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When is a whistleblower not a whistleblower?

A considerable row has blown up over the conduct of Somerset County Council, sparked by an article published by the Sunday Times on 8th February. And on the face of it there is much to be concerned about. The Sunday Times article alleges that SCC has been basically trying to silence whistleblowers…. “Now the council has hired the law firm Wiggin to investigate who was responsible for bringing the story to light, as part of a complaint into an alleged breach of their code of conduct. Last week Wiggin wrote to The Sunday Times asking it to reveal information about its sourcing for the story. The request was denied.”

We have followed up the story and made our own enquiries, both with Somerset County Council and Tessa Munt, who has been a persistent critic of SCC’s performance on children’s services. As ever with these things it is not quite as simple as it might at first look. To our mind the Sunday Times article has created a rather misleading impression by conflating two very different stories.

A genuine whistleblower

Where the story really began was when a member of SCC staff alerted the council to the fact that they believed there had been improper conduct at one of SCC’s children’s homes. That member of staff was treated as a whistleblower and their identity protected. SCC then carried out an investigation, an investigation that suggested the concerns raised were valid. The council, it seems to me quite properly, brought disciplinary action based on the information the whistleblower provided. They also involved the police and commissioned a safeguarding investigation (from an independent specialist) into those concerns.

An SCC spokesperson told us “We are not a council that takes action against whistle-blowers, we encourage staff or partners to come forward whenever and wherever they have concerns. In this instance, a whistle-blower raised issues that ultimately led directly to the closure of a children’s home – the individual remains anonymous and we are grateful for their intervention. No action has or will be taken against them.

However this is not the whole story. To this point the law firm Wiggin (remember, they of the Sunday Times story) had not been involved and SCC would, I think by most people’s judgement, be seen to have acted appropriately.

What happened next was that senior politicians from the County Council’s Administration and Opposition were given a confidential briefing on the incidents, the investigations and the likely results, including the proposed closure of the children’s home in question. Again this is pretty much standard procedure.

Leaked

Then the story was leaked. SCC believe it was leaked in September, but it was not “run” as such until December. Now I don’t know about you, but I do not consider this leak to be whistleblowing. In my eyes it looks much more like a breach of a duty of care, of a fiduciary duty to treat as confidential a report given under a duty of confidentiality. But then I am no lawyer.

What I do understand is that a complaint was indeed made against three councillors for breaching their duties of confidentiality. SCC have confirmed that “a complaint was made against certain council members claiming a breach of the members’ code of conduct. This complaint was not solely about allegations of a release of confidential information. As we are obliged to, the complaint was investigated initially by SCC staff to establish whether there was any case to answer – this is standard procedure and something the public would expect. As it was found that there was a case to answer, a more formal investigation was carried out. Depending on the circumstances the investigation may be carried out by Council staff or by an independent investigator. In this case it was considered appropriate to use an independent investigator – the law firm Wiggins.”

Surely it is only right that this report should have been kept confidential and by all recipients. Not least to protect the one genuine whistleblower. It would be the duty of the council as a whole to release information to the public and there is no reason to suppose SCC would not have done so once councillors had digested the findings of the investigation. And perhaps to have a proper debate on what action to take and when and in what format to release the information to press and public.

The Wiggin Investigation

So a full investigation was commissioned by SCC and undertaken by lawyers, Wiggin LLP. During the Wiggin investigation it appears that one of the councillors under investigation wished to demonstrate that they had not been the source of the leak. So they suggested to Wiggin that they contact the Sunday Times and confirm that this particular councillor had not provided the information. This Wiggin did, albeit without the knowledge or any explicit instruction from SCC. And this of course is how the Sunday Times managed to get their, let’s say, unique, angle on their story.

Once again SCC are anxious that these two quite separate events should not be conflated and hence misunderstood. “When we receive a complaint about our council members – whoever it comes from – we are obliged to take steps to investigate – the public would expect this of us. As with councils across the country, we have a process that enables complaints against councillors to be considered and that process can include an independent investigation, where considered appropriate – this is what happened in this case.”

The Langport Leveller understands that the Wiggin investigation is not yet complete and as yet there is no date for the final report and conclusion from its work to be published to SCC.  As and when that work is complete we will report back again.

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