CORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 83-iii

House of COMMONS

MINUTES OF EVIDENCE

TAKEN BEFORE

PUBLIC ADMINISTRATION COMMITTEE

LEAKS AND WHISTLEBLOWING IN WHITEHALL

Tuesday 10 February 2009

SIR CHRISTOPHER KELLY KCB and DR BRIAN WOODS-SCAWEN

Evidence heard in Public Questions 175 - 207

USE OF THE TRANSCRIPT

Oral Evidence

Taken before the Public Administration Committee

on Tuesday 10 February 2009

Members present

Dr Tony Wright, in the Chair

Paul Flynn

David Heyes

Kelvin Hopkins

Mr Ian Liddell-Grainger

Julie Morgan

Mr Gordon Prentice

Paul Rowen

Mr Charles Walker

________________

Witnesses: Sir Christopher Kelly KCB, Chair, and Dr Brian Woods-Scawen, member, Committee on Standards in Public Life, gave evidence.

Q175 Chairman: Perhaps we could turn our attention to Leaks and Whistleblowing. Are there any introductory remarks you would like to make?

Sir Christopher Kelly: Whistleblowing was clearly a very important issue for the Committee in its early years. We set down a number of principles in a number of reports which were, on the whole, widely accepted. We returned to the subject in 2005, when the main recommendations were that regulators should take a particular interest in the whistleblowing arrangements in the bodies which they were responsible for regulating, and that departments and public bodies should make sure that the whistleblowing procedures they had, not only formed part of a general culture of openness and so on, but also were widely understood when that failed. In that respect, it is disappointing that the Public Concern at Work survey, which they did I think in 2007, suggests as far as departments are concerned - and I do not think anyone received full marks in their survey - that while some departments were better than others, there were still very large numbers of departments which had not seriously begun to address that issue.

Chairman: Thank you for that.

Q176 Mr Liddell-Grainger: In your opinion, is there any place for people that leak?

Sir Christopher Kelly: That depends on what you call a leak. One would like there to be a situation in which there was such complete openness about what went on inside government departments through routine exposure, even without the operation of the Freedom of Information Act, and a regime inside departments which allowed people, which encouraged people, to raise concerns when they thought things were happening which should not be happening, that leaking was completely unnecessary. But there will be occasions when that is not the case. On those occasions, I would prefer that two things happen: one is that people use the whistleblowing procedures which now exist, which would normally be the right course, but, second, if you were a civil servant and you thought something was going tremendously wrong then one would like to think that people had sufficient integrity to resign over the issue rather than to leak it.

Q177 Mr Liddell-Grainger: We have had some spectacular leaks. Every MP, from the top down, tends to be a recipient of leaks. Some of us are more bothered about our leaks than others. Do you think that it has now undermined public trust? Are leaks seen as a good thing or a bad thing in your eyes?

Sir Christopher Kelly: If I were a member of the public?

Q178 Mr Liddell-Grainger: Yes.

Sir Christopher Kelly: If I were a member of the public.

Q179 Mr Liddell-Grainger: Perhaps it is not a fair question. You are not just a member of the public.

Sir Christopher Kelly: I suspect that as an ordinary member of the public I would enjoy the results of leaks and I probably would not think about the impact on trust between civil servants and ministers and the other way round.

Q180 Mr Liddell-Grainger: Is that not the problem: that the public want leaks because they want to know what this Government is up to?

Sir Christopher Kelly: Yes.

Q181 Mr Liddell-Grainger: The Government does not always want to tell the public what they are up to. Therefore, given what you have said to start with, do leaks not have a place in the way our political system works?

Sir Christopher Kelly: Mr Prentice was suggesting that I did not give simple answers to simple questions. The real answer to your question "Do I think leaks have a place?" is no, they should not have. What should happen is a much greater degree of routine transparency in the flow of information out of government departments and elsewhere.

Q182 Mr Liddell-Grainger: One of the problems is that whistleblowers, regardless, cannot be adequately protected. If they are within the leaked system they are not going to be protected. Let us be absolutely honest about it, their life will be made hell and they will be forced to go and count beans in Stornoway or somewhere equally as lovely. How does the Committee for Standards in Public Life get around that? How do you protect the people who need the most protection and are prepared to stand up and be counted?

