By Martin Morton @NitramNotrom, Clare Sardari @SardariClare and Minh Alexander
17 August 2020
The petition link:
In 2018 the twentieth anniversary of the notoriously weak UK whistleblowing law, the Public Interest Disclosure Act 1998 (PIDA), we were invited by Dr Philippa Whitford to produce a concise advisory paper on PIDA’s core weaknesses. This was to inform debate and feed into parliamentary work on this topic. This is the paper that we wrote:
Chiefly, the paper fed into the Westminster Hall debate on 18 July 2018 led by Dr Philippa Whitford MP:
As evident from this transcript of the parliamentary debate, the UK government’s response was tepid.
Indeed, the government had already expressed scepticism about the new proposed EU whistleblowing directive, which was since become law.
Although the EU directive crucially requires the proper handling of whistleblowers’ disclosures, which UK law indefensibly does not, our government absurdly suggested in a memo to the parliamentary European Scrutiny Committee that UK whistleblowing law was already strong.
The new Public Interest Disclosure (Protection) Bill
Two years on, the parliamentary activity that started in 2018 has culminated in the production of a Bill, led by Dr Philippa Whitford and supported by Peter Grant, Alison Thewliss, Andrew Mitchell, Dr Julian Lewis, Kevin Hollinrake and Wera Hobhouse to model potential improvements that could be made in UK whistleblowing law and governance:
The Bill has been developed with input from a variety of parties.
It calls for repeal of PIDA and provides a new freestanding law. It has wider scope and breaks away from the confines of employment law where PIDA is situated, seriously restricting PIDA’s efficacy.
The Bill contains several essential elements of good practice that whistleblowers have been calling for, such as:
- Compelling the proper handling and follow up on whistleblowers’ concerns and the correction of wrongdoing
- Criminal sanctions for individuals for harming whistleblowers or failing to act appropriately upon their disclosures, to provide meaningful deterrence of victimisation and suppression
- Wider definitions of detriment which capture some of the subtler means by which whistleblowers may be persecuted
- An expeditious mechanism for redress of harm to whistleblowers that does not require them to face the risk and trauma of litigation, as is the case under PIDA
- Legal recognition that third parties such as close relatives of a whistleblower can suffer detriment, and should also be entitled to redress
- The Bill establishes a principle of fair compensation for harm and loss but specifically precludes rewards for whistleblowing, to protect credibility in whistleblowing
- The introduction of the concept of ‘moral harassment’ or mobbing, currently recognised under EU law, and an issue that is important in many whistleblowing cases
- A central body to enforce better whistleblowing governance by employers and bodies such as regulators
The Bill is a constructive step forwards and a sound reference point for future debate on UK whistleblowing governance. It represents a better offer than PIDA.
Independence of the proposed whistleblowing body
Our one key reservation is the independence of the proposed central whistleblowing body, which the new Bill terms “the Commission”.
As currently drafted, the Bill states that the body should be independent, but implies that the Commission will be under the purview of a government department and gives the relevant Secretary of State powers to amend the Commission’s regulations.
We have advised against any such government control and maintain our position that guarding the independence of any whistleblowing body is a mission-critical issue.
A great deal of whistleblowing, especially in the public sector, is ultimately whistleblowing about government policy and its effects. Government control over a whistleblowing body sets up instant conflict of interest.
As per our original 2018 paper, we not only believe that a whistleblowing body should be constituted to be independent, but that specific procedural safeguards are required to ensure that is the case. In our view new legislation should include safeguards of regular parliamentary scrutiny and intermittent review and external audit.
Whistleblowing bodies are easily captured, and much vigilance is needed to prevent this.
The upheaval of the COVID-19 crisis has revealed the ugliness of what can happen when a government’s political interests collide with the public interest. Government economy with the truth and disinformation are currently reported and evident on a daily basis. Public servants are whistleblowing much more frequently to the media. Trust in conventional channels of reporting has clearly been shaken, with good reason.
The political interest of any government of the day will always be a threat to transparency and to whistleblowers.
