in good faith.
8. This policy is intended to cover major concerns about malpractice that fall outside the scope of other procedures. PIDA 1998 identifies specific categories, referred to as "qualifying disclosures" which are the subject of special protection. In order for a disclosure to be a qualifying disclosure, it must be disclosure of information which shows one or more of the following:
that a criminal offence has been, is being or is likely to be committed;
that a person has failed, is failing or is likely to fail to comply with any legal obligation;
that a miscarriage of justice has occurred, is occurring or is likely to occur;
that the health and safety of any individual has been, is being or is likely to be endangered;
that the environment has been, is being or is likely to be damaged;
that information tending to show any matter falling within any one of the preceding matters has been, is being or is likely to be deliberately concealed.
9. However, this policy also includes other areas of serious concern such as the unauthorised use of public funds, fraud and corruption.
10. Thus, any serious concerns that individuals have about any aspect of service provision or the conduct of members of the MCC or others acting on behalf of the MCC can be reported under this policy. This may be about something that:
makes individuals feel uncomfortable in terms of known standards, experience or the standards they believe the MCC subscribes to; or
is against the MCC's Standing Orders and policies; or
falls below established standards of practice; or
amounts to improper conduct.
11. The MCC recognises that the decision to report a concern can be a difficult one to make. This policy is designed to offer protection to individuals who disclose concerns, provided the individual makes the disclosure
in good faith; and
in the reasonable belief that malpractice is involved.
12. The MCC will not tolerate any harassment or victimisation (including informal pressures) and will take appropriate action to protect any individual raising a concern in good faith.
13. In this respect, the Public Interest Disclosure Act 1998 which came into force in July 1999, enables workers, who 'blow the whistle' about wrongdoing, to complain to an employment tribunal if they are dismissed or suffer any other form of detriment for doing so.
14. Any investigation into allegations of potential malpractice will not influence or be influenced by any disciplinary or redundancy procedures that already affect an individual making a disclosure.
15. The MCC will treat all such disclosures in a confidential and sensitive manner. The identity of the individual making the allegation will be kept confidential so long as it does not hinder or frustrate any investigation. However, the investigation process may reveal the source of the information and the individual making the disclosure may need to provide a statement or come forward as a witness as part of the evidence required.
16. This policy encourages individuals to put their name to any disclosures they make. Concerns expressed anonymously are much less credible, but they may be considered at the discretion of the MCC.
17. In exercising this discretion the factors to be taken into account would include:
the seriousness of the issues raised;
the credibility of the concern; and
the likelihood of confirming the allegation from attributable sources.
18. If an individual makes an allegation in good faith, which is not confirmed by the investigation, no action will be taken against that individual. In making a disclosure, the individual should exercise duty of care to ensure the accuracy of the information. However, if an individual makes frivolous, malicious or vexatious allegations, or makes allegations for personal gain, disciplinary action may be taken against that particular individual.
19. Confidential advice/guidance on how to pursue matters of concern may be obtained from:
the local Justices' Clerk;
the Head of Personnel or
a local trade unions representative.
20. However, individuals should raise concerns formally with the Justices' Chief Executive. If disclosure concerns the Justices' Chief Executive, then disclosure should be made to the Chairman of the MCC. Since there is a need to ensure strict confidentiality, it is important that only the person to whom the correspondence is addressed, i.e. either the JCE or the Chairman of the MCC and no other, opens the correspondence. We recommend that the correspondence should be marked "Restricted - Personal. To be opened by the addressee only".
21. The earlier a concern is raised, the easier it is to take action. Concerns may be raised verbally or in writing. Staff who wish to make a written report should use the following format:
the background and history of the concern (giving relevant dates);
the reason why they are particularly concerned about the situation.
22. A suggested form can be found at Annex C.
23. Although individuals are not expected to prove beyond doubt the truth of an allegation, they will need to demonstrate to the person contacted that there are reasonable grounds for their concern to be acted upon.
24. The JCE, as the person to whom the disclosure is made, will consider the information made available. In order to protect individuals and those accused of misdeeds or possible malpractice, initial enquiries will be made to decide whether an investigation is appropriate and, if so, what form it should take. The overriding principle which the MCC will have in mind is the public interest. Any internal investigation should be dealt with, within 30 days.
25. Some concerns may be resolved by agreed action without the need for investigation. If urgent action is required this will be taken before any investigation is conducted.
26. The JCE will decide on the form of investigation to be undertaken and to whom the investigation should be delegated. Where relevant, the matters raised may:
be investigated by management or through the disciplinary process;
be referred to the police;
be referred to the appropriate external auditor;
form the subject of an independent inquiry.
27. Within 10 working days of a concern being raised, the JCE will write to the individual:
Acknowledging that the concern has been received;
Indicating how the MCC proposes to deal with the matter;
Giving an estimate of how long it will take to provide a final response;
Informing whether any initial enquiries have been made; and
Stating whether further investigations will take place and if not, why not.