Sir Christopher Kelly: The reality is as you describe it: there are some circumstances in which it is possible to whistleblow and have your anonymity retained. The law has been changed, as you know, to provide people with protection. But you are absolutely right: one of the dilemmas is that very often whistleblowers will find it very difficult to remain anonymous. They ought to receive protection under the Act, but, as you imply, there must be ways of honouring your obligations under the Act while still cutting someone off from the things that give them satisfaction in their jobs.

Q183 Mr Liddell-Grainger: Do you feel that the Act is strong enough? If it had to be changed - and I say "if" - how would you look to change it to give protection?

Sir Christopher Kelly: I am not an expert in this field and it would be wrong of me to ----

Q184 Mr Liddell-Grainger: I ask you to do a bit of crystal ball gazing.

Sir Christopher Kelly: I am not an expert in this field, but, on the face of it, the protection which the Act gives is quite substantial. It is not obvious to me that the problems lie in the strength of the Act so much as in the inherent difficulties with blowing whistles in circumstances in which, particularly since you are encouraged to raise your concerns first with the management line, the possibilities of remaining anonymous must often be fairly small.

Q185 Mr Liddell-Grainger: We have had a fairly high profile incident with an MP. On receiving leaks - and we all get leaks - come on, let us be honest - should MPs use them?

Sir Christopher Kelly: Should you use them?

Q186 Mr Liddell-Grainger: Yes. Should MPs be allowed to use leaks? If so - providing it is not security issues, I accept that - should we therefore not have some form of immunity to use information that should be in the public domain? I think it is the job of an MP, basically.

Sir Christopher Kelly: I do not have any difficulty with that. Provided we are not talking about security issues, as I say, I personally - and this is not an issue we have discussed in Committee - have no difficulty with MPs using leaks. As you say, a lot of what you do would be a lot more difficult if you were not able to.

Q187 Mr Liddell-Grainger: It would not be as much fun either, I can tell you. If the culture, therefore, is one of leaks, and you are not going to stop leaks because that is the way of the world and we court leaks and the press themselves court leaks - we feed off each other, let us be honest - you can only try to contain leaks in a way that is mandatory on both sides. Is that possible or do we just have to take each individual case as it comes along?

Sir Christopher Kelly: Is it possible to contain leaks? As other people, I know, will have said to you, what appears to be a leak is not always a leak. One minister's briefing is a leak. Some things which are described in the press as leaks are nothing like leaks. I have seen things reported as leaks which have been the subject of press notices. There are plenty of things which are described as leaks which are not really leaks at all. Should they be contained in some way? As I say, if there was much greater routine observance of the principles of the Freedom of Information Act, then the need for the sort of thing which is often described as leaks but which is really explanation or briefing will become much less.

Mr Liddell-Grainger: Thank you, Chairman.

Q188 Paul Flynn: We had some impassioned evidence about one of the whistles that was not blown and that is on the question of the Iraq War and the advice on the Iraq War. There was a prominent resignation by a civil servant who chose not to leak the information. Had she done that, it is conceivable that Britain's involvement in the Iraq War would not have taken place. It might have altered the decision in the House of Commons, because it was a narrow vote anyway and if MPs had realised it was an illegal war they would have changed things. Should it not be a positive duty on civil servants to leak in those instances? Should we not regard whistleblowers who do leak in other cases - and there are other famous cases, on the Belgrano and so on, where the whistleblower has a greater status and their career is protected. Should the whistleblower look forward to a few knighthoods?

Sir Christopher Kelly: Again I am not an expert on this area. But it is my understanding that the Civil Service Code does require people, if they see circumstances in which Parliament is being misled or whatever, to take action. I think an obligation is there already. I share the respect that other people have for the individual who did resign over Iraq. Did she make the right decision in simply resigning and not making it apparent the reasons for her resignation? These are very much personal decisions. I do not know enough about her circumstances to know what I would have done in the same case.

Q189 Paul Flynn: The other side of the coin is the allegation that in one department, in a small team very near the Minister, there was somebody who was a party political activist, who stood in election and so on, who was allegedly regularly leaking matters that were confidential. Is that situation not completely impossible? Is it not right that the person concerned, who had been actively political, should be looked at askance when appointments were coming up? Should there not be a bias against appointing them into such positions?

Sir Christopher Kelly: I read the transcript of that. I do not think I would support a situation in which anyone who had been a political activist was never allowed to be appointed to the Civil Service. There are plenty of examples of people who have done that.

Q190 Paul Flynn: It is the private office.

Sir Christopher Kelly: Would I want to be careful about who I appointed to private office? Answer: Yes, I would. Self-evidently, after the event, a mistake was made in putting that individual there. A blanket ban, I am not sure I would be in favour of.

Q191 Mr Walker: Dr Woods-Scawen, you have come from the private sector, PWC. You must have a view on leaks. Maybe if some people working for our banks had done a bit more leaking about their bosses cooking the books, we would not be in the terrible mess we are in now. What is your perspective on this high-minded debate we are having at the moment?

Dr Brian Woods-Scawen: Whether you call it leaks or whistleblowing, it generally flows from dysfunctional leadership in the public and the private sector, because it is leadership that does not encourage a culture of open debate, of sharing views, of dissent. You can trace an awful lot of it to leadership. Is there a responsibility? Yes, there is, but, generally, when you have exhausted, as it were, the internal remedies and you still feel as an employee, whether it is fraud or misrepresentation of information or malpractice - the whole range of things we are talking about, not just policy advice - that something of significant public interest is being withheld, I absolutely believe there is a right and a responsibility to go to the appropriate person. In some cases in the private sector that may well be to the regulator and regulated industries, and that would have been the next step in financial services. In some cases, in the Civil Service for example, there are the Commissioners. I think the consequence is that the burden of proof on you has increased, because independent people have looked at it and decided that there is not a case to answer, but that should not of itself prevent you making public the information, having exhausted all of those internal and prescribed external remedies. There will always be cases. ENRON, for example, was discovered by a whistleblower. Would anyone say that the whistleblower should not have acted in that way? Absolutely not. It is right and in the public interest that that kind of scandal is uncovered. It must not be for trivial matters, it must not be the first port of call, but there is a residual space for this.

Q192 Mr Walker: Do you have some sympathy for the whistleblower in the Damian Green case, if I might call it that, who saw that the Home Office, which is meant to be protecting the citizens of this country, was going around employing people who were illegal immigrants? Do you think he was perhaps acting in the national interests? Some people have said that he was leaking sensitive material and that jeopardised the very safety of our country, but I would have thought that the fact that people were being employed who were illegal immigrants was jeopardising the safety of this country as well. Can you see the moral dilemmas that he would have faced?

Dr Brian Woods-Scawen: There are always going to be moral dilemmas in these things. Almost by definition you are not talking about things that are straightforward. I do not know a lot about the detail of that case but I would make some general observations. First of all, if any civil servant is leaking information for party political advantage, that seems to me wrong. Second, the question I posed earlier: "Have all the internal remedies be exhausted?" would be an important question. If they had, and an official believed that the public interest was being prejudiced and nobody was doing anything about it, having raised it with all those appropriate people, yes, I think they should do it.

Q193 Mr Walker: Your advice to whistleblowers, in conclusion, would be: "If you have a problem with the way your department is being run, do not go to an Opposition Member of Parliament but probably go straight to the press." That seems to be what you are suggesting.

Dr Brian Woods-Scawen: I think you have to go to the place which is going to have the most impact on your concern. There would not be a single answer to that. I do think that in every case of external whistleblowing, somebody should be asking the question: Is there something about the culture and tone of the leadership of this organisation that has made this happen?

Mr Walker: Thank you.

Q194 Kelvin Hopkins: I draw something of a distinction between leaks which can be mischievous and not really something which you would take strong action about, and whistleblowing, which is about where something is wrong. I am reminded that "Hard cases make bad law". We look at core cases, where there is a procedure for whistleblowers - an apparent management procedure where you can go to a senior person, and someone is found out, someone is found guilty of corruption or some bad behaviour within the organisation - and yet the informant is still victimised after that. There must be some sort of protection. In the past, when trade unionism was much stronger, trade unions gave protection to people in those circumstances. Trade unions in many organisations now are either non existent or very weak, and we have to have more protection in law. Could there not be some stronger protection in law for whistleblowers where, for example, a manager has been found to be corrupt or someone has been prosecuted successfully as a result of their whistleblowing?

Dr Brian Woods-Scawen: The problem is you are dealing with real people in real situations. If people are going to have to work together and things have happened in their relationship, that is not always easy. It could well be that there should be stronger protection in employment tribunals. In the last complete year there were 1300 employment tribunals where there was an allegation or defence of victimisation under the whistleblowing procedures. Interestingly, only 25% of those were adjudicated because the rest were settled, so there is clearly an instinct on the part of employers to settle matters that might damage their reputation in terms of not responding to whistleblowing becoming public, and that does not seem to me to be great. But I do think there is one other obligation which could be imposed on leadership of organisations in both the private and the public sector, and that is in annual reports, to confirm that the board or whatever the leadership body of the organisation is, has reviewed and is satisfied with the whistleblowing arrangements in their organisation. The fundamental problem here, I think, is that in many organisations, in both sectors, whistleblowing is not taken seriously by senior management. I think pressures have to be put on senior management to take it more seriously.

Q195 Kelvin Hopkins: The pressure can only come from one of two places really. One is through the law and the other is through some sort of employee organisation, like a trade union. In all those cases presumably the management ultimately backed off and did a deal because they did not want to lose in the tribunal - because it would be unlikely to be the other way round, I would think - but many organisations and many employees cannot take things to tribunal because they cannot get representation, there are no trade unions in the workplace, so protection in law for those people ought to have a role.

Dr Brian Woods-Scawen: If we are going to take whistleblowing seriously - and the Act was a first step at this, I do not think anyone would say that the Act is the final step - then there must be a legal framework for whistleblowers. If there is no legal framework for whistleblowers then whistleblowing is never going to be very effective. The question is: is the Act a final destination in terms of protection? I do not know but I would be surprised, because you learn from experience and then you move on. If we are serious about whistleblowing playing its full and important role in both the public and private sectors, then certainly the legal framework for protecting whistleblowers appropriately - not protecting them against malicious allegations, not protecting them against taking action when they have not exhausted other remedies, but ultimate protection - is important.

Q196 Kelvin Hopkins: Our focus is really upon the Civil Service. In the last month a constituent has come to me, whistleblowing about his employer who is breaking the law. He is fearful of me mentioning the name of his solicitor or mentioning his name in any circle whatsoever because, if there is an investigation, the upshot of that will be that he loses his job. He says, "Don't raise my concerns with others, whatever you do." Those circumstances have to be challenged. They can only be challenged if there is some proper legal redress, some office locally where you can go as a whistleblower and say, "This isn't right."

Dr Brian Woods-Scawen: I do not disagree with that. I would just say that I do not know and I have not thought enough about what that protection should be. If there is not effective protection for whistleblowers, then there will be less whistleblowing.

Q197 Mr Prentice: Is there a document out there that lists leak inquiries that have been initiated and what happened?

Dr Brian Woods-Scawen: Not to my knowledge.

Sir Christopher Kelly: I have no idea.

Q198 Mr Prentice: So we do not know.

Sir Christopher Kelly: I do not know.

Q199 Mr Prentice: I remember last year there was talk about a leak inquiry into the Treasury, a very, very important issue. I think it was the cut in VAT that was leaked beforehand. It has just disappeared into the ether, yet the leak inquiry into what happened in the Home Office has consumed acres of newspaper space. I am intrigued to know whether anyone monitors these. Ministers are always saying, "We are going to have an inquiry," or senior civil servants are saying, "We're going to have an inquiry into this leak" and then it all disappears into a puff of smoke.

Sir Christopher Kelly: My experience of these things, which is now very out-of-date because I left the Civil Service in 2001, but it included a spell in the Treasury, is that leak inquiries very seldom result in any concrete outcome. I do not know whether that is true generally. The difference between those cases and the case that we are talking about, or rather not talking about, is that the police were involved.

Dr Brian Woods-Scawen: Certainly, in all of this, if there is one recommendation you could make that could potentially make a difference, it would be that, if there is whistleblowing where either individuals are victimised or the organisation was not shown to have responded well to the initial allegations, then the senior management of the organisation should be held to account, because it is a failure of senior management.

