NI Water: Did whistle-blowing lead to a switch in contract?

I’ve uploaded this whistleblower correspondence. What passes as acceptable practice in DRD at the most senior level, does not measure up to its own policy standards. Here we have a complaint to the Permanent Secretary from the owner of Contracting Out, Sue Holmes. The original complaint is not included, but you can see from the paper trail that despite an explicit request from the complainent that the correspondence not be shared with anyone but the addressee.

Within three hours on a Sunday afternoon, the correspondence has been shared with the very person who is being complained about such that in the follow paper trail he, Laurence MacKenzie suggests alternative contractors for the work that Holmes was then undertaking for DRD. That Contractor, Deloitte, did indeed take on CO’s work on the Steria contract racking up a bill several times the size of CO’s for an action that was eventually pulled at a considerable but as yet unknown cost to the public purse.

(Note that there is no question over Ms Holmes’ bona fides, either here or anywhere else in this story. Indeed, Slugger understands that she was carrying out work for no less than the NI Audit Office right up until Midnight before the PAC meeting on July 1st).

It’s an extraordinary conversation, but it is not the first time that DRD have by one means or another disclosed the identity of a whistleblower to the person or organisation being complained about. In one complaint about the running of the Rathlin Island Ferry contract the department, in contravention of its own whistleblower policy, clearly identified the person making the complaint in public documents.

Finally, can I say that I had originally planned to make this correspondence available on Monday. That I hadn’t owes much to my own family situation at the moment which means I am and will continue to spend much time away from  Slugger. Can I appeal to people to be moderate and reasonable in their remarks.

If you wish to complain about any individual comments, could you direct them to my colleague Paul Evans at admin@sluggerotoole.com as I may have difficulty in picking up mail over the next few days.

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  • William Markfelt

    And yet, and yet, we’ve only got one suspension, one that will probably result in a slap on the wrist and return to duties following an internal investigation.

    In a proper democracy, the minister would have resigned. The Perm Sec and his senior staff (Patterson, Fair et al) would have been sacked. The CEO of NIW would have been sacked. The CEO of NICC would have resigned. The NIAO would have been ripped apart and built from the ground up or its senior staff sacked. The NIA would be debating the ‘independence’ of various bodies. And the NIA would have launched an inquiry into various things, the IRT, the historical lack of independence in ‘independent’ probes and so on and so on and so on.

    For all the probing at this, all of the guilty are still in place. The worst that has happened is that Priestly has the best kept lawn in the neighbourhood (I bet it’s north Down).

    Slugger has played an important role but that doesn’t have any real value until heads roll. When some night of the long knives takes place and we wake up to news of resignations, sackings and several cases of criminal proceedings, we might be getting somewhere.

  • William Markfelt

    t’hey ARE accountable to the NI electorate.’

    Are they?

    Aren’t we getting into ‘monkey with a tricolour/Union flag stuck up its bum and the people will follow it all the way to the polling booth’ territory?

    They know they can do a U turn on anything and the people will vote on tribal lines. No one will be voting for the Greens or the Tories or the Socialist Workers Party on anything as mundane as everyday matters of social concern.

  • malairt

    If you follow that logic William, then it means that the DUP and SF would have to move forwards in lock step so as to avoid the pointing fingers of blame. Chances of that happening? Slim, I’d have thought. Let’s see if we can blame England, far better approach.

    Although, given Cameron’s utterances on both NI and Scotland, where the SNP has similar budgetary problems, I seriously doubt he’s going to come to the rescue of places where his votes are nil.

  • William Markfelt

    ‘DUP and SF would have to move forwards in lock step so as to avoid the pointing fingers of blame.’

    They’re moving that way anyway. Some of SF’s savings plans were described by Robinson as having merit worthy of discussion.

    So we’ll get some ‘debate’ in Stormont about how they can fleece the elctorate without it looking like it’s one or the other (or blame the UUP and SDLP’s leadership in Assembly1 for not making the right decisions. How often did Blair and Brown blame the Tories mid-90s administration for cock ups?)

    Pertinent to this story, Murphy introduces water charges, blames the Brits for being cheapskates with the budget, Robinson makes a lot of empty noises and blames D’Hondt or consocionationalism for the system he must work and everyone’s happy. Apart from the electorate. But as they don’t really matter, who cares?

  • William, that part of the country reminds me of the old song: “Toora loo, toora lay, oh it’s six miles from Bangor to Donaghadee. But the treacherous scoundrel, he took us all in”.

    However, PP seems to have done little more than help his friends. We probably have to look for the scoundrels elsewhere.

