Letby murders: Letter to Kemi Badenoch Secretary of State on serious concerns about UK government’s review of whistleblowing law

Dr Minh Alexander retired consultant psychiatrist 4 September 2023

The government has been behaving in a disturbing manner after announcing a review of UK whistleblowing law in March. 

It has been secretive and unaccountable.

The government has also outsourced its review to a private contractor, Grant Thornton, which has been repeatedly sanctioned by the Financial Reporting Council in recent years. This seems  a curious choice of reviewer for such a sensitive governance task.

The UK Financial Reporting Council lists some of its sanctions against Grant Thornton.   The decision notices and related documents about some of the breaches for which the FRC has fined Grant Thornton can be found through these links:   05 November 2021 Sports Direct International plc   10 August 2021 Interserve plc   29 July 2021 Patisserie Holdings plc 26 March 2020 Conviviality Retail plc   05 November 2019 A publicly listed company   09 July 2018 Nichols plc and the University of Salford   29 March 2017 AssetCo plc

These matters been covered in these previous reports:

Has the UK government put a review of UK whistleblowing law in the hands of management accountants Grant Thornton?

Department for Business and Trade confirms it has hired private contractor Grant Thornton to undertake a review of UK whistleblowing law

The government’s outsourced and so far inaccessible review of UK whistleblowing law: The Players

There has finally been a partial response by the Department of Business and Trade.

I have responded to this. The hopefully self explanatory correspondence and uploaded supporting documents are provided below.

BY EMAIL 

Kemi Badenoch 

Secretary of State 

Department of Business and Trade 

4 September 2023 

Dear Secretary of State, 

Serious concerns about the government’s review of UK whistleblowing law, after the Letby killings 

I write to respond to a letter from your department which was the first and only substantive response to issues that I have been raising since early July about the government’s review. 

I write to express concern about the probity and transparency with which the government is currently conducting this review of UK whistleblowing law. Whilst such an exercise is well overdue, as existing UK law is highly flawed and has enabled cover ups for over twenty years, the current review is being conducted in a closed and unaccountable manner.  

The Letby killings at the Countess of Chester Hospital have shown we truly cannot afford yet more flawed UK whistleblowing law. 

The key parties controlling the government’s current review of whistleblowing law are Kevin Hollinrake MP and Parliamentary Under Secretary of State (Minister for Enterprise, Markets and Small Business) since 7 February 2023and Grant Thornton, who have been hired to undertake the review. 

Kevin Hollinrake has espoused a US style bounty hunting model of “incentives” for whistleblowing. Until appointed as a minister last year, he was a member of an All Party Parliamentary Group on whistleblowing with links to the powerful US bounty hunting industry, which was set up in 2018 with money from this industry. 

Grant Thornton had prior links with both the APPG and US bounty hunting lawyers, hosting an event by the APPG and its secretariat WhistleblowersUK earlier this year.

The Department for Business and Trade has confirmed in a reply (dated “August 2023″ and received 1 September 2023) that Kevin Hollinrake is the minister controlling the government’s whistleblowing law review. 

“The relevant minister is Parliamentary Under Secretary of State (Minister for Enterprise, Markets and Small Business) Kevin Hollinrake, whose Ministerial Portfolio includes whistleblowing.” 

The Department claimed to me that its review will consider the experiences of whistleblowers: 

“I would like to reassure you that the government believes it is vital that the experiences of whistleblowers are considered when examining the effectiveness of the whistleblowing framework”. 

However, it has not made its review process open to all, and it has taken two months to answer any questions about the review process. 

In reply to my question on how I or other whistleblowers can give evidence to the review, The Department replied that it is not publicly consulting. 

The Department stated only that: 

“The research study will include (i) a review of recent academic and relevant literature, (ii) examination and analysis of data related to employment tribunals and whistleblowing reporting by prescribed bodies, and (iii) undertaking several interviews and focus groups with various stakeholders to gather a broad range of perspectives, views and experiences surrounding whistleblowing.” 

