Policing - complaints handling, investigations and misconduct issues: independent review

Chapter Ten - Whistleblowing by police officers and support staff

10.1 The term "whistleblowing" relates to a worker who reports a certain type of wrong‑doing where it is in the public interest for that wrong‑doing to be disclosed. Reports must be dealt with confidentially by the body which receives them. Workers can choose to report openly or can do so anonymously. Anonymity may make it more difficult for the individual to receive legal protections, for them to receive support from the employer or for the investigator to obtain further information. The worker is protected by law if they report on any of the following actions:

• a criminal offence
• someone's health and safety is in danger
• risk or actual damage to the environment
• a miscarriage of justice
• the organisation is breaking the law
• they believe someone is covering up wrong‑doing

10.2 In my preliminary report I said that the whistleblowing processes would be examined in detail and further evidence taken from relevant stakeholders on how these processes work in practice and that further consideration would be given to this matter. I invited views on whistleblowing generally, and specifically on the question of whether a policing body, such as the Police Investigations and Review Commissioner (PIRC), should have prescribed status as the IOPC does south of the border.

10.3 The Employment Rights Act 1996^[91] (as amended by the Public Interest Disclosure Act 1998^[92]) provides that a whistleblower can raise their concerns outside their organisation or employer to a "prescribed person" such as a suitable regulator or inspector. Employment law is a matter that is reserved to the Westminster Parliament. The UK Government publishes online the full list^[93] of prescribed persons.

10.4 In their evidence to the Review, Police Scotland stated that it is good practice to create an open, transparent and safe working environment where staff feel able to speak up. Police Scotland published its first whistleblowing guidance in June 2017, using a soft-launch approach with no awareness training provided to officers or staff at that time. Police Scotland confirmed in their early written submission to the Review that, "The number of matters considered under the auspices of whistleblowing is extremely low".

10.5 In March 2019 Police Scotland published up-to-date guidance in order to allow officers and staff to report concerns, or whistleblow. In February 2019 Protect (Whistleblowing Advice) Ltd^[94] were awarded a contract to provide an independent advice line on behalf of Police Scotland for whistleblowing matters. Officers have access to specific whistleblowing report forms. Police Scotland's publication of new whistleblowing guidance in 2019, was accompanied by a communication programme and an e-learning package. In March 2020, a mandatory whistleblowing intranet module was introduced for officers and staff with an associated communication plan. The Assistant Chief Constable for Professionalism and Assurance is the Police Scotland Whistleblowing Champion.

10.6 Enhancing protection for whistleblowers within policing could be achieved by prescribing in legislation another Scottish third‑party reporting body or person. In England and Wales the Independent Office for Police Conduct (IOPC) is such a prescribed body, but in Scotland the PIRC is not. In her evidence to this Review the previous Commissioner suggested that, "to facilitate independent investigations of appropriate whistleblowing concerns, legislative amendment could be made to provide the PIRC with 'prescribed person' status and legislative powers to independently investigate these matters".

Evidence to the Scottish Parliament Justice Committee on whistleblowing

10.7 Whistleblowing within policing was considered and discussed by the Scottish Parliament Justice Committee during its Post-Legislative Scrutiny of the Police and Fire Reform (Scotland) Act 2012^[95]. In written evidence to the Committee in 2018, UNISON Police Staff Scotland (UPSS), the largest trade union branch for police staff in Scotland said:

"It is our view that challenges and criticism of the service have been stifled and there are limited pathways to pursue complaints and concerns about the operation of the service for police staff."^[96]

"… positive changes to whistleblowing guidance which offer greater protections to those raising concerns have been very slow to materialise. We also favour the expansion of independent scrutiny bodies to hear employee complaints concerning their service as we do not think there is currently sufficient balance or impartiality."^[97]

10.8 In their oral evidence to the Committee on 6 November 2018 the Scottish Human Rights Commission (SHRC) also touched on the importance of having an external mechanism. Diego Quiroz, Policy Officer at SHRC told the Committee that "When there is no confidence in the internal mechanisms, the whistleblower can go directly to external parties"^[98]. However, as I pointed out in my preliminary report, there is no external policing body prescribed for this purpose in Scotland.

Police Scotland whistleblowing guidance and arrangements

10.9 Police Scotland produced an initial whistleblowing guidance document in June 2017, which set out Police Scotland's responsibilities and response to whistleblowing and provided details of the reporting mechanism for submitting concerns. That guidance was updated in 2019 and is available to all officers and staff on the Police Scotland intranet. In general terms, a whistleblower should have no self‑interest in the issue being raised and the document highlights that personal grievances and complaints are not usually covered by whistleblowing and can be addressed through other processes.