Current events, such as the government’s attack on the public’s right to challenge it through judicial review, suggest that this threat is likely to get worse.
An important recent High Court judgment against the Secretary of State for Justice included a startling finding that the government interfered with the Criminal Cases Review Commission. It did so by abusing its appointment powers, in not renewing the tenure of a Commission Non Executive Director who had been oppositional to the government.
The High Court concluded “This was political interference”:
|The Queen (on the application of Gary Warner) v Secretary of State for Justice
“63. A submission dated 19 July 2018 was prepared by the ALB CoE for the Minister (Edward Argar, again). The name of the author is redacted on the document. But the document was cleared by Ms Wedge and was copied to her when sent. This was the submission seeking a final decision on the proposed recruitment of up to six new commissioners on 3-year fee-paid terms. The issue of extension of X’s term was addressed in that same submission. The Chair’s recommendation of a temporary extension of X’s tenure and the mixed views on his performance were noted. The submission continued (emphasis added):
“Given the concerns about performance (and a lack of any more recent information about whether they have been addressed) and the fact that we are aiming to conclude the new campaign by early December in any event, we suggested that you do not agree to either a re-appointment or short extension but instead invite [X] to apply for the forthcoming campaign …
We are also aware that [X] has been amongst the cadre of Commissioners seeking to resist further changes to governance/working arrangements. We consider that refusing the re-appointment request will provide the new Chair of the Commission with the opportunity to assess X’s skills and strengths afresh against the job description and criteria for the new campaign as well as against a fresh applicant field. Opening the vacancy resulting from the end of [X’s] tenure will also provide an opportunity to seek to improve the diversity of the commissioners, something which the CCRC is committed to doing.”
64. This is a troubling passage. At the hearing, Mr Pobjoy, counsel for the SoS, accepted that the highlighted passage was, in his words, “not appropriate” for inclusion in the ministerial submission. Ms Wedge’s evidence skirts around this passage, so it was not until the hearing that the SoS acknowledged the problem in any way. Any fair minded and informed observer reading this submission would conclude that the Minister was being invited to reject the Chair’s recommendation that X’s tenure should be extended, albeit only temporarily, for a number of reasons including because X did not support MoJ’s proposed changes. It was not appropriate for the Minister to be advised in this way, or for the Minister to have regard to the fact that X had previously resisted changes suggested by MoJ when considering his temporary re-appointment. This was political interference. It was inconsistent with the Governance Code.
65. The Minister did not extend X’s tenure, despite the Chair’s recommendation that he should be extended temporarily. Ms Wedge says this was because at the time it was anticipated that the new recruitment campaign would be concluded within a couple of months. This rather misses the point. The Chair had recommended extension pending that recruitment campaign.”
The Law Gazette reported on the government’s scandalous behaviour:
As the backstop against miscarriages of justice, the Criminal Cases Review Commission is an extremely important quasi-judicial body. The High Court’s finding is an indictment of the health of our democracy.
Such abuse could easily apply to a whistleblowing Commission, and it is crucial that no such government leverage can be applied to a body that is tasked with holding the government to account.
Whistleblowers have never been needed more, but the risks that they face are commensurately greater in the current climate and the strains imposed by the pandemic.
We have set up a Westminster petition calling for replacement of PIDA and strengthening of protections for whistleblowers and the public interest and establishment of an independent whistleblowing parliamentary body. We have cited the new Public Interest Disclosure (Protection) Bill as a starting point for debate:
“Replace UK whistleblowing law, and protect whistleblowers and the public
The Government should reform whistleblowing law to: require disclosures be acted upon and whistleblowers protected, with criminal and civil penalties for organisations and individuals failing to do so, establish an independent parliamentary body on whistleblowing, and provide easy access to redress.
We believe the Public Interest Disclosure Act fails to protect whistleblowers, the public and the public purse. It doesn’t compel protection, nor ensure investigation of disclosures or correction of wrongdoing. It doesn’t prevent cover ups, and gives inadequate redress after serious, irreparable harm, and can lead to wasteful, destructive litigation. Only 3% of cases succeed at hearing.
