Whistleblowing
67. Under the Public Interest Disclosure Act
1998, the Office of the Children's Commissioner for Wales is a
prescribed regulator for whistleblowers.[86]
The Deputy Commissioner told us that between four and six cases
were reported annually, which provided very important information.[87]
The Children's Commissioner has described complaints, advocacy
and whistleblowing as his "essential safeguards in promoting
and safeguarding the rights and welfare of children".[88]
However, although the proposed Order refers to advocacy services
and to complaints, whistleblowing is not referred to on the face
of the revised Order.[89]
In a memorandum to the Assembly Committee, the Commissioner stated,
"… it is vital that this function is retained".[90]
68. The Children's Commissioner noted that the
Explanatory Memorandum to the proposed Order states:[91]
Matter 15.7 covers the functions of the Children's
Commissioner for Wales including the office's specific role in
relation to reviewing and monitoring of complaints, advocacy and
whistleblowing arrangements of public bodies in Wales …[92]
69. The Deputy Minister's view to the Assembly
Committee was that whistleblowing was outside the scope of the
devolution settlement as changes to the law to offer protection
to the whistleblower were matters of employment law,[93]
although she later said in evidence to us:
I do not see that the LCO as it is presented would
exclude any measures in the future that would be to do with whistleblowing.[94]
70. Mr Mike Lubienski, a lawyer for the Assembly
Government who accompanied the Deputy Minister, confirmed that
whistleblowing did come within the scope of the proposed Order:
There are a number of aspects of the matters by which
it might be covered. It is an aspect of safeguarding children
from harm and neglect in 15.1. In relation to social care services
it might be a requirement that will be placed on the providers
of social care services … The reason that the word itself
has not been used in the Order is that it does not have a statutory
definition.[95]
On the occasions that there are references to the
activity of whistleblowing, such as in statutes like the Public
Interest Disclosure Act, there is a fairly lengthy set of wording
to describe the breadth and scope of what the activity is and,
therefore, in a kind of Order of this sort where we are trying
to set out in relatively few words the legislative scope, it was
felt that it was not necessary because that type of activity was
clearly covered by the wording at present.[96]
71. In its Report on the proposed Order as originally
published, the Assembly Committee concluded that it was "unconvinced"
by the reasons put forward by the Deputy Minister for not making
specific reference to whistleblowing in Matter 15.7 (and to advocacy
- reference to which was subsequently included in the revised
Order).[97]
72. We recognise and appreciate
the Children's Commissioner's description of whistleblowing as
one of his "essential safeguards in promoting and safeguarding
the rights and welfare of children". While the term "whistleblowing"
itself has no statutory definition, we recommend that the proposed
Order be amended to make it clear that the Order will do nothing
to weaken the Children's Commissioner's existing powers in relation
to whistleblowing.
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