10.10 Police Scotland expressed its aim as to provide an environment where employees feel confident to raise concerns when they reasonably believe that wrongdoing is being or has been done. Its general aim is to promote a healthy workplace culture built on openness and accountability. The extracts below are taken from the current guidance:

• The principles apply to all police officers, special constables, police staff, contractors and agency staff.
• Whistleblowing is viewed by Police Scotland as an important source of information that may highlight serious risks to the effectiveness and efficiency of the organisation, with individuals often being best placed to identify deficiencies and problems at the earliest opportunity.
• All staff have a positive obligation to question the conduct of colleagues that they believe falls below expected standards and, if necessary, challenge, report or take action against such conduct.
• Police Scotland will support and protect all whistleblowers. It is recognised that individuals with a protected characteristic may in some circumstances need extra safeguards or support to protect them.
• There may be times where the whistleblower feels unable to raise their concern internally within the organisation. In such circumstances it is possible to raise a concern with another body.
• The individual raising the concern will, where appropriate be allocated a single point of contact. This person shall maintain contact with the whistleblower and provide support and updates as appropriate.
• The Scottish Police Authority shall also be provided with a quarterly update report. Where issues of confidentiality allow, and in the interests of transparency, this report will be made available to staff associations and trade union representatives.
• If an individual is unsure whether or how to raise a concern, or they want confidential advice at any stage, they may contact their trade union, staff association or the Employee Assistance Programme. An independent whistleblowing advice line is also available, providing confidential, expert advice.
• In addition individuals may wish to contact ACAS or Citizens Advice Scotland who offer specific advice relating to whistleblowing.

10.11 Police Scotland told the Review that the improvement in knowledge and awareness within PSD has led to stronger support for divisions, enhanced information‑sharing, accountability and consistency in the management of whistleblowing matters across the organisation.

10.12 In February 2017 Her Majesty's Inspectorate of Constabulary in Scotland (HMICS) conducted an Assurance Review of Police Scotland's Counter Corruption Unit. As a consequence, the National Gateway Assessment Unit (NGAU) was established by Police Scotland to serve as a single point of entry for all internal referrals or concerns raised involving police officers or members of police staff and to ensure consistent assessment. NGAU is situated within PSD.

10.13 Matters referred to the NGAU can include issues related to conduct, performance, discipline, integrity and behaviour. Referrals can be submitted through a variety of reporting mechanisms and officers or members of police staff can elect to remain anonymous when raising a concern. Part of the assessment is whether any referral should be dealt with as whistleblowing. The criteria for that assessment are set out in the legislation and are that the worker making the disclosure (the whistleblower) holds a reasonable belief that: they are acting in the public interest; and that the disclosure tends to show past, present or likely future wrongdoing falling into one or more of the six categories listed in paragraph 10.1 above.

10.14 NGAU staff have received training by Protect which has enabled early identification of potential whistleblowing matters within the organisation, which are flagged to senior management timeously for assessment/consideration.

10.15 A whistleblowing e-learning training package was developed to provide better awareness to all employees and managers. Professional Standards Department and Protect co-hosted a 'What is Whistleblowing?' CPD (continuing professional development) event at the Scottish Police College where all divisions and staff associations were represented.

Background information on Protect

10.16 In 2019 a contract was awarded by Police Scotland to Protect (Whistleblowing Advice) Ltd which provides an independent advice line delivering confidential, expert advice to officers, staff and managers. During the Review I met with senior staff from Protect to gain an insight into its activities generally and its role in relation to Police Scotland's whistleblowing arrangements specifically.

10.17 Protect is a UK whistleblowing charity which aims to stop harm by encouraging safe whistleblowing. It operates a free, confidential advice line that supports more than 3,000 whistleblowers across the UK each year. It works with organisations supporting, advising and training teams on improving their 'speak up' arrangements. 'Speak up' is a broad term which includes whistleblowing. Protect also conducts research, informs public policy and campaigns for better legal protection of whistleblowers.

10.18 Protect's core business consists of advice to contracted clients and also a general service available to the UK public through their website or by telephone. Protect employ lawyers who are able to provide legal advice on individuals' rights. Protect could communicate on the behalf of a caller but they discourage it.

10.19 The contract provides support that was customised for Police Scotland and includes self-help kits, training and a unique Freephone number that officers and staff in Police Scotland can call for advice.

Evidence from the Police Investigations and Review Commissioner

10.20 The view of the previous Police Investigations and Review Commissioner was clearly articulated in her submission in response to my call for evidence in which she made the following points:

"Several concerns have been publicly expressed by some within Police Scotland that they do not feel confident to raise matters of concern and whistleblow on colleagues, senior staff, the Professional Standards Department and the Anti‑Corruption Unit, for fear of reprisals."

"Currently, the Police Service of Scotland has sole responsibility for investigating concerns raised by whistleblowers within its organisation."

