By Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist 21 September 2020
Summary: The UK does not investigate and act upon whistleblowers’ concerns as a matter of policy. This is the central failure at the heart of UK whistleblowing governance. The only question that really matters is ‘When will this be put right?’. The organisation Protect, which raises funds on the purported basis that it champions whistleblowers, is failing in its mission by not meaningfully challenging this critical failure. Moreover, it has made a misleading public claim that its whistleblowing Bill will ensure the investigation of whistleblowers’ concerns, when it does NOT. Protect intends to brief parliament shortly. It cannot be allowed to mislead or to undermine real attempts at law reform. The CEO of Protect has been asked to account for the organisation’s behaviour.
Protect the “leading experts” and a factual inaccuracy
The UK does not investigate and act upon whistleblowers’ concerns as a matter of policy.
The unsuspecting majority would surely be amazed and horrified by this.
The UK introduced sham whistleblowing law over twenty years ago which formalised the policy of cover up, whilst deftly making it look as if something had been done. This law, the Public Interest Disclosure Act (PIDA) was criticised very early on by the Bristol Heart public inquiry, but the government admitted that it did nothing. See BEIS FOI response.
The organisation Protect (formerly known as Public Concern at Work) was chief midwife to this useless legislation.
It has spent the last two decades embedding itself into the establishment machinery, sitting on the national Employment Tribunal user group and cornering the market in public sector contracts for training, consultancy services and advice lines. It is reluctant to be fully transparent about its customers, but always quick to self-promote and tout itself as the “leading” whistleblowing charity. Its humble strapline is ” Whistleblowing Charity – The Leading Experts”.
Commensurate with this pattern of behaviour, Protect has frequently flattered power, including by supporting the government’s deeply flawed and frankly dangerous Freedom to Speak Up project. It got contracts off the back of the initiative and its head of legal went to work at the NHS National Guardian’s Office.
Protect helped tinker with PIDA in 2013 when the Act was superficially reviewed. The government-friendly organisation made no move to redress the yawning failure to ensure that whistleblowers’ concerns are investigated and acted upon. Indeed, in 2012 Protect (then Public Concern at Work) arrogantly claimed in a submission to Transparency International that: “The UK’s Public Interest Disclosure Act, 1998 offers strong and comprehensive protection for workplace whistleblowing.”
The net result of the 2013 government review exercise was more window dressing.
In the last two years, Protect surfed a wave of grassroots campaigning by whistleblowers for real reform of the law. It has tried to hijack and undermine attempts at real reform by offering a Bill that STILL fails to ensure investigation of whistleblowers’ concerns, ignoring everything that whistleblowers have said.
Protect’s Bill is yet more tinkering with existing whistleblowing law.
The Bill strangely does not compel employers to investigate whistleblowers’ concerns. It only leaves the door open for a new regulator to introduce a duty in the regulatory small print.
Protect’s Bill gives Prescribed Persons (authorities legally responsible for receiving whistleblower disclosures under current law) a new duty to investigate whistleblowers’ concerns “as appropriate”:
“follow up on disclosures by taking the necessary measures and investigate, as appropriate, the subject-matter of the concerns. Where the prescribed person is not competent to investigate, they shall inform the person making the protected disclosure of their intention to pass the concern to the appropriate body.” [my emphasis]
UK regulators are Prescribed Persons but they have so far resisted investigation of whistleblowers’ concerns. . Will they exploit the “as appropriate” escape clause in Protect’s Bill to continue their failure?
Protect’s Bill creates a new Whistleblowing Commission but only provides for investigation by a proposed Whistleblowing Commission of how whistleblowers’ concerns are handled, and NOT of the concerns themselves:
“(3) The Whistleblowing Commissioner shall have the following functions: a) to act as an investigator of alleged maladministration or a failure to investigate a protected disclosure either by an employer or by a prescribed person”
Thus by sleight of hand, Protect’s Bill gives no ultimate means of investigating whistleblowers’ concerns where employers and regulators fail to do so, as currently happens all the time.