The Department suggested that IF I am contacted by Grant Thornton, I should engage with them: 

“If approached, we encourage you to engage with them as fully as possible.” [my emphasis] 

“We continue to welcome proposals for potential research participants, and we have flagged your interest to Grant Thornton.” 

This is undemocratic and wholly unacceptable process. It smacks strongly of predetermination, controlled by vested interest. 

I had already contacted Grant Thornton directly to ask them if I and other whistleblowers could contribute evidence to them, and I have been ignored for a month. 

It is unedifying to watch the Department and Grant Thornton playing whistleblower football in this manner, especially as some whistleblowers may still be in a vulnerable state. 

Moreover, the Department has both ignored and failed to answer my questions on whether there have already been meetings with and evidence accepted from other parties such as from Kevin Hollinrake’s former associates, the Whistleblowing APPG and its external secretariat WhistleblowersUK. This silence by the Department only adds to concerns about whether the review is an exercise in cronyism. This is especially as there are particular concerns about WhistleblowersUK, some of which I briefly address in the appendix below. 

Most recently, I have been sent photos of messages, purportedly from WhistleblowersUK, which claim that WhistleblowersUK in fact wrote the Bill that the  Whistleblowing APPG has been repeatedly presenting to parliament. I have passed these to the APPG chair for her comment. It is a concern if the claim is true, and equally a concern if it is not true. 

The whole country has had the most painful reminder of what goes wrong when whistleblowing concerns are mishandled. The government has been forced to upgrade from a non-statutory to a statutory public inquiry into the Letby killings because of the level of public disgust and outcry. It is deplorable that the government is conducting a review of vital, vital whistleblowing law behind closed doors in this manner.  

Whilst hiring Grant Thornton may have given the government an element of plausible deniability, it does not absolve the government of its basic duties. I attach a discussion document by whistleblower colleagues and I which comprehensively set out what an improved UK whistleblowing law could look like. Substantial elements of this were adopted by Philippa Whitford MP in the Public Interest Disclosure (Protection) Bill.  Please accept this as an evidence submission to the review of UK whistleblowing law, on what changes should be made to the law. 

For convenience, I set out in the appendix below highly summarised principles and key characteristics of the law changes which colleagues and I proposed. I also submit as evidence to the government’s review, various summaries and documents which show why the US bounty hunting model espoused by Kevin Hollinrake and his former APPG colleagues is harmful to the majority of whistleblowers and the public interest. The bounty model gives little value to life (such as in the Letby case) and is designed for recovering vast bounties from the financial sector. Its main effect is to generate huge profits for the private, lawyer-led bounty hunting industry. 

In the context of a campaign in recent years to open up the UK market to US bounty hunting law firms, there has been a noticeable media presence linking Whistleblowing APPG members, WhistleblowersUK and US bounty law firms. For example, this is a  2018 piece quoting both Kevin Hollinrake and Constantine Cannon, the US bounty hunting law firm which funded the establishment of the Whistleblowing APPG in 2018, by paying for WhistleblowersUK’s services as external secretariat. 

Please be under no illusion that lawyers advocating for a bounty model are acting in the public interest. They act in their own financial interest. 

Whether or not Grant Thornton continues to ignore me and other whistleblowers who oppose the activities of the Whistleblowing APPG, WhistleblowersUK and the bounty hunting agenda, I expect the government to take our evidence into consideration. Please advise me if you will do so. 

I would also appreciate it if the Department of Business and Trade could answer my questions that it has so far ignored, about parties with whom it (or its contractors) has already met and from which it has already accepted evidence. I think the silence so far speaks volumes, but my request for information requires either disclosure of this information or the production of a valid exemption under FOIA as to why the information cannot be disclosed. This is especially as my questions touched on whether Kevin Hollinrake’s former associates and fellow pro bounty players, have been treated preferentially. If so, the question arises of why this is the case. 

The worst of all worlds for whistleblowers would be to end up with a model that is driven by perverse incentives due to monetisation, that is operated by actors with vested interests and who would not only not be independent from the government but even possibly complicit with it. That would be a terrible bear trap and not a safe harbour, which would utterly fail the public interest and permit more gross NHS scandals. 

