Agenda item

To consider the whistleblowing policy and procedure for elected members.

•           That the Committee declared support for the policy and asked the Monitoring Officer to make changes in line with his response to members' comments.

The Cabinet Member for Corporate and Legal Services and the Welsh Language submitted the report, reminding Members that the Cabinet had adopted an amended Whistleblowing Policy for staff in January. It was noted that adopting the policy had been a high priority and an important step forward in strengthening the Council's procedures and arrangements in response to the Our Bravery Brought Justice report.  It was explained that there had been a call at the same time for a policy that would provide a way for elected members and co-opted members to raise concerns about any misconduct.

It was noted that there was a need to prepare a policy that was appropriate for Cyngor Gwynedd elected members, as the staff whistleblowing procedure was based on employment legislation and legal protection under the Public Interest Disclosure Act 1998. It was explained that the policy offered guidance to members on how to raise concerns in a safe and clear space, and that the procedure co-existed with other arrangements such as the Code of Conduct and the Safeguarding Policy. It was emphasised that this strengthened the Council's arrangements to respond to any impropriety for the benefit of the county's residents.

It was reported that discussions had been held with the Member Enquiries Task Group when preparing the policy, and that engagement had also taken place with all the members. It was noted that they had consulted with Protect, a charity with expertise in the field of whistleblowing, and that the Standards Committee had considered the policy earlier in the month and had expressed support for it. It was considered that the next step, after receiving the Committee's observations, would be to submit the policy to the Full Council in July with the intention of adding it to the Council's Constitution.

During the discussion, the following observations were made:-

The policy was welcomed, noting that it was a positive step forward. It was suggested that including a general definition of what whistleblowing meant made the policy easier to read and gave a clearer context. In response, it was explained that whistleblowing was an employment concept which derived from employment law, and that it was essentially a framework for raising concerns about serious matters. It was noted that the policy offered two things to elected members, namely a place to raise matters that they considered to be serious and an element of confidentiality in doing so. It was emphasised that the intention was to create a space that was as safe as possible to raise serious concerns.

It was acknowledged that the policy was an important step forward because this type of specific protection had not been available to councillors previously. The fact that the policy acknowledged concerns about significant misconduct or criminal or illegal behaviour, that it offered confidentiality when raising those concerns and that it stated that any type of poor treatment a member may face as a result of making a disclosure should be reported, was welcomed. However, many changes that would strengthen the policy were suggested.

Concern was expressed that the policy largely relied on internal processes. It was suggested that a member raising concerns about senior officers, organisational culture or governance failures might feel that there was not a truly independent route available. It was suggested that an alternative route should be available under such circumstances, which would allow a councillor to directly contact external bodies such as the Police, Audit Wales or any other relevant regulator. It was acknowledged that such a route would not likely be used in the majority of cases, but it was emphasised that it should be available.

Attention was drawn to paragraph 3.3 of the policy, which stated that concerns about the safety or well-being of children or adults should be addressed in accordance with the national safeguarding policy. It was acknowledged that this was appropriate in relation to individual cases, but it was suggested that the wording could give the impression that the policy was irrelevant should a member want to raise concern about a systemic failure in safeguarding arrangements. It was emphasised that individual safeguarding cases should not be addressed under the policy, but it was suggested that the wording should be changed to make it clear that concerns about systemic failures in safeguarding procedures could be raised through this route. It was suggested that clear deadlines should be set for dealing with matters. In response to the suggestions, the following was noted:-

·       A member, in relation to any concern, had a right to contact an external agency. It was explained that the Code of Conduct provided an open route to refer matters to the Council, the Police or other relevant bodies.

·       It was confirmed that a sentence could be added to clearly highlight that this procedure was not the only one available.

·       ⁠Paragraph 3.3 referred to referrals regarding an individual child or adult, which should be addressed under the appropriate safeguarding procedure. It was noted that it would be inappropriate for individual safeguarding cases to be submitted to the Monitoring Officer under the whistleblowing policy. It was noted, however, that the policy could be an appropriate way to raise serious concerns about systemic failures in safeguarding arrangements. It was confirmed that wording could be added to highlight this difference between individual cases and systemic failures.

·       The protection given to staff who were whistleblowing was statutory. It was explained that the Public Interest Disclosure Act 1998 adapted the employment legislation and provided protection such as the ability to claim compensation, an employment tribunal should an individual be persecuted, as well as protection from unfair dismissal.