Of concern, Protect set out to spin about its Bill in a blog of 27 August 2020 which compared three Bills in play at present: its own Bill and two Bills going through parliament proposed respectively by Dr Philippa Whitford MP and by Baroness Susan Kramer. The latter is co-Chair of the suspect whistleblowing APPG which is a in essence a shop window set up on behalf of bounty hunters. Protect’s blog took some unjustified swipes, such as claiming that Dr Philippa Whitford’s important bid to introduce criminal sanctions for reprisal and cover up is ill advised. Perhaps because Protect knows criminalisation is one of the most powerful measures against undesirable behaviours – cf. seatbelt and drink driving law.
In its blog, Protect also bizarrely and misleadingly claimed that its proposed Whistleblowing Commission would investigate whistleblowers’ concerns:
“A Whistleblowing Commissioner – a new independent body to investigate a concern, or unfavourable treatment of the whistleblower, set standards and administer penalties.”
Was it because Protect knew that this is the heart of the matter, and that its Bill would not be acceptable to most people if shown for what it really is?
I have written to the CEO of Protect to seek clarification of Protect’s position on ensuring the investigation of whistleblowers’ concerns. The correspondence is provided in the appendix. Protect should retract its major factual inaccuracy. Alternatively, Protect can always listen to whistleblowers and amend its Bill to ensure that its Commission has direct investigative powers, like the forty year old US Office of Special Counsel which has a duty to protect federal whistleblowers.
Will Protect finally step up or will it continue as enabler in chief of the powerful and of corporate interests?
Protect grandiosely announced in its blog that it would be “briefing” parliament in the run up to the second reading of Dr Philippa Whitford’s Bill on 25 September 2020.
Does this mean Protect will spam MPs with more misleading claims about its Bill?
If you have not yet done so, please support this petition to reform UK whistleblowing law so that the proper handling of whistleblowers’ concerns is given centre stage, and not swept under the carpet with legislative trickery:
Correspondence to Protect
From: minh alexander <REDACTED>
Subject: Protect’s blog – accuracy
Date: 18 September 2020 at 12:56:24 BST
To: Elizabeth Gardiner <REDACTED>
I noticed that in Protect’s blog of 27 August 2020 “Unpacked: The 3 bids to transform whistleblowing law PIDA” in which Protect gives its view of the three whistleblowing Bills in play, that Protect stated its proposed Whistleblowing Commission would investigate whistleblowers’ concerns:
“What are the stand out asks of each Bill?
All the Bills are united in that they want to see PIDA reviewed but vary in what they call for. The ‘headlines’ for each are as follows
• Wider protection of more people e.g. Non-executive Directors (NEDs), volunteers, self-employed workers and job applicants
• A duty on employers to prevent victimisation
• A Whistleblowing Commissioner – a new independent body to investigate a concern, or unfavourable treatment of the whistleblower, set standards and administer penalties.”
Aa far as I can see, this is an inaccurate representation of Protect’s Bill. The Bill only proposes that its Whistleblowing Commission should investigate the HANDLING of concerns:
“(3) The Whistleblowing Commissioner shall have the following functions:
a) to act as an investigator of alleged maladministration or a failure to investigate a protected disclosure either by an employer or by a prescribed person
b) to set standards about protected disclosures expected of prescribed persons and employers and issue guidance of such standards
c) to improve public awareness and education of individual’s rights regarding protected disclosures
d) to administer civil penalties where they judge appropriate against employer or prescribed persons for breaches of function (a) or (b) above.”
The majority of whistleblowers, whose prime focus is the public interest, consider that PIDA’s central failing is the fact it ignores their disclosures and thus allows them to be covered up.
Obviously it would be very disappointing if this central fault remains in our whistleblowing legislation.
I’d be grateful if you could clarify whether the claim in Protect’s blog of 27 August 2020 that Protect’s proposed Commission will investigate concerns means that Protect will amend its draft Bill to give the proposed Commission powers to investigate whistleblowers’ concerns per se, or is it Protect’s intention still to restrict the role of the proposed Commission to just examining the process of how whistleblowers’ concerns are handled?
Dr Minh Alexander