In my view, for any whistleblowing mechanism to have a prospect of success, it should not be under the government’s line of management. (For example, I reject some of the proposals that have been made for UK whistleblowing governance to be controlled by the Home Office or by a police agency). 

There is no protection for whistleblowers without probity and trust, and the government’s current approach to its review of the law is not building any trust. 

Public Accounts Committee and Health and Social Care Committee have reported on many failures of whistleblowing governance over the years, and also on the weakness of the law. It is time for genuine improvement. 

UPDATE At the time of writing this letter, a letter has just arrived from Grant Thornton inviting my participation. This does not change my above views. I think the government should make its review open to any whistleblower who wants to contribute. The government should also give whistleblowers the option of submitting directly to the Department if they do not wish to entrust any sensitive personal data to a private contractor which sells whistleblowing compliance services and has links with the Whistleblowing APPG and WhistleblowersUK. 

Yours sincerely, 

Dr Minh Alexander 

Cc  

Philippa Whitford MP 

Kevin Hollinrake MP Parliamentary Under Secretary of State (Minister for Enterprise, Markets and Small Business) 

Gareth Davies Permanent Secretary Business and Trade 

Sarah Wallin Department for Business and Trade 

Steve Donaghy Director Forensic, Grant Thornton 

Ali Crotch-Harvey, Manager FSG, Grant Thornton 

Standards Committee 

Business and Trade Committee 

Health and Social Care Committee 

Public Accounts Committee 

Keir Starmer Leader of the Opposition 

Jonathan Reynolds Shadow Secretary Business and Industrial Strategy 

Wes Streeting Shadow Secretary Health and Social Care 

Steve Barclay Secretary of State Health and Social Care 

Rishi Sunak Prime Minister 

APPENDIX – EVIDENCE TOWARDS THE GOVERNMENT’S REVIEW OF UK WHISTLEBLOWING LAW 

Summary of the attached, new proposed whistleblowing law 

The document is set out in plain English and accessible to all. The principles and key elements of the new proposed law are to: 

• Promote and enforce good whistleblowing governance with early intervention and prevention, or at the very least, early arrest of reprisal; 

• Re-focus the system onto properly responding to the whistleblower’s concern and correcting wrongdoing, instead of making the whistleblower the problem, as the current law does; 

• Resolve conflict expeditiously and to minimise litigation and related waste; 

• Ensure fair restitution for loss but not rewards, and to deter reprisal with meaningful dissuasive measures that hold individuals to account, including criminal penalties for reprisal and failures to act; 

• Introduce a legal concept from other jurisdictions of “mobbing” in the workplace 

• Extend protection to third parties affected by reprisal against the whistleblower, such as family members; 

• Limited extension of protected groups to those who are not workers, but who may suffer significantly as a result of making public interest disclosures, such as patients and families in a healthcare setting. Suppression of concerns by patients and families, as well as staff whistleblowers, has contributed to many NHS scandals. We have most recently seen that families’ concerns about deliberate harm at the Countess of Chester were rebuffed. 

• Our proposal includes establishment of a central whistleblowing body outside of the government’s line of management, answering to parliament, with sufficient powers to execute and enforce the above.  

Evidence against the US bounty hunting model 

The model of bounty hunting law, “qui tam”, originated as form of rough justice in medieval England and was reportedly hated for the corruption and self interest that came with it. 

The US bounty hunting model was originally a civil war exigency. When first introduced it was acknowledged that the Lincoln administration had to do business with criminal elements, if necessary, to protect its wartime procurements. Since introduction, the law has waxed and waned. For example, it fell into disfavour when abused in the past by scavenger parties launching “parasitic” claims on the back of government actions. 

The current US bounty model is literally a type of lottery which abandons the majority of genuine whistleblowers who experience reprisal. It excessively rewards a tiny majority whose disclosures lead to recovery of large enough sums of money. Lawyers take a cut of the enormous winnings. 

