Charities and groups contracted to deliver the government’s new Work and Health Programme have been told they must not be critical of the work and pensions secretary, Esther McVey.
A clause in the contract for those delivering the programme stipulates that signed-up charities must “pay the utmost regard to the standing and reputation” of McVey and the Department for Work and Pensions (DWP). However, such contracts that prevent charities from speaking out do not align with government claims of “transparency”.
Turning Point, the RNIB, the Royal Association for Deaf People, and the Shaw Trust are among charities that have agreed to act as providers of services under the programme – which focuses on supporting disabled people and other disadvantaged groups into work in England and Wales. It does not operate in Scotland.
There are currently at least 22 organisations – covering contracts worth £1.8 billion – that have been required to sign the clauses as part of their involvement with Department for Work and Pensions programmes.
The existence of an extraordinary clause was revealed through a freedom of information (FoI) request by campaigning website the Disability News Service (DNS). You can read the report on the disclosure in full here.
DNS says the clause states that the contractor “shall pay the utmost regard to the standing and reputation” of DWP and ensure it does nothing to bring it “into disrepute, damages the reputation of the Contracting Body or harms the confidence of the public in the Contracting Body”.
The contract defines the “Contracting Body” as the work and pensions secretary – Esther McVey, who was criticised and heckled last week in the Scottish Parliament as she attempted to make a defence for Universal Credit and the hated rape clause.
All of the disability charities contacted by DNS have insisted that the clause – which DWP has been using since 2015 – will have no impact on their willingness to criticise McVey or the Department.
Shaw Trust said the “publicity, media and official enquiries” clause had been present “in previous DWP contracts” and “does not and has not impinged on our independence as a charity”.
A DWP spokeswoman said: “The department did not introduce this clause specifically for the Work and Health Programme contract.
“It has been used in DWP employment category contracts since 2015.
“The contract is the framework which governs the relationship with DWP and its contractors so that both parties understand how to interact with each other.
“The clause is intended to protect the best interests of both the department and the stakeholders we work with, and it does not stop individuals working for any of our contractors from acting as whistle-blowers under the provisions of the Public Interest “Disclosure Act 1998, nor does it prevent contractors from raising any concerns directly with the department.”
So how do charities raise concerns about the impact of draconian Conservative policies, without being “critical of the work and pensions secretary, Esther McVey,” or get around the problem of “paying the utmost regard to the standing and reputation” of the DWP, exactly?
The UK government has “systematically and gravely” violated the human rights of disabled persons, a fact that was verified by the United Nations (UN) investigation, the findings of which were published in 2016. The UN report documented multiple violations of disabled people’s rights, including the way that they are politically portrayed as being lazy and a “burden on taxpayers”, the harm to health caused by unfair assessments, the cuts to legal aid and curtailed access to justice, the imposition of the bedroom tax and the ending of the Independent Living Fund, in addition to the cuts made to the welfare safety net.
The government have dismissed these findings in their entirety. Yet a truly democratic, accountable and transparent government would have monitored and assessed the impact of their punitive policies, and launched an inquiry to explore the correlation between their policies and practices and the distress, harm, premature deaths and suicides that have been well documented and evidenced over the past few years.
This authoritarian gagging clause emphasises a toxic oppressive culture, and an intention of the government to silence its critics. However, it is unenforceable insofar as it purports to preclude a worker or group from making a protected disclosure, under the Public Interest Disclosure Act 1998. Whistleblowing legislation has been amended since the Public Interest Disclosure Act 1998, by the Enterprise and Regulatory Reform Act 2013 and the Small Business, Enterprise and Employment Act 2015.
The 2013 Act, among other things, introduced a public interest test. In order to benefit from whistleblower protection a disclosure must “in the reasonable belief of the worker making the disclosure” be “made in the public interest”.
The 2015 Act created a power for the Secretary of State to impose reporting requirements on prescribed persons (bodies to which whistleblowers may disclose information). It is claimed that these requirements would cover matters such as the number of whistleblowing disclosures received and investigated.