"The problem therefore remains that there is no independent scrutiny of matters raised by whistleblowers within Police Scotland."

10.21 The current Commissioner has suggested to the Review an alternative approach:

"By their nature, many issues raised under whistleblowing relate to working procedures, policies and conditions and fall more naturally to be dealt with by Police Scotland and the SPA. Rather than being a prescribed organisation, providing a statutory duty/right for the PIRC to audit all whistleblowing reports made to Police Scotland would enable PIRC to have an oversight of referrals under the whistleblowing policy and provide public assurance that they were being appropriately handled."

10.22 That alternative approach has merit and I agree that the PIRC should have an audit role, however, that would not be sufficient to address the fundamental need to give potential whistleblowers the confidence that they can report wrong‑doing to an external third party.

10.23 As one Police Scotland whistleblower put it to the Review:

"They're trying to get me to help them with their cases, with their problems, but they're frightened to even speak.

"What you need to do is, I believe you need to absolutely ensure, set up a body, an independent whistleblowing group for Scotland, but it absolutely has to be staffed with the best people with the highest integrity who will literally dot the i's and cross the t's and will not be rubbing shoulders with the people that they are supposed to investigate."

The Scottish Police Authority

10.24 The original whistleblowing procedures were approved by the Scottish Police Authority (SPA) in May 2017 and covered both Police Scotland and the SPA. This policy was reviewed and a new whistleblowing policy^[99], specifically for the SPA, was approved by SPA in March 2020. The SPA policy applies to all SPA Corporate and Forensic Services employees as well as secondees, contractors and agency staff working within SPA Corporate and Forensic Services. Police Scotland is working alongside the SPA to ensure consistency across both organisations.

10.25 The SPA's aim is to facilitate an organisational culture where people feel comfortable raising concerns. It seeks to work alongside, rather than duplicate, current day‑to‑day channels for raising concerns and its whistleblowing policy was developed based on an assessment of good practice, previous internal audit recommendations and lessons learned from previous cases.

10.26 In November 2019 one SPA member was appointed as the SPA Whistleblowing Champion on behalf of the SPA Board with responsibility to oversee the independence and effectiveness of the whistleblowing policy.

Whistleblowing in policing in England and Wales

10.27 In England and Wales the Independent Office for Police Conduct (IOPC) is a prescribed person in relation to matters relating to the conduct of a person serving with the police. The Policing and Crime Act 2017 Act^[100] contains provisions which have not yet been commenced which relate to the IOPC's powers to investigate concerns raised through whistleblowing.

10.28 In March 2016, the College of Policing in England and Wales published national whistleblowing guidance entitled Reporting Concerns^[101]. This sets out the standards of support whistleblowers should expect to receive and best practice, including the right to receive feedback and to be consulted on certain issues, and the right to an independent review. That guidance is due for review pending commencement of changes to the legislation in England and Wales.

Conclusion in respect of whistleblowing

10.29 Whistleblowing should always have a positive purpose. It is one of the building blocks of an open culture which recognises that employees have a better knowledge of what is going on in their organisation than managers do and encourages them to speak up when they see wrong‑doing.

10.30 It is good practice for employers to ensure that what merits protection in the public interest is carefully assessed and that those whistleblowing concerns are treated separately from individual grievances. I commend Police Scotland for their action to raise awareness, provide training and give clarity around what constitutes whistleblowing, and for their initiative in making available the expert advice of Protect.

10.31 Having weighed up the evidence, I believe that the absence of a prescribed independent third-party person to whom whistleblowers in policing can report wrongdoing is a significant gap that should be filled. Ideally concerns should be raised internally in the first instance so that the organisation can act quickly on those concerns but there may be many valid reasons why an individual would want to be able to report wrong‑doing to an external body.

10.32 When I met with Protect, they made the point to me that independence and accountability should be designed into the system. The internal arrangements in place within Police Scotland appear to be in line with best practice apart from the inability for officers and staff to disclose information outwith the service to an appropriate prescribed person. In my view the PIRC is the organisation that is best placed to fulfil that crucial role because of its existing expertise, its understanding of policing and its ability, potentially, to make connections with other investigations. In view of the sensitivity of whistleblowing, one of the PIRC Deputy Commissioners that I have recommended in the PIRC chapter at page 205 should be the nominated recipient of whistleblowing reports.

Recommendations in relation to whistleblowing

10.33 Recommendation: The Police Investigations and Review Commissioner should be added to the list of prescribed persons in The Public Interest Disclosure (Prescribed Persons) Order 2014^[102] in order that people working in Police Scotland and in the Scottish Police Authority are able to raise their concerns with an independent third-party police oversight organisation.

10.34 Recommendation: Whistleblowing can be an indicator of what is happening within an organisation and therefore Police Scotland should review and audit its whistleblowing arrangements and data on a regular basis.