28. The amount of contact between those considering the issues and the individual will depend on the nature of the matters raised, the potential difficulties involved and the clarity of the information provided. If necessary, the MCC will seek further information from the individual.
29. Where any meeting is arranged, off-site if wished, the individual can be accompanied by a union or professional association representative or another person of their choice.
30. The MCC will take steps to minimise any difficulties which individuals may experience as a result of raising a concern. For instance, if individuals are required to give evidence in criminal or disciplinary proceedings the MCC will arrange for them to have advice about the procedure.
31. The MCC accepts that the individual needs to be assured that the matter has been properly addressed. Thus, subject to legal constraints, the JCE will inform the individual of the outcome of any investigation.
32. The Justices' Chief Executive has overall responsibility for the maintenance and operation of this policy. The JCE will maintain a record of concerns raised and the outcomes (but in a form which does not endanger confidentiality) and will report as necessary to the MCC.
How the matter can be taken further
33. This policy is intended to provide individuals with an alternative within the MCC to raise concerns. The MCC hopes individuals will be satisfied with any action taken. However, depending upon the problem, information on a specific point may be obtained from one of the agencies listed below.
Lord Chancellor's Department
Magistrates' Courts Service Inspectorate
External auditor
Trade Union
Police
Law Society
Bar Council or
other relevant professional bodies or regulatory organisations, including those prescribed in the Public Interest Disclosure (Prescribed Persons) Order 1999 ( SI 1999 No. 1549 ), for example:
Audit Commission for England and Wales
Criminal Cases Review Commission
Commissioners of Customs and Excise
Commissioners of the Inland Revenue
Comptroller and Auditor General of the National Audit Office
Data Protection Registrar
Director of the Serious Fraud Office
Health and Safety Executive
34. If individuals do take the matter outside the MCC, they should ensure that they do not disclose confidential information. Advice/guidance is available as previously stated.
35. A list of frequently asked questions can be found at Annex A while a flow chart for the treatment of a disclosure within an MCC can be found at Annex B.
| Chairman [....] Magistrates' Courts Committee [date] |
Justices' Chief Executive [....] Magistrates' Courts Committee [date] |
Q1: What are my rights under the Public Disclosure Act?
Your disclosure is deemed to be protected, you would automatically be reinstated at a tribunal if you had been dismissed. Uncapped compensation can also be awarded at the tribunal to worker who is penalised or victimised for making a protected disclosure. This protection applies irrespective of age or duration of employment.
Q2: What is a protected disclosure
In order for a disclosure to be a qualifying (i.e. protected) disclosure, it must be disclosure of information which shows one or more of the following:
that a criminal offence has been, is being or is likely to be committed;
that a person has failed, is failing or is likely to fail to comply with any legal obligation;
that a miscarriage of justice has occurred, is occurring or is likely to occur;
that the health and safety of any individual has been, is being or is likely to be endangered;
that the environment has been, is being or is likely to be damaged; and/or
that information tending to show any matter falling within any one of the preceding matters has been, is being or is likely to be deliberately concealed.
Q3: Under what circumstances is a disclosure protected?
In order for a disclosure to be protected, you must show that you acted reasonably and responsibly. Provided it was made in good faith, a disclosure will be still be protected even if it ends up being unfounded. However an employee who makes a rash disclosure (to the media, for example, of a matter which could and should have been raised internally) will not be protected.
Q4: What if a disclosure is malicious or reckless and without foundation?
In such circumstances the employee making the disclosure would not be protected. The employee may be subject to the committees disciplinary procedures. This would depend on the individual circumstances.
Q5: What if the person making the disclosure is, or has been, part of the malpractice?
This depends on the circumstances. There can be no guarantee of immunity from the action against a person making such a disclosure. The fact that he ultimately revealed the malpractice might mitigate against any penalty imposed.
Q6: I have a confidentiality clause in my contract - can I still make a protected disclosure?
Yes, providing the disclosure fulfils the provisions of the Public Interest Disclosure Act.
Q7: I am a magistrate/magistrate member of the MCC. Am I protected if I make a qualifying disclosure about a member of staff or fellow magistrate?
[Awaiting legal advice.]
ANNEX C
Follow this link to Annex C (Confidential Reporting "Whistleblowing" Form).
The Public Interest Disclosure Act 1998 came into force in July 1999. It enables workers, who 'blow the whistle' about wrongdoing, to complain to an employment tribunal if they are dismissed or suffer any other form of detriment for doing so. Only employees can complain of unfair dismissal, but workers who are not employees can complain that they have been subjected to a detriment if their contracts are terminated because they have made a protected disclosure. The legislation covers workers in the public sector (with some exceptions, e.g. those who work in the security services) as well as the private sector.