·       The relationship between elected or co-opted members and the Council was different to an employment relationship. Should a member be treated inappropriately by a member of staff as a result of a whistleblowing matter, this could be a disciplinary matter, and it would be treated as one. It was noted that the policy already referred to that.

·       Should the inappropriate behaviour come from another member rather than a member of staff, that would more than likely be a matter under the Code of Conduct. It was emphasised that the policy should not offer a level of protection that could not actually be provided.

·       The consequences of inappropriate behaviour from another member could be political in their nature, and the ability of the authority, as a corporation, to deal with such situations could be limited. However, it was noted that the policy at least highlighted a system to raise the matter.

·       That setting deadlines for investigations was complex, because the subsequent actions would depend on the nature of the concern. Should the matter be criminal or involve the Police or the Health and Safety Executive, the investigation schedule would be beyond the Council's control. The Council could set a timetable to acknowledge the concern and provide an initial response, as well as commit to keep in touch with the member. However, it was noted that the timetable for the subsequent steps varied according to the nature of the matter.

The view was expressed that increasing the number of documents and policies did not make things clearer. It was noted that paragraph 6.2 referred to referring matters to the Police or an external authority when that would be appropriate, and the decision to do so was in the hands of the Monitoring Officer after receiving a request from a member under the policy. It was questioned whether there was a fundamental paradox in the Monitoring Officer's role. It was noted, on one hand, that the Monitoring Officer was responsible for monitoring the propriety of members, staff and the authority itself and, on the other hand, acted as the main legal officer responsible for the Council's legal protection. It was suggested that it might be more appropriate for the Monitoring Officer to come from another authority, whilst the main legal officer stayed within their own authority.

In response, it was explained that this matter had been the subject of an ongoing discussion amongst officers who had fulfilled the same role, as the two functions were combined in many authorities. It was noted, based on experience, that problems rarely came up, because propriety was relevant to the two roles. It was acknowledged that a theoretical paradox could arise should the Monitoring Officer's role be more operational in legal matters, but it was noted that this had not been a problem in practice. It was acknowledged that the question had come up by others over the years, but it was explained that this was the procedure used in the majority of councils in Wales and other public bodies with Monitoring Officers.

It was noted that paragraph 6.2 placed significant paradoxical pressure on the Monitoring Officer. Attention was drawn to paragraph 6.3, that referred to reporting back when appropriate or suitable. This wording was questioned in the context of transparency in local government and public authorities in general. It was noted that there was a feeling amongst the public that authorities reported on everything and claimed transparency, except for the matters that the public wished to know about. Concern was expressed that increasing the number of documents could give the impression that something was being done, but it could also cause more uncertainty and give the impression of a desire to be transparent, instead of ensuring true transparency.

In response, it was emphasised that the policy had been presented sincerely to create a procedure for raising concerns. It was noted that a logical system had been included, which offered a way to raise concerns and noted how they should be dealt with in a range of circumstances. It was confirmed that the policy would be expected to be implemented sincerely and appropriately. However, it was acknowledged that there were wider questions regarding how the Council dealt with matters beyond the scope of this type of policy. It was emphasised that the aim of the policy was to create a clear path for members to raise concerns that they considered to be serious, and to specify how those concerns should be dealt with. It was noted that the policy filled a gap in terms of how such concerns were raised and treated.  It was explained that the policy also made it clear that other paths were available, and that was the most that such a policy could achieve.

It was added that the policy already stated, should there be a conflict of interest or any suspicion about the propriety of the Monitoring Officer, the Chief Executive would act as the alternative route.

It was noted that it was sad that such a policy was required, but it was acknowledged that it was needed under the current circumstances. The policy was described as logical and a matter of common sense. It was noted that the policy would not necessarily change the way that members behaved or were treated, but many of the positive elements in it were welcomed. It was suggested that the only people who could oppose such a policy were the ones who engaged in misconduct as they would not want other people to raise concerns about them.

It was emphasised that confidentiality was an extremely important element of the policy. It was noted that this could be a weakness within the Code of Conduct arrangements, because the same level of confidentiality did not apply when submitting a complaint to the Ombudsman, where it would be a requirement for the complainant to provide their name. The opinion was expressed that the policy gave better protection to members than the Code of Conduct in some circumstances. The policy in its entirety was welcomed.

It was noted that the policy was necessary and it would open the door for members to follow different ways to raise concerns. It was acknowledged that many comments had been made during the discussion, and minor amendments could be made to the policy in response to them.

RESOLVED that the Committee declares support for the policy, asking the Monitoring Officer to make changes in accordance with his response to members' comments.