Argyll and Bute Council Constitution - Part 5 - Public Interest Disclosure (Whistleblowing) Policy

1. Introduction

1. Argyll and Bute Council is committed to the highest standards of openness, probity and accountability.  These high standards are coupled with a positive approach to enabling employees and others who become aware of wrongdoing, improper conduct or other failures of a substantive nature to bring attention to their concerns.  The Council’s Public Interest Disclosure Policy is, therefore, designed –
   1. To set out a process for the investigation of certain disclosures of information which are made in the public interest;
   2. To provide protection from reprisal or victimisation for individuals who make such disclosures in good faith; and
   3. Thus to provide a genuine recourse for legitimate representations without encouraging a climate in which they become malicious, trivial or routine.
       
2. There are existing procedures in place which enable employees of the Council to raise a grievance relating to their own employment. The Public Interest Disclosure Policy is designed to deal with matters which fall outwith the scope of the Grievance or Disciplinary Procedures.

2. Scope

1. In the context of the work of Argyll and Bute Council, a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the person making the disclosure, tends to show one or more of the following –
   1. (a) That a criminal offence has been committed, is being committed or is likely to be committed,
   2. (b) That a person has failed, is failing or is likely to fail to comply with any legal obligation to which he/she is subject,
   3. (c) That any person has failed, is failing or is likely to fail to comply with any obligation as to their conduct or otherwise imposed on that person by –
      1. The Argyll and Bute Council Protocol governing relations between Members and Officers.
      2. The Council’s Standing Orders, Contract Standing Orders, Procurement Manual or Financial and Security Regulations.
      3. The Argyll and Bute Code of Conduct for Officers.
   4. (d)That the health or safety of any individual has been, is being or is likely to be endangered.
   5. (e) That the Council has committed, is committing or is likely to commit to a course of action which is unlawful.
   6. (f)That the Council has taken, is taking, or likely to take a course of action, or there has been a corresponding failure, which is likely to give rise to a finding of maladministration on the part of the Council.
   7. (g) That information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be deliberately concealed.
      
      A qualifying disclosure is made in accordance with this policy if the person –
   8. (a) Makes the disclosure in good faith
   9. (b) Reasonably believes that the information disclosed, and any allegation contained in it, are substantially true
   10. (c) Does not make the disclosure for purposes of personal gain
   11. (d) In all the circumstances of the matter, believes it is reasonable for the person to make the disclosure.
        
2. Any disclosure alleging a breach of the Councillors Code of Conduct issued under the Ethical Standards & Public Life Etc (Scotland) Act 2000 in respect of a Councillor should be referred  by the person making the disclosure to 
   Mr Bill Thomson, 
   Commissioner for Ethical Standards in Public Life, 
   Thistle House, 
   91 Clifton Terrace, 
   Edinburgh 
   EH12 5HE – 
   Email: investigations@standardscommision.org.uk 

3 Safeguards

1. The Council recognises that taking a decision to report a concern of the type covered by this policy can be a difficult one, not least because of the fear of reprisal.  The Council makes it clear that it will not tolerate any reprisals under any circumstances and will take action to protect a person who makes a qualifying disclosure.
    
2. If a disclosure is made in good faith but is not confirmed by subsequent investigation, no action will be taken against the person making the disclosure.  The Council will, however, protect itself, its Members and Employees against malicious allegations and will take appropriate action against any person who makes such an allegation. The Council will also take such reasonable steps which may be open to it to minimise the impact on any of its Members or Employees of an allegation which is either malicious or unfounded.
    
3. Nothing in this Policy means that if a person is already the subject of any action or procedure against them (including in the case of employees, disciplinary procedures) that those procedures will necessarily be halted as a result of a disclosure made under this policy.

4. Confidentiality 

1. In a culture of openness, and against the Council’s stated policy that it will protect a person who may make a disclosure in good faith and in the public interest, and to assist any investigative process, it is clearly desirable that the person who makes a disclosure should be prepared to do so on an attributable basis. The Council will, however, take reasonable steps, but cannot guarantee, to protect the identity of a person who makes a disclosure and does not wish his or her name to be disclosed, subject to the following factors –
   1. (a) The seriousness and nature of the issues raised
   2. (b) The likelihood of confirming any allegation from other attributable sources
   3. (c) The need for evidential statements as part of any investigation
   4. (d) The credibility of the allegation, and, in all the circumstances, the need to allow a person against whom an allegation is made to test the veracity and substance of it
   5. (e) The likelihood, in all the circumstances, of unwarranted reprisals being directed against a person who makes a disclosure.
       
2. The Officer conducting the investigation will, however, take all necessary steps to ensure that the name of a person who makes a disclosure is not disclosed to others within the Council except, strictly, on a need to know basis in order to further the due completion of the investigation and the Council’s response to it. (See paragraph 5 below).
    
3. The Council will not disclose in any public document the name of any person who makes a disclosure, nor will the Council disclose that person’s name to any third party outside the Council except –
   1. Where an offence may have been committed and there is considered to be an obligation to report that to the Police or Procurator Fiscal, or to co-operate with enquiries instituted by the Police or the Fiscal.
   2. Otherwise, where there would be any failure on the part of the Council to comply with any legal obligation on them.
       
4. Allegations expressed anonymously will not normally be considered.  In exercising any discretion to consider any anonymous allegation, the factors which will be taken into account are –
   1. The seriousness and nature of the issues raised
   2. The credibility of the concerns
   3. The likelihood of confirming the allegations from other attributable sources

5. Disclosures and their investigation 

1. As noted earlier, this Policy is designed to provide recourse for legitimate representations to be made about wrongdoing, improper conduct or other failure of a substantive nature.  Any person making a disclosure in terms of this Policy should do so to the Council’s Monitoring Officer, the Executive Director with responsibility for Legal and Regulatory Support Services.  The Monitoring Officer will decide –
   1. (a) Whether the matter is one which should be dealt with under the Council’s Grievance or Disciplinary Procedures, and, if so, will refer the matter to the appropriate Officer.
   2. (b) Whether the matter is one which should be dealt with under any Complaints or other procedure of the Council, and, if so, will refer the matter to the appropriate Officer.
   3. (c) Whether the matter is one which should be investigated in terms of this Policy and, if so, will conduct an investigation in terms of this Policy.
   4. (d) In the absence of an investigation in terms of this Policy, what other action, if any, should be taken.
       
2. Notwithstanding and without prejudice to the statutory obligations placed on the Monitoring Officer, for the purposes of this Policy the function of the Monitoring Officer is to investigate a disclosure of information, and any allegation contained in it, relating to any matter contained in paragraph 2.1 of this Policy.
    
3. The purpose of an investigation under this Policy will be to determine which of the following findings is the case –
   1. (a) That there is no evidence of any failure to comply with any of the matters set out in paragraph 2.1 above,
   2. (b) That no action needs to be taken in respect of the matters which are the subject of the investigation
   3. (c) That any matter which is the subject of investigation can be remedied by compliance with any recommendations which are made in the report of the investigation
   4. (d) That there is evidence of a failure on the part of a Councillor in relation to any of the matters referred to in paragraph 2.1 above in which case, with the exception of a matter in respect of which a criminal offence may have been committed, the report of the investigation will be submitted to the Council which will consider what action, if any, should be taken.
   5. (e) That there is evidence of a failure on the part of a person, who is not a Councillor but has been appointed or co-opted to any Committee or Sub-Committee or Short Life Working Group of the Council, in relation to any of the matters referred to in paragraph 2.1 above in which case, with the exception of a matter in respect of which a criminal offence may have been committed, the report of the investigation will be referred to the Audit and Scrutiny Committee which will consider what action, if any, should be taken.
   6. (f) That there is evidence of a failure on the part of an Officer of the Council in relation to any matter referred to in paragraph 2.1 above, in which case the report of the investigation will be referred to the Chief Executive who will determine what action, if any, should be taken.
   7. (g) That there is evidence of a systematic or procedural failure on the part of the Council in relation to any matter referred to in paragraph 2.1 above, in which case the report of the investigation will be referred to the Chief Executive and /or the Council to determine what action, if any, should be taken.
   8. (h) That otherwise the matters which are the subject of the investigation should be referred to the Council’s Audit and Scrutiny Committee.
       
4. For the purpose of conducting an investigation in terms of this Policy, the Monitoring Officer –
   1. (a) May conduct the investigation personally, or may authorise another person to do so;
   2. (b) May obtain information from such persons and in such manner, and make such enquiries, as she/he thinks fit;
   3. (c) May require any Officer or Member to provide such information or explanation as may be necessary for the purpose of conducting the investigation;
   4. (d) Must give any person who is the subject of any allegation which is being investigated the opportunity or opportunities to respond to and comment on any allegation and must, in the course of any interview, allow that person to be accompanied by any other person;
   5. (e) May require any Officer or Member holding or accountable for any document or record (held in any medium) relating to the investigation to give access to such document or record;
   6. (f)  May, to assist the investigation, obtain advice from any person inside or outside the Council who is qualified to give it.
       
5. A copy of any report of any investigation must be given to any Member or Officer of the Council who is the subject of the report before the report is finally disposed of by the Monitoring Officer as set out in paragraph 5.3 above.

6. Decisions and recommendations of audit and scrutiny committee          

1. The Audit and Scrutiny Committee shall decide whether or not there has been a failure on the part of any person who is the subject of a report in terms of Paragraph 5.3(e), with the exception of a matter in respect of which a criminal offence may have been committed until any criminal proceedings have been disposed of.
    
2. Where the Audit and Scrutiny Committee decides that there has been no such failure on the part of any such person it will give notice to that effect to the person concerned.
    
3. Where the Audit and Scrutiny Committee decides that there has been such a failure as is mentioned in Paragraph 6.1 above, the Committee must decide, having regard to the Statutory authority or basis on which that person has been nominated, appointed or co-opted, whether the nature of the failure is such that either
   1. (a) The Council is to advise the person concerned that there has been a failure on his or her part, and specify the details of that failure; or
   2. (b) Submit a report to Council, which report will be considered in public, advising that there has been a failure on the part of such a person concerned, specifying the details of that failure, which report may include a recommendation that any one of the following courses of action should be taken by the Council –
      1. (i) That the person concerned be afforded the opportunity of apologising to the Council in respect of the failure; or
      2. (ii) That the person concerned should be the subject of a resolution of censure expressing the Council’s disappointment that there has been a failure on the part of such a person concerned; or
      3. (iii) That the Council remove the person concerned from any one or more positions to which the person was appointed by the Council or any of its Committees or Sub-Committees, and/or that the person be removed from membership of any one or more Committee, Sub-Committee, or Short Life Working Group of the Council;
      4. (iv) That the Council request the persons nominating or appointing body to remove or withdraw their nomination or appointment and remove that person from any Committee, Sub-Committee, or Short Life Working Group of the Council;
          
4. Before submitting a recommendation in terms of paragraph 6.3(b) to the Council, the Audit and Scrutiny Committee will provide a copy of their report, including any recommendation contained in it, to the person concerned.
    
5. In considering a recommendation in terms of paragraph 6.3(b) the Council will afford an opportunity to the person concerned to make a statement to the Council, and it will not be open to the Council to pass a resolution which would, in respect of the person concerned, be more onerous than the course of action recommended by the Audit and Scrutiny Committee.