  • Pigeon Toes

    http://whereismydata.wordpress.com/2008/06/22/data-protection-act-section-55/

    Data Protection Act: Section 55
    June 22, 2008 — 585
    The Data Protection Act 1998 makes it an offence to “knowingly or recklessly” obtain or disclose data. This makes the action of “data theft”, to be a criminal act.

    The Criminal Justice and Immigration Act 2008 makes two changes to this section of the DPA. The first increases the penalties for this offence, the second adds a defence for reasons of journalism.

    Two recent cases of data theft are both relating to the police, they are available here and here.

    Technically, the losses of data by the goverment, e.g. the 25 million records lost by the HMRC, could actually fall under this act as the loss was “reckless”. This is espeically true following the Poynter report into the incident which states that the data loss was entirely unavoidable.

    55 Unlawful obtaining etc. of personal data
    (1) A person must not knowingly or recklessly, without the consent of the data controller—

    (a) obtain or disclose personal data or the information contained in personal data, or

    (b) procure the disclosure to another person of the information contained in personal data.

    (2) Subsection (1) does not apply to a person who shows—

    (a) that the obtaining, disclosing or procuring—

    (i) was necessary for the purpose of preventing or detecting crime, or

    (ii) was required or authorised by or under any enactment, by any rule of law or by the order of a court,

    (b) that he acted in the reasonable belief that he had in law the right to obtain or disclose the data or information or, as the case may be, to procure the disclosure of the information to the other person,

    (c) that he acted in the reasonable belief that he would have had the consent of the data controller if the data controller had known of the obtaining, disclosing or procuring and the circumstances of it, or

    (d) that in the particular circumstances the obtaining, disclosing or procuring was justified as being in the public interest.

    (3) A person who contravenes subsection (1) is guilty of an offence.

    (4) A person who sells personal data is guilty of an offence if he has obtained the data in contravention of subsection (1).

    (5) A person who offers to sell personal data is guilty of an offence if—

    (a) he has obtained the data in contravention of subsection (1), or

    (b) he subsequently obtains the data in contravention of that subsection.

    (6) For the purposes of subsection (5), an advertisement indicating that personal data are or may be for sale is an offer to sell the data.

    (7) Section 1(2) does not apply for the purposes of this section; and for the purposes of subsections (4) to (6), “personal data” includes information extracted from personal data.

    (8 ) References in this section to personal data do not include references to personal data which by virtue of section 28 are exempt from this section.

  • William Markfelt

    ‘The Data Protection Act 1998 makes it an offence to “knowingly or recklessly” obtain or disclose data.’

    So that ‘private and confidential’ stuff requested by Sue Holmes that was charmlessly circulated within a couple of hours by and to all and sundry…

    Just what are the penalties for knowingly and recklessly disclosing it?

  • One of the links, PT, leads to the following:

    “Defence Against Data Theft
    June 26, 2008 — 585

    The Criminal Justice and Immigration Act 2008 creates a new defence against data breaches/data theft, which is an offence under Section 55 of the Data Protection Act 1998.

    The law allows for a defence to be put forward by a journalist, or similar, on the grounds that the reasons for disclosing information were in the public interest

    Section 78 CJI: New defence for purposes of journalism and other special purposes

    In section 55(2) of the Data Protection Act 1998 (c. 29) (defences against offence of unlawfully obtaining etc. personal data) after “it,” at the end of paragraph (c) insert—

    “(ca) that he acted—

    (i) for the special purposes,

    (ii) with a view to the publication by any person of any journalistic, literary or artistic material, and

    (iii) in the reasonable belief that in the particular circumstances the obtaining, disclosing or procuring was justified as being in the public interest,”.

  • Pigeon Toes

    http://www.bpcollins.co.uk/org-article-technology-and-ip-new-penalties-for-serious-data-protection-breaches-438018189-a308.php

    “New powers, designed to prevent serious breaches of personal data security, came into force on 6 April 2010. The Information Commissioner’s Office (ICO) will now be able to order organisations to pay up to £500,000 as a penalty for serious breaches of one or more of the eight principles of the Data Protection Act 1998 (DPA)….In addition to these new powers, the Ministry of Justice has carried out a consultation on exercising the power to impose custodial sentences on those found guilty of knowingly or recklessly obtaining, disclosing, selling or procuring the disclosure of personal data without the consent of the data controller. These are all offences under Section 55 of the DPA, relating to selling or offering to sell information that has been unlawfully obtained.

    However, the proposals make it clear that the Government does not wish to prevent legitimate investigative journalism and there is therefore a proposal to commence, simultaneously, a new defence under section 55 relating to the purposes of journalism, art and literature. ”

    It just happened, that I was researching this in connection with a few other issues today.

  • McCavity

    “The comment that CO’s work was “shallow” is cheap, entirely unnecessary and completely incorrect.”

    Completely agree.