In an era of outsourcing and public sector commissioning, most contracts issued by NHS trusts, local authorities and central government departments, or by their prime providers, now include such restrictions on providers speaking freely or releasing any information without permission.
The Panel on the Independence of the Voluntary Sector included in its 2014 report a specific request to the government that such clauses be outlawed. Nick Hurd, then the Minister for Civil Society, said in a priceless Orwellian response that it was the government’s ambition for the UK to be “the most transparent and accountable government in the world”; but he said it had a duty “to ensure all publicly released information is accurate and validated, and contracts with providers are designed to reflect this”.
That’s a government denial clause, by the way.
Asheem Singh, director of public policy at the charity chief executives body Acevo, said in 2014 that gagging clauses are unacceptable and charities and social enterprises should challenge them.
“There is no doubt that many confidentiality clauses in government contracts are designed to protect not the public but the department or the ministers concerned,” he says. “We need an open, transparent system where data is freely shared. We have reams of data protection legislation that is designed to protect the vulnerable. Contractual confidentiality clauses that aim to prevent ‘bringing a department into disrepute’, as one example puts it, merely protect officialdom.”
However, the right to whistleblow if individuals believe there has been serious wrongdoing remains. If it’s in the public interest, there is a right to disclose and be protected from any consequences, and that is the law.
You can read about the laws and protections regarding whistleblowing and gagging clauses here.
Update 9 October 2018
The media has finally decided this issue is newsworthy.
At least 22 organisations – covering contracts worth £1.8 billion – have been required to sign the clauses as part of their involvement with programmes getting the unemployed into work, The Times has reported.
Officials at the Department for Work and Pensions (DWP) denied they were “gagging clauses” intended to prevent criticism of ministers or their policies, insisting they were just “standard procedure”. However a spokesman confirmed that the contracts did include references to ensure both parties “understand how to interact with each other and protect their best interests”. The signatories to contracts must undertake to “pay the utmost regard to the standing and reputation” of the Work and Pensions Secretary, the newspaper reported, adding that they must “not do anything which may attract adverse publicity” to her, damage her reputation, or harm the public’s confidence in her.
The disclosure comes after McVey confirmed that some people would be worse off as a result of the introduction of Universal Credit, saying the Government had taken some “tough decisions”. However, this was contradicted by Downing Street
Former prime minister John Major called for a rethink of the planned roll-out of UC to more than two million claimants of existing benefits, warning the Government risked a poll tax-style backlash if the policy was seen as unfair.
The Department for Work and Pensions has announced that from April 2019 Citizens Advice (CA) and Citizens Advice Scotland (CAS) will receive a total of £51 million to help people with universal credit claims. This move in itself shows how unfit for purpose the Universal Credit (UC) process is, as people need support in simply claiming it.
CA and CAS have been given a role in supporting claimants through every step of making a UC claim and ‘managing their money when it arrives.’ The main focus will be on budgeting advice and digital support.
£12 million is being provided to CA and CAS to set up the service by April 2019, with a further £39 million being paid from April onwards.
The government funding has understandably raised concerns about the freddom that CA and CAS will have to campaign in relation to the failings of UC.
Secretary of State for Work and Pensions Esther McVey said:
“This brand new partnership with Citizens Advice will ensure everyone, and in particular the most vulnerable claimants, get the best possible support with their claim that is consistently administered throughout the country.
“Citizens Advice are an independent and trusted organisation, who will support people as we continue the successful rollout of Universal Credit.”
Gillian Guy, Chief Executive of Citizens Advice, said:
“We offer independent and confidential advice to millions of people every year, and have already helped nearly 150,000 people with Universal Credit. We’ve seen first-hand what can happen when people struggle to make a claim and their payments are delayed.
“We welcome the opportunity to provide even more people with the help they need with Universal Credit, and deliver a consistent service through the Citizens Advice network across England and Wales.
“Delivering this service will give us even greater insight into the Universal Credit system. We’ll continue to share our evidence with the government to help make sure Universal Credit works for everyone.”
The problem is that’s what he thinks.
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