A new whistleblowing Bill by Dr Philippa Whitford MP contains several good practice elements which can inform debate on replacing PIDA.”
We are aware that change will be unlikely in the short term, and recognise the project to reform the law is a work in progress that will need sustained effort. We hope that you will support the petition and help keep the debate going.
This is the link to the petition if you would like to sign it:
The convention is that the government responds to the petition if it attracts 10,000 signatories. If it attracts 100,000 signatories, a debate is commonly held.
Westminster petitions are time limited and open for six months only.
Martin Morton Social Care whistleblower
Clare Sardari NHS whistleblower
Minh Alexander NHS whistleblower
Some other discussion points on the new Public Interest Disclosure (Protection) Bill:
- The Bill implicitly defines a duty to protect whistleblowers in that the protection of whistleblowers is an explicit duty of the Commission which sets whistleblowing standards for others
However, we advise that an explicit, proactive, pre-detriment legal duty by employers and public authorities to protect whistleblowers should be added.
This would be consistent with the preventative principle set out in the Bill to reduce conflict and harm.
- We believe the Bill could be improved with the addition of criminal sanction for not correcting wrongdoing (the Bill currently provides criminal sanction for failure to adequately investigate protected disclosures).
- We suggest that the definition of detriment should include breaching or attempting to breach a whistleblower’s anonymity, and inappropriate gagging (see below).
- Could the Bill’s section on NDAs be strengthened?
We believe that defining and making inappropriate gagging a legally recognised detriment would strengthen protections against whistleblowers being silenced.
We have also recommended that ‘super gags’, confidentiality clauses which hide even the existence of settlement agreements, should be banned.
- What is a just maximum prison sentence with regard to any new whistleblowing law’s criminal provisions?
Should particularly egregious acts and omissions in whistleblowing governance that result in mass harm be subject to longer sentences than 18 months?
Australian corporate whistleblowing legislation provides prison sentences up to two years.
The UK Health and Safety (Offences) Act 2008 provides for prison sentences up to two years.
Gross Negligence Manslaughter has a sentence range of 1-18 years custody and potentially attracts a life sentence, “a blatant disregard for a very high risk of death” contributing to the definition of “high culpability”.
- We advise that there is a mechanism for whistleblowers to access legal remedy as a last resort, in the event that redress via the whistleblowing body fails.
This would mirror US arrangements which allow whistleblowers to litigate if other means of redress are not satisfactory.
- Does the Bill need to be adjusted to ensure that any new whistleblowing body has realistic focus and workload, especially when starting up?
International experience is that too wide a scope initially can reduce effectiveness.
Our concerns in regards to the width of the Bill’s scope relate in part to the Bill’s very wide definition of who is a whistleblower. For example, the list of parties defined as a whistleblower includes:
“(x) an observer or passer-by; or
(y) any other person.”
This echoes proposals by the controversial Whistleblowing APPG to accept anybody as a whistleblower. Such an arrangement would pave the way for deputisation of members of the public under US style bounty hunting laws.
We agree with the wider definition of whistleblowing to include groups particularly relevant to public safety and the public interest, such as patients, their families and foster carers looking after very vulnerable children, who currently may suffer retaliatory economic harm if they speak up but are not employees and thus are not protected by current law.
However, we feel the scope of the law and of any whistleblowing body should not be widened to the point of over burdening the system and affecting effectiveness.
- The Bill is currently drafted to include close relatives only, and current law does not include co-habitees as “close relatives”.
We suggest that the definition of third parties who suffer detriment alongside whistleblowers should at least include co-habitees, if not others.
Emphasising the critical need for any whistleblowing body to be fully independent of the government, the case of a consultant anaesthetist Dr Julian Campbell has raised very serious questions about the NHS National Guardian’s approach to whistleblower confidentiality and her impartiality. She contacted the Freedom To Speak Up Guardian at his employing trust without his consent, causing him great distress because the trust Speak Up Guardian is married to the medical director about whom he had raised concerns: