‘Regulator’ isn’t a dirty word if you say it right. Watergate, the US Office of Special Counsel and designing models of whistleblowing regulation to reduce political interference

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 17 September 2020

There is an understandable temptation in whistleblowing to abandon hope of constructive reform. However, hard though the road is, the focus needs to be on possible solutions.

UK regulators currently fail whistleblowers but that is not a reason to discount in entirety the regulatory model for whistleblowing. Afterall, someone has to oversee the process.

Regulation can only be as good as the legal regulations and frameworks which govern regulators’ operation and powers and most importantly, which protect them from political interference. And of course, this is all dependent on any given government’s respect for the rule of law. Our current political climate is hardly fertile ground, but paradoxically whistleblowers are needed more than ever.

The UK public is very badly served by current whistleblowing law. No UK regulator is currently compelled by law to act upon whistleblowers’ disclosures. Some regulators do not even fully understand their responsibilities under the law, because of poor government leadership.

Indeed, ineffective regulation can in fact serve governments’ political interests.

Political interference is the major threat to the effective functioning of any official whistleblowing body.

The whistleblowing All Party Parliamentary Group (a special interest group of MPs without any official status) made a bizarre suggestion in June 2019 that the Home Office or Ministry of Justice could be in control of a new whistleblowing agency, or as the APPG put it, an “Office for the Whistleblower”. It is hard to think of two worse current government departments for abuses of power, racism, extremism and secrecy.

Others have suggested that the police, an organ of the Home Office, should control UK whistleblowing governance. This is equally of concern given the long and notorious history of UK political policing against even peaceful and legitimate dissent:

Spycops: A brief History of political policing

To give an illustrative example of political policing from the above study,  the Home Secretary & Metropolitan Police Commissioner met press barons to suggest the press avert their eyes from police violence against Vietnam war protestors, who were instead cast as the guilty parties by police briefing:

The terrible Hillsborough scandal, with decades of cruel official lies and silenced police whistleblowers is another example of the serious unfitness of the Home Office and its police instruments to be controllers of whistleblowing governance:

‘The patronising disposition of unaccountable power’ A report to ensure the pain and suffering of the Hillsborough families is not repeated

Institutions which control, conceal and deceive as a political habit are not whistleblowers’ friends.

I will briefly describe below a long established regulatory precedent in the US: The Office of Special Counsel, which has a range of powers that can potentially be adopted and built upon when designing systems of whistleblower protection.

The US Office of Special Counsel

The US Office of Special Counsel (OSC) is in essence a forty year old central whistleblowing agency, established in 1979 after the Watergate scandal broke and after related legislation was passed to reform the US civil service. OSC has responsibility to protect public sector (federal) whistleblowers, offer a channel of reporting for federal whistleblowers raising concerns about wrongdoing and to help remedy corruption and abuses of power in public office. It has investigative, prosecutorial and regulatory powers and also has powers to direct other federal agencies to investigate and provide evidence of corrective action.

These are some FAQs about the OSC:

 US Office of Special Counsel: Know Your Rights

OSC’s strong points are its range of powers and its jurisdiction over a wide range of federal bodies. It is in principle independent but one of its key weaknesses is that the Special Counsel is appointed by the executive and can be removed by the executive, albeit this is tempered by Senate oversight of appointment, and legal limitations on the range of reasons under which a President can remove a Special Counsel.

The UK government’s recent interference with even the Criminal Cases Review Commission by abusing its appointment powers, shows what a threat any government leverage can be.

OSC has an imperfect history, and for a number of years was paralysed by the appointment of a poor Special Counsel, who was mired in scandal and allegations of cover ups. But that will always be the story of whistleblowing – all schemes to protect whistleblowers are at high risk of being subverted and captured. The important thing is to be fully prepared for this and to continue working on and adapting to weaknesses and threats.

Nevertheless, in principle, the OSC has some of the most powers ascribed to date to any whistleblowing agency.

The main laws governing the establishment and operation of the OSC are:

• The 1939 Hatch Act, sought to maintain the neutrality of public servants and to prohibit their participation in any “pernicious political activities” by misusing public office or resources.

• The Civil Service Reform Act of 1978, passed after the President himself was caught redhanded in serious corruption. The Act aimed to:

“provide the people of the United States with a competent, honest, and productive Federal work force reflective of the Nation’s diversity, and to improve the quality of public service, Federal personnel management should be implemented consistent with merit system principles and free from prohibited personnel practices”

“the authority and power of the Special Counsel should be increased so that the Special Counsel may investigate allegations involving prohibited personnel practices (PPP) and reprisals against Federal employees for the lawful disclosure of certain information and may file complaints against agency officials and employees who engage in such conduct;”

• The Whistleblower Protection Act 1989.

This strengthened the OSC’s role and made its prime duty the protection of federal employees, especially whistleblowers, from prohibited personnel practices

• Whistleblower Protection Enhancement Act of 2007

• The Uniformed Services Employment & Reemployment Rights Act 

The 1978 Civil Service Reform Act provided for appointment of the Special Counsel only by consent and confirmation of the Senate, with limitations on removal by the President:

“The Special Counsel of the Merit Systems Protection Board shall be appointed by the President from attorneys, by and with the advice and consent of the Senate, for a term of 5 years. A Special Counsel appointed to fill a vacancy occurring before the end of a term of office of his predecessor serves for the remainder of the term. The Special Counsel may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office.