Q200 Mr Prentice: It is all there in the Civil Service Code, as Sir Christopher said. If a civil servant feels that something is happening and Parliament is being misled, then that person can speak out. It is a question of how the Civil Service Code is translated into good practice. We want a culture in the Civil Service which makes it okay for civil servants to speak out if they think there is impropriety, the rules are being bent. You understand.

Sir Christopher Kelly: Absolutely.

Q201 Chairman: We had an interesting exchange on all this a week or two ago, when Peter Hennessy was here with Sir David Omand - you have probably read the transcript.

Sir Christopher Kelly: I have read it, yes.

Q202 Chairman: It was wrestling with this circumstances in which one might properly whistleblow. I do not want to traduce him, but I think Peter Hennessy came down on the side of thinking yes. He could see there were circumstances in which you would, and that got him into talking about the Iraq case and the war in the Foreign Office and so on. Sir David Omand's view, civil servant, was no. He thought there was not a case, that if you just used the proper procedures and civil servants did their jobs properly, then it could all be taken care of. Faced with the seven principles of public life, would someone in one of these dilemmas find the seven principles of public life helpful to them? I suppose I am asking you where you come down on this argument.

Sir Christopher Kelly: Where do I come down? I partly answered that question, or I tried to answer it, before. It would be nice to think that there was no place for leaks, either because, as David Omand told you, there was sufficient freedom of information anyway or because the whistleblowing arrangements worked adequately. But the real world often is not like that and sometimes things happen. Clearly, with something as major as the Attorney General's opinion on the legality of the Iraq War, it would be very difficult for someone who thought that something seriously wrong had happened there to go on working in the Department which allowed it to happen. But there may be other circumstances in which people feel equally strongly, but where either because of their personal circumstances or the difficulty of finding other jobs, they see difficulty in using a whistleblowing procedure because they would be identified and they fear being victimised. There may then well be circumstances in which a leak was the right course of action for someone who wants to behave in accordance with the principles of public life. I say that with some hesitation, because integrity is one of the important principles and I am not certain that doing that could be said to show integrity. But nevertheless, there may be circumstances in which that would be the right thing to do.

Q203 Chairman: That is an interesting answer. I am grateful for it. Not many cases, as far as we can see, seem to go up through the system inside the Civil Service. The Civil Service Commission do not seem to deal with many. Either that is because these are not issues that detain people very much or because people do not feel perhaps that this is a system which is genuinely something they feel they can use. We had a discussion in a previous session as to whether Members of Parliament might be seen in some sense as an external regulator to whom one might go. I am not asking that question. I am asking this question: If someone thought you were an external regulator to whom they could go in terms of the provisions under the whistleblowing provisions, would that be reasonable?

Sir Christopher Kelly: Would it be reasonable to come to us? If somebody did think there was no one else to come to but me or some other member of the Committee, then the arrangements that are supposed to exist would have broken down. Because, as you say, there is the ability to go to the Civil Service Commissioners, either directly or because you are effectively appealing against not being heard, and I think it would be, as I say, a sign of arrangements not working if anyone did come to us. It has not happened in the past twelve months. From time to time, just as I am sure in your postbag, in our postbag we get people raising what are often individual grievances, but they are not usually of a kind which look like whistleblowing. They are much more of a kind: "I have been very badly treated by my boss". I am sure you get those sorts of letters all the time.

Q204 Chairman: We have had a good go at you - no, I mean we have had a good discussion!

Sir Christopher Kelly: Both statements are applicable.

Q205 Chairman: As you have seen, we take a close interest in your work.

Sir Christopher Kelly: Yes.

Q206 Chairman: We hope you appreciate that. If we are critical, it is partly because it is in our blood stream but also because we want to urge you on, I think.

Sir Christopher Kelly: Indeed.

Q207 Chairman: I think you probably, in your inner self, want to be urged on. Perhaps between us we could get there. We are really grateful for this afternoon to both of you. Thank you for helping us with our own inquiry.

Sir Christopher Kelly: Thank you for giving us the opportunity. I am delighted to be urged!

Chairman: Thank you.