Letter to Dame Margaret Hodge, Whistleblowing law, lobbyists and protecting the public interest

By Dr Minh Alexander retired consultant psychiatrist 25 April 2022

Tomorrow, parliament will briefly debate under the ten minute rule a new whistleblowing Bill proposed by Mary Robinson MP,  Chair of the Whistleblowing All Party Parliamentary Group – an association of MPs that has no formal status. Some media outlets have reported that the Bill has support from John Penrose MP the “Prime Minister’s Anti-Corruption Champion”, who is married to Dido Harding former Chair of NHS Improvement.

There are few details publicly available about the law.

I have today written to Margaret Hodge and some other senior parliamentarians, who have taken an interest in whistleblowing matters, about concerns that the public interest should be properly safeguarded in any process of law reform, and not hijacked by private interests.

The correspondence follows:

BY EMAIL

Dame Margaret Hodge MP

House of Lords [NB This should state House of Commons]

25 April 2022

Dear Dame Margaret,

Discouragement of financial incentives for whistleblowing in the UK and profiteering from whistleblowing

I write to you in acknowledgment of your longstanding support of whistleblowing and work on whistleblowing as former Chair of Public Accounts Committee and more recent interventions, and to ask for your help in ensuring that future reforms are guided along a steady path of public interest. This is with respect to your continuing interest in much needed reform of UK whistleblowing law.

There has unfortunately been steady pressure in recent years for a breakthrough from the US legal market into the UK of the bounty hunting model, most applicable to the financial sector, for recovery of enormous sums and commensurate rewards for reporters. This is a billion dollar industry for litigators.

The US bounty hunting model serves the State’s narrow financial needs for recovery of large sums lost to fraud but it does not promote a healthy whistleblowing culture or justice. It does not reliably protect most whistleblowers and leaves many genuine whistleblowers in the cold. It also puts the good name of whistleblowers and whistleblowing in jeopardy, which adds to the difficulties that whistleblowers already face with credibility.

Of huge importance, the US bounty hunting model does not concern itself with whistleblowing that is about protecting the person, if there is no money to recover. Thus it neglects swathes of important whistleblowing such as that in health and social care.

The UK Whistleblowing APPG originally proposed an Office of the Whistleblower such as that in the US which recovers money for the State using the bounty hunting model. The APPG’s model had the added feature that this Office would effectively act as a broker for approved private law firms and other entities – passing on business to them:

“…form and maintain a panel of accredited legal firms and advisory bodies to advise and support whistleblowers”

I am very uneasy about this, given that the Whistleblowing APPG was established with the involvement of and funding from a major US bounty hunting law firm from the outset. This is in the context of the longstanding general concerns about APPGs serving as lobby groups for private interests and hostile State interference.

Moreover, the Whistleblowing APPG via its twitter account has tweeted about this US bounty hunting law firm and its lawyers.

A litigation heavy model is also wasteful for the public purse and traumatic for whistleblowers, because it implies prolongation of conflict.

A much leaner and more just model, with a better public interest ethos is that operated by the US Office of Special Counsel for federal whistleblowers. This Office has powers to direct non-financial redress such as restoration of lost career progression and expunging of unfair disciplinary records. This is much more in line with what most whistleblowers want and need – nimble, proactive protection to get back to their lives rather than retrospective compensation after everything lies in smoking ruins, whilst lawyers profit the most.

There are moreover concerns about WhistleblowersUK the secretariat of the Whistleblowing APPG, which have been raised a number of times with parliament. I copy below in the appendix links to some of the evidence that has been submitted to APPG members. This includes a thorough due diligence review by well known corporate whistleblower Wendy Addison, which raised concern about WhistleblowersUK’s direct role in supporting the bogus Westminster paedophile ring whistleblower Carl Beech.

Some of the other evidence that has been submitted is more sensitive and not suitable for sharing in the public domain. You may be aware that Norman Lamb resigned as APPG Vice Chair because he was unable to get reassurances from the CEO of WhistleblowersUK to questions that I raised with the APPG. He also received other evidence of concern.

Please note this WhistlebowersUK document, from a whistleblower who contacted the organisation – it shows that WhistleblowersUK asks whistleblowers for a fee of £100/hour for services and 5% of settlements and awards.

Please also note this ET judgment which revealed a bill by WhistleblowersUK for services charged at £150 per hour for sorting “documents into chronological order” in a whistleblower case. This claim was withdrawn after the ET Judge queried the status of the organisation under regulations for claims management.

I note current press reports that the Whistleblowing APPG’s latest Bill proposes compensation for loss. I can find almost no published details of the relevant Bill and await its presentation in parliament on 26 April. However, I see from WhistleblowersUK’s website that the organisation hopes that the Office of the Whistleblower will reward whistleblowers financially in “recognition”,  with payments in addition to any award by Tribunals:

“These actions that benefit society should be encouraged and recognised by way of financial compensation, and other forms of recognition, separate from that awarded by the tribunals. The amount can be determined by the Office of the Whistleblower.”

WhistleblowersUK penned a flyer in March 2022 about “compensating” whistleblowers  which was a response to John Penrose MP discouraging financial incentives for UK whistleblowers. This WhistleblowersUK flyer in fact promoted the US reward system and it claimed “almost every whistleblower becomes dependent on compensation because of the catastrophic impact on their lives and those around them”. The point here is that well designed whistleblowing law should prevent catastrophic harm. It is only weak whistleblowing law that results in distraction from whistleblowers’ public interest disclosures and ends up with a secondary quagmire of employment dispute and a legal circus.

