Gagging orders old and new

The Minister giveth, and the Minister taketh away. Last week health secretary Jeremy Hunt ‘banned‘ gagging clauses in NHS contracts – even though they’d already been banned in 1999.

A week later his equivalent in the Ministry of Justice Chris Grayling was issuing a rather less generous directive, gagging probation officers from making any comments “in criticism or designed to undermine the justice secretary’s policy or actions”.

And in the police force Operation Elveden ‘crossed a Rubicon‘ as it expanded its scope to include police officers who had leaked information without payment – in other words, speaking to a journalist. (Outside of the operation itself, officers who have spoken to journalists were reported to have found themselves subject to disciplinary investigation, and two suspended.)

Tomorrow I chair a panel on whistleblowing, social media and accountability at an event on reporting the new health system. The last year has seen a raft of guidance on using social media in the NHS, including documents from NHS Employers and from the Royal College of General Practitioners to name just two. These are welcome – but I am sceptical they will have any more impact than that 1999 law.

More broadly, I am concerned about the ability to have an open public debate when sources feel they cannot express any opinion that is ‘off-message’, and journalists cannot protect their sources.

Doubtless a lack of trust in journalists is a factor, but also the desire for control exercised by PR departments and spin doctors documented by Heather Brooke. I know of one NHS trust, for example, which emailed all employees banning them from commenting publicly on a hospital docusoap.

PR is one thing, but many public sector employees are feeling co-opted into a media management campaign they neither support nor believe to be in the best interests of public health, justice, safety, or service.

The NHS is just the most visible example of how public institutions can confuse their own interest with the public interest. Disciplinary policies can set this out particularly barely. This one from United Lincolnshire Hospitals gives examples of “gross misconduct” that include:

“using social networking sites or similar, where employees in their own time using personal computer equipment can be identified as NHS employees and make comments relating to the Trust or the wider NHS which bring the Trust into disrepute.”

You hear the same conflation of institutional interest with pubic interest in statements from the Ministry of Justice:

“If you associate yourself with London Probation Trust through the publication of details about your role as an employee, or Board member, you must not make or endorse any postings or tweet that may bring LPT, the secretary of state for justice or officials acting on his behalf into disrepute.”

Even retweeting such sentiments from others would, apparently, be taken as “incitement or approval” and lead to possible disciplinary action.

Defenders argue that “There are channels for people to express their views”. Presumably a quiet corner of a blacked-out room. The experiences of health workers and whistleblowers are not promising in this regard.

We are living through the first flushes of a new form of public life where the newfound ability to distribute information is tempered by the growing awareness that anything we say (or the connections we make even in private) may be used against us.

As institutions seek to control their employees’ social expression, journalists will have to work harder to establish trust, to protect sources, and establish private channels of communication. A 1999 West Wing episode saw it coming:

A guest post on dealing with whistleblowers written by a Staffordshire whistleblower is here on Help Me Investigate.

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