The Whistleblowing Bill

Our citizens blow the whistle about criminal activity and ethical and procedural failures that put the public at risk of harm. Most whistleblowers tell the organisation responsible before going elsewhere.

We have seen in the recent reports into maternity services, children’s homes and the post office that whistleblowers and their warnings are repeatedly ignored at huge cost to society.

PIDA is fundamentally flawed. It was set up to adjudicate on the breakdown of the relationship between an employer and a ‘worker’ and award compensation for any ‘detriment’ suffered. Only 4% of these cases succeed and in 24 years there is NO evidence that the Employment Tribunal has escalated a single case to the CPS or police or regulator. This has resulted in many crimes going undetected for years.

The primary goals of the Protection of Whistleblowing Bill are establishing the Office of the Whistleblower, ensuring every citizen is protected in raising concerns, and educating people on the rights they have.

You can read more about her bill here.

Introduction

Society is growing increasingly concerned about the way whistleblowers are treated.

Successive governments have acknowledged the importance of whistleblowers and have taken some steps to try to encourage them to speak out, the introduction of helplines being a very visible recognition of the problem. However, we know from the work that we do that current legislation and frameworks do not go far enough to protect the public interest.

We know that whistleblowers have a key role to play in an open and transparent society. This is demonstrated by the exposure of crime, corruption, and coverup. However, whistleblowers still face retaliation, for example in the Rotherham and the HS2 cases, where the whistleblowers report ongoing victimisation.

The system of regulators operating within their sectors without co-ordination, control and, crucially, independent oversight to ensure proper accountability, is simply not working well enough to deliver just outcomes.

We have worked with whistleblowers, regulators, politicians, businesses, and the public to identify solutions which we have presented to policy makers. These solutions, largely and preferably involving legislative change, will positively impact on each level (workers, employers, regulators and the courts), with some interaction between the levels, but provide only necessary not sufficient answers to creating the success we seek. Our experience of organisational and cultural change is that it can only be achieved with a combination of leadership, self-interest, education, and enforcement.

Leadership and a coordinated aligned approach is the only way to resolve the current situation.

We are leading a campaign for the creation of an independent Office of the Whistleblower (OWB) to protect whistleblowers (and the public), investigate allegations, hold people to account, and educate the public about their rights.

A safety net for every citizen.

We seek change because we see at first hand the failure of organisations and their regulatory bodies adequately to:

1. Encourage speaking out;

2. Support those who do speak out and;

3. Hold to account those who act unlawfully.

We also seek change because the legal system is heavily biased against whistleblowers in terms of financial resources and procedures.

We also seek change because crimes and wrong-doing go undetected and unpunished when people do not come forward to report them for fear of reprisals. Even when they are reported the original allegations are often ignored in favour of pursuing the whistleblower.

We propose five significant changes to address these problems.

1. The Office of the Whistleblower

We believe that this is the key proposal that will drive real and long-lasting change. It will be an early warning system for government on emerging problems, trends, and regulatory deficits.

Existing regulatory bodies fail to adequately recognise and support whistleblowers, and are slow to hold wrong-doers to account. In our experience regulatory bodies, e.g. Police, Financial Conduct Authority, do not provide adequate support for whistleblowers nor do they hold those who act unlawfully against whistleblowers sufficiently to account.

The Office of the Whistleblower will be a self-sustaining independent organisation, reporting directly to government.

The OWB will have a full range statutory powers with real teeth to carry out its functions.

The Office for the Whistleblower will create transparency by publishing its activities and findings, enable the public to become aware of the problems faced by whistleblowers and the activities of those who seek to persecute them.

2. Specialist Tribunals

Almost all whistleblowing cases are dealt with in Employment Tribunals as cases of wrongful dismissal. These tribunals do not have the specialist expertise and knowledge adequately to determine just outcomes in whistleblowing cases.

We propose independent Tribunals with specialist training and accreditation of lawyers and Tribunal members before they are allowed to sit in judgement of cases involving whistleblowing.

3. Additional damages

Current levels of compensation disincentive people to come forward. Many whistleblowers experience severe financial hardship, deterring others from coming forward.

We propose that Tribunals should award exemplary damages additional to that reflecting loss of earnings and future opportunities, as recognition of the unlawful detriments caused.

4. Criminal sanctions for those who act unlawfully against whistleblowers

Under the current law whistleblowers are entitled to present a complaint to an employment tribunal that they have been subjected to a detriment if they suffer detriment[1] as a result of making protected disclosures[2]. In practice this is often of little value as the costs of litigation are so high and the awards in tribunals relatively low.

There are no sanctions for those who cause the detriment other than the possibility of litigation costs and financial penalties imposed on the organisation at a tribunal. There is no personal responsibility for wrong-doing. Currently organisations act with impunity with no personal risk.

A new offence will be created for causing detriment to people who have made protected disclosures, punishable by a substantial fine or imprisonment and the power to order compensation be paid to the whistleblower. This compensation to be paid by the convicted person and is different from other compensation awarded to the whistleblower.

5. Compensation for whistleblowers

Whistleblowers often suffer great hardship, financially and in their personal lives. It is very important that they should receive full compensation for this detriment.

We should also recognise that they have brought to light criminal activity or wrong-doing that will have resulted in benefits to individuals and society as a whole. For example, protection of the vulnerable from abuse, fraud prevention, tax recovery and exposing corrupt practices. 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.

6. Legislation must include every citizen

Speaking out is a normal activity, but too many people fall outside the existing legislation and can be persecuted as a result of raising concerns. It is essential that this legislation provides a safety net to all.

These proposals are intended to challenge the secrecy that obscures whistleblower cases; ban NDAs, ensure regulatory bodies do their jobs effectively, add expertise to relevant legal processes, bring to account those who persecute whistleblowers, and ensure whistleblowers are properly recognised for their selflessness and sacrifice in speaking up about crimes and injustice.

Transparency and accountability are cornerstones of a fair society.

The All-Party Parliamentary Group for Whistleblowing is an informal cross-party group that is chaired by Mary Robinson MP. The group was formed in July 2018 with the purpose of developing world-class, gold standard legislation that addresses the failures identified in The Public Interest Disclosure Act. The APPG promise is to work to identify where the law fails to protect whistleblowers and, work with industry experts, whistleblowers, regulators and businesses, to recommend positive, effective and practical proposals for change. We are not only aiming to change the current legislation but also the culture and perception of whistleblowers through the work of this APPG

Isle of Man Whistleblowing Bill chaired by Julie Edge, we are pleased to have assisted this committee and provide ongoing consultancy and support.

Co-Founders Zelda Perkins and Prof. Julie Macfarlane are working together to ban the inappropriate use of gagging clauses, also known as Non-Disclosure Agreements (NDAs). All too often they are being used to stop people from speaking out upon seeing wrongdoing. We have been supporting their work and celebrate the work of Dame Maria Miller MP who has been a champion of this cause. See more about their campaign here.