Under Section 1206 of the 1978 Act, the Special Counsel was given wide powers to investigate any allegations of prohibited personnel practices against any “employee or former employee or applicant for employment’, including reprisal against federal workers making public interest disclosures, to compel the heads of federal agencies to locally investigate any such allegations, to require agency heads to report to OSC in writing certain specified findings of local investigations within 60 days, including evidence of corrective action:

“”(E) a description of any corrective action taken or planned as a result of the investigation, such as –, “(i) changes in agency rules, regulations, or practices; “(ii) the restoration of any aggrieved employee; “(iii) disciplinary action against any employee; and “(iv) referral to the Attorney General of any evidence of a criminal violation.”

Barring some circumstances of state security and secrets, the Act required the majority of such investigation reports to be submitted to Congress and to the President, as well as shared with complainants.

The Act gave OSC the power to determine if such investigation reports were complete and made “reasonable” findings, and to take further action if not.

The OSC has powers to petition for stays of harmful prohibited personnel actions and to seek extensions:

“(a)(1) The Special Counsel may request any member of the Merit Systems Protection Board to order a stay of any personnel action for 15 calendar days if the Special Counsel determines that there are reasonable grounds to believe that the personnel action was taken, or is to be taken, as a result of a prohibited personnel practice.”

OSC can ensure redress for harmed whistleblowers, importantly, including of a non-financial nature.

OSC also has powers to investigate directly and to require confirmation of corrective action by agency heads,

“(B) In any case in which the Special Counsel determines that there are reasonable grounds to believe that a prohibited personnel practice has occurred, exists, or is to be taken, the Special Counsel may proceed with any investigation or proceeding instituted under this section notwithstanding that the alleged violation has been reported to the Attorney General. “(3) If, in connection with any investigation under this section, the Special Counsel determines that there is reasonable cause to believe that any violation of any law, rule, or regulation has occurred which is not referred to in paragraph (1) or (2) of this subsection, the violation shall be reported to the head of the agency involved. The Special Counsel shall require, within 30 days of the receipt of the report by the agency, a certification by the head of the agency which states –, “(A) that the head of the agency has personally reviewed the report; and “(B) what action has been, or is to be, taken, and when the action will be completed.

OSC was given regulatory powers:

“”(k) The Special Counsel may prescribe regulations relating to the receipt and investigation of matters under the jurisdiction of the Special Counsel. Such regulations shall be published in the Federal Register.”

OSC may refer cases to the Merit Systems Protection Board MSPB – the adjudicating body on employee claims of prohibited personnel practices in federal agencies, which can discipline those guilty of violations, including by removal, reduction in grade, debarment from federal employment for up to five years, suspension, or reprimand.

OSC was given powers to litigate, to prosecute cases before the MSPB and intervene in proceedings of the MSPB:

“(i) The Special Counsel may as a matter of right intervene or otherwise participate in any proceeding before the Merit Systems Protection Board, except that the Special Counsel shall comply with the rules of the Board and the Special Counsel shall not have any right of judicial review in connection with such intervention.

(j)(1) The Special Counsel may appoint the legal, administrative, and support personnel necessary to perform the functions of the Special Counsel.”

OSC has also filed third party or amicus briefs (“friend of the court”) in other courts, all the way up to the Supreme Court.

How does this help?

There will never be perfection in whistleblower protection.

No one could claim that the US is an exemplar of whistleblower protection.

There are many US whistleblowers who would say that the systems in place have failed them.

But the OSC can also fairly claim some wins, which is more than can be said for current UK regulators and the toothless NHS National Guardian’s Office. In fiscal year 2017, OSC helped 323 federal employees prove their cases of mistreatment, of which three quarters were about whistleblower reprisal. More cases should probably have been proven, and the OSC model could be improved.

The vital process of learning and refining needs to continue in the design of whistleblowing agencies and systems, whilst maintaining healthy scepticism, robustly testing any progress and keeping in reserve unofficial channels whenever official channels prove totally unfit.

In the UK, we currently have almost zero protections and useless infrastructure. We need effective law to compel regulatory action in response to whistleblowing and correction of harm and risk. We also need law to establish a specialist regulator that has the expertise and powers to ensure compliance by other regulators with good practice standards of whistleblowing governance.

This is not an impossible aim nor should it be discounted based on the experience of poor regulation to date. It is a question of political will and of carefully and painstakingly understanding how failures have occurred, learning from other jurisdictions and addressing the gaps.

What can be done?

A formal review of the law is essential to trigger the necessary public discourse to find solutions and take all views into consideration.

The government will not agree to a formal law review without pressure.

In order to help apply this pressure, please sign the petition to reform UK whistleblowing law and establish a properly independent whistleblowing agency:

Petition: Replace weak UK whistleblowing law, and protect whistleblowers and the public

This is more background information about a new Public Interest Disclosures (Protection) Bill by Dr Philippa Whitford MP and supporting MPs:

A new UK whistleblowing Bill and a petition to the UK government to strengthen protection

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