The model is designed for the financial sector but Kevin Hollinrake and his former associates on the Whistleblowing APPG proposed to introduce a pro bounty Bill to apply to ALL sectors, whilst repealing existing UK whistleblowing law. This is a threat to whistleblowers from health and care, and other non-financial sectors, who are already seriously exposed but would be even more at risk: 

A Bounty Hunters’ Bill? A critique of the Whistleblowing APPG’s April 2022 Bill 

WhistleblowersUK and US bounty hunting law firms are now explicitly linked and united in their pursuit of a rewards model in the UK, as revealed in a recent joint paper. 

The modern US bounty hunting model has, due to the vast sums involved, spawned regulatory corruption: 

New research: US bounty hunting model, cronyism and the revolving door between regulators and bounty hunting law firms  

The US bounty hunting model has paid millions of public money to convicted criminals. For example: 

Bounties for bad behaviour 

The CEO of Whistleblowers UK has pressed for all to be rewarded, including wrongdoers, if they provide information. 

In the Deutsche Bank scandal, a whistleblower declined a reward and asked that it be passed to shareholders whom he believed had been unfairly punished for executive wrongdoing: 

Deutsche Bank whistleblower rejects award because SEC ‘went easy’ on execs 

This is an example of a genuine whistleblower who suffered deeply from reprisal, including through bankruptcy, but perversely got nothing from the US bounty hunting system: 

He Waited 17 Years to Be Denied an SEC Whistleblower Award 

Please also be aware that WhistleblowersUK, the external secretariat to the APPG of which Kevin Hollinrake was a member, tries to charge whistleblowers money for services and to obtain a percentage of their awards and settlements. This is a recent version of the contract that WhistleblowersUK asks whistleblowers to sign: 

WhistleblowersUK’s new financial contract with whistleblowers 

These requests for payment are not mentioned on WhistleblowersUK’s website, other than a recently added fragment of a sentence which indicated that WhistleblowersUK’s services are “affordable” 

I have been sent copies of messages from a case in which WhistleblowersUK apparently repeatedly and precisely told the individual how much time was being racked up on their case, implying that this was a business service. In the same exchanges, there is also discussion of future payment in the form of a percentage of any award. I have sent this material to Mary Robinson MP Chair of the Whistleblowing APPG for comment, copied to Susan Kramer peer and former APPG member, who employs the CEO of WhistleblowersUK as a parliamentary researcher. 

Another individual informed me that they received an unsolicited call from WhistleblowersUK out of the blue, just prior to the publicised award of remedy in their case. 

WhistleblowersUK has also publicly approached bereaved members of the public, which seems related to its bid to widely expand the definition of whistleblower to all members of the public. This is a necessary prelude to the introduction of US style bounty hunting. 

I asked the Chair of WhistleblowersUK if the organisation would make its charging policy more transparent, but I was ignored.  

I have also raised concerns with the Whistleblowing APPG about WhistleblowersUK’s handling of whistleblowers’ personal data, but I never received a response.  

Letter to the Whistleblowing APPG about the Duke of York Royal Military School whistleblowing matter 

I asked Tessa Munt WhistleblowersUK Chair about WhistleblowersUK’s handling of whistleblowers’ personal data, partly as I noticed that the company might be using a digital platform by another company to handle sensitive personal information such as disclosures, without making this clear on its website. The Whistleblowers UK Chair also ignored this.  

WhistleblowersUK have never addressed questions about finances and conflicts of interest that I put in 2019. This refusal to answer led to Normal Lamb’s resignation from the Whistleblowing APPG: 

Norman Lamb MP has resigned from the Whistleblowing All Party Parliamentary Group 

This all adds to the concerns about how vulnerable whistleblowers in crisis may be treated by the bounty hunting industry. 

RELATED ITEMS

What could a new whistleblowing law look like? A discussion document

New research: US bounty hunting model, cronyism and the revolving door between regulators and bounty hunting law firms

Whistleblowing v Bounty hunting. A new whistleblowing APPG with sponsorship from bounty hunters

Qui Tam. A tale of malicious informants and corruption in ye Olde England. And its evolution to the modern bounty hunting model

WhistleblowersUK’s new financial contract with whistleblowers

Tory MP Kevin Hollinrake who called for whistleblower “incentives” is now in a ministerial role, launching a review of UK whistleblowing law