I note the press reports that the Whistleblowing APPG is proposing criminal penalties – which are welcome –  but also fines of up to £18 million against organisations for whistleblowing breaches. I would be concerned if such fines are applied to the public sector because of the impact on public services. I would also be concerned if such monies are ultimately transferred from the public purse to private law firms or other private entities via the Office of the Whistleblower.

If any law maximises conflict, disruption and litigation and if that benefits middlemen the most, it will hardly serve either the public interest or whistleblowers.

There should be no inappropriate closeness between any putative whistleblowing regulator and private law firms or other private entities, nor conflicts of interest in the establishment of any new whistleblowing regulator. The creation of a new whistleblowing regulator should not be a Trojan horse for bounty hunting nor in effect construct a front door for the private whistleblowing litigation and compliance industry.

There should be no end effect of targeting resources on financial recovery and any lucrative bounties which that may net for some parties, at the expense of protecting the health and safety of the public.

A dysfunctional whistleblowing regulator would be the very worst of all worlds for the public and for whistleblowers. It would compound the serious deterioration we have seen in UK governance, not relieve it.

Lastly, may I refer to you the principles of the Public Interest Protection Bill originally laid in parliament by Dr Philippa Whitford.

Importantly, this gives primacy to the system response to whistleblowers’ concerns and therefore the public interest.

It also seeks as a principle to minimise both harmful employment consequences and related litigation, and so to avoid waste.

Dr Whitford’s Bill ensured that a whistleblowing regulator should be fully independent of government. This is crucial. I emphasise it because WhistleblowersUK at one point proposed that the Office of the Whistleblowers should be located in the Home Office, one of the worst Departments for suppression:

I believe WhistleblowersUK has now deleted this post about the Home Office.

Dr Whitford’s Bill also contained a principle of active review by parliament to ensure that any whistleblowing regulator does not stray or go stale, as can easily happen, and has happened in other jurisdictions.

I ask you and other parliamentarians to safeguard these public interest principles in any endeavour to reshape UK whistleblowing law.

I hope you can help.

With best wishes,

Dr Minh Alexander

Retired consultant psychiatrist and whistleblower

Cc Dr Philippa Whitford MP

     John Penrose MP Prime Minister’s Anti-Corruption Champion

     Lord Hendy QC

     Lord Sikka

     Lord Morse

     Meg Hillier Chair PAC

     Whistleblowing APPG Vice Chairs and member Lisa Cameron, Rosie Cooper, Rebecca 

     Long Bailey

Correspondence and evidence submitted to parliament about WhistleblowersUK has included:

UPDATE

Ahead of the debate on the new Bill, a member of the whistleblowing APPG Kevin Hollinrake Tory MP has pushed in parliament on 25 April 2022 for financial rewards:

He was also quoted in a recent article which pressed for financial rewards:

“The problem is this touches the wider perception of whistleblowing, and whether it’s worth coming forward,” Hollinrake said…..Campaigners are pointing to this broader push, arguing that the U.K. also needs to bring more monetary incentives to the mix as it sets to overhaul its approach to economic crime…”

UPDATE

Mary Robinson briefly read her new Bill into Parliament on 26 April. It remains unpublished. But from the Hansard record of her speech, it is clear that the intention is that the proposed Office of the Whistleblower will NOT be independent. It will report to the Government. This will be far worse than useless. It will be seriously harmful and set up grievous and corrupt conflict of interest in all the cases where whistleblowers raise concerns about government failures, directly or indirectly.

“It [the Office of the Whistleblower] will set standards and report back to the Government” [my emphasis]

I wrote on 28 April 2022 to Mary Robinson to ask for a copy of the Bill has it had remained unpublished despite the drip feed of selective accounts to the press.

Wendy Addison fellow whistleblower has on the same day pointed out an email of 22 April 2022 from the CEO of WhistleblowersUK, the APPG’s secretariat, which claimed that the Bill would be uploaded as soon as Mary Robinson had given her speech in parliament on 26 April:

WhistleblowersUK have organised a webinar on the Bill on 29 April 2022, the tickets for which cost £10. Perhaps the expectation is that one must pay for information that would normally be freely available as a matter of democracy.

RELATED ITEMS

This is a matter relevant to the current row about Sajid Javid’s controversial decision to override bereaved families’ wishes and to appoint a former NHS manager to chair a review into maternity failings at Nottingham. This is a post about governance failings at her former NHS trust:

Devon Partnership NHS Trust ordered to pay £10,613.59 for disability discrimination against a peer support worker

These posts relate to ongoing failures of NHS whistleblowing governance and the difficulties with addressing the problems:

The problem with Protect’s call for yet another independent review of whistleblowing in the NHS

Portsmouth Hospitals University NHS Trust sacked Dr Jasna Macanovic consultant nephrologist for whistleblowing to the General Medical Council

One thought on “Letter to Dame Margaret Hodge, Whistleblowing law, lobbyists and protecting the public interest

  1. Thank you so much for writing and sharing this important email.
    It seems to me that it’s always regrettable when delicate matters, particularly those revolving around courageous yet vulnerable people, are monetised. The money tends to be prioritised instead of the issue – however vital that issue is and however fragile the victims.
    I look forward to following the proceedings..

    Like

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