    Mackenzie was familiar with CO’s reports and findings from when he arrived in NIW in July 2009 onwards – if he had any concerns these would have been raised then not 9 months later. In his evidence to the IRT in Jan 2010 and the PAC in July 2010 no such comments were repeated. In fact, on the 30 June 2010 even the Belfast Telegraph, in it’s favourite role as the mouth piece of government, NIW was quoted as saying that ” there has been no criticism by NIW of the services provided by Contracting Out or the fees incurred”.

    Once again the stories of Mr Mackenzie do not add up. If two parties arrive at different conclusions it is usual to bring the parties together to investigate the differences not chose the one that is giving you the answer you prefer (or have engineered)?

    However, the question must be with all of the investigation team removed including the Commercial Director was all the evidence which the investigation team had based their findings on given to Deloittes or only that information which would illicit the right response. Was that why they only needed 2 weeks to review a years findings and evidence and be so sure of their answer?

    A couple of other interesting questions

    If Mackenzie believed Deloittes position to be correct in February why did he continue the court case on into September ? and
    If CO’s findings were a concern how come they were the basis for the sucessful injunction in June 2009.

  • McCavity

    Might Holmes letter have contained much more serious allegations about how things were being handled, rather than a bit of cheesed-off-ness about her invoices?

    Thats pretty certain.

    Not being paid your invoices would not be a whistle blower issue particularly to a company like CO there are other routes to get that sorted.

    For a firm whose reputation depends on confidentiality the reasons would have had to be about wrong doing or something else that was very serious indeed certainly serious enough it seems to have the email wires glowing on a Sunday night!! It certainly must have made reference to the Steria findings for the email remark to make sense.

    One thing you can be sure that like everything else surrounding Steria it will be buried deep in confidentiality.

    There is still no clear explanation how Mr Wickens could be both a party to the complainant and the defendant in the Steria case at the same time.

  • Pigeon Toes

    Malairt,

    “NIW still hadn’t paid the £200k in December 09 when MacKenzie indirectly insisted that no payment could be made until CO provided timesheets for the lump sum. You can’t provide timesheets for a lump sum. It’s a lump sum. To make up timesheets would have been fraud.”

  • Pigeon Toes

    Malairt,

    “NIW still hadn’t paid the £200k in December 09 when MacKenzie indirectly insisted that no payment could be made until CO provided timesheets for the lump sum. You can’t provide timesheets for a lump sum. It’s a lump sum. To make up timesheets would have been fraud.”

    Perhaps Ms Holmes was a “sensitive soul” who didn’t want her own professional integrity questioned.

    In my opinion there is a inability in DRD, to grasp the concept of either “professional” or “integrity”.

  • William Markfelt

    ‘You can’t provide timesheets for a lump sum.’

    You are still keeping them, though. I would guess that CO’s staff were still keeping timesheets so that their work could be monitored.

    When the work was complete, the invoice would have been raised, as a lump sum, and CO would have been able to analyse if they’d made a profit or loss from the timesheets. Co will know exactly what their level of profit is. If it’s 70%, god luck to them, and if they’ve lost 30%, hard luck. It’s business.

    So CO will certainly have timesheets for the work. But what’s McKenzie’s plan? To ‘forensically’ go through the timesheets and re-negotiate a fixed price tender? Examine the timesheets and say ‘you’ve made 20% profit and I think 10% is more than fair’? It rather looks that way. It’s not good business or proper business. It’s the actions of someone who doesn’t understand business.

  • Pink Lady

    And same from me also. Thoughts are with you.

  • Pigeon Toes

    I received this from the NIAO today under FOI

    …”Regarding the passing of personal information by a departmental official to a third party, please record the C&AG’s comment to the effect that a similar incident involving the passing of emails onto someone else would be a disciplinary offence in NIAO

    C&AG also advised that Paul Priestly should obtain legal advice on the ‘reasonableness’ of the actions he is proposing with regard to those who have an interest in the outcome of the investigation. Perhaps you could make an appropriate reference to this in the text….”

  • Pigeon Toes

    And now I’m kind of wondering why some civil servants were not suspended two years ago, whilst they were being investigated.

    I believe it was because Mr Priestly had determined that his staff were entitled to a presumption of innocence.

    So, the fact that he’s been suspended may speak volumes, or, that um the outcome of *that* particular investigation was pre-determined.

  • gottasay

    Pigeon Toes

    What was the date of that note to Priestley?

  • Pigeon Toes

    Gottasay,
    This is all back in 2008.

  • But all very relevant 😀

  • Happy to share the correspondence, if helpfu

  • gottasay

    Pigeon Toes

    It sounds all very relevant, and confirms a pattern of behaviour by Mr Priestley.Is there any evidence he actually took legal advice?

  • Nope ;-D