Stephen Colegrave begins a new Byline Times series on the people exposing wrongdoing in public life by considering the implications of Brexit on the protections provided to UK whistleblowers
Whistleblowers have few safeguards in the UK.
The current legislation – the Public Interest Disclosure Act 1998 – is very unbalanced and favours the employer or organisation that the whistleblower is trying to bring to justice.
Many safeguards are covered by the ‘EU Whistleblower Protection Directive’, such as providing safe channels for whistleblowing, and protections against sacking, demotion or liability. This was due to be implemented next year but, because of Brexit, this directive will not cover whistleblowers in the UK.
This matters because whistleblowers are often the only way for members of the public and the authorities to find out about corruption and abuse – especially now that local press and investigative journalism has been pushed to the edge of extinction.
The EU estimates that 7% of employees will have to whistleblow at some time in their career. High-profile examples such as the ‘Panama Papers’ and the Cambridge Analytica revelations make headlines.
Without hundreds of thousands of every day whistleblowers, much of the bad practice which can destroy lives present in our public services would go unchecked.
Employers Can’t Be Trusted
The history of whistleblowing demonstrates that, however seemingly enlightened, employers and organisations cannot always be trusted to safeguard and learn from their whistleblowers.
The NHS, for instance, is an organisation that can benefit hugely from whistleblowers. In 2006, the Chief Medical Officer Sir Liam Donaldson admitted that there was a one in 300 chance of dying in hospital as a result of medical error – 33,000 times higher than in an plane crash – and there is little evidence to show that this has improved.
The NHS has been dogged by a series of large scale negligent deaths, one of the worst of which was 456 patients at the Gosforth War Memorial Hospital being killed having been prescribed inappropriate drugs between 1988 and 2000. A public inquiry in 2018, the Gosforth Review, proved that witness statements from whistleblowers at the time were ignored. The authorities suppressed the original Baker Report into the scandal in 2002. The Government did make noises about improving safeguards for whistleblowers after that – and the EU Directive seemed to be likely to do this.
When the NHS commissioned Sir Robert Francis in 2014 to produce a report on how to “foster a more open and honest culture’ in the NHS, hopes were raised that at last things would change. Although he created optimistically named ‘Freedom to Speak Up Guardians in NHS Trusts’ and an Independent National Officer, now known as the National Guardian’s Officer, to advise and publish the results of this initiative, there is little evidence that this review made any difference.
Whilst the National Guardian Officer was not given any powers to actually safeguard whistleblowers or to compel trusts to do so, nor can they conduct their own investigations. They cannot review cases until all other processes are completed, including employment tribunals, meaning it is very often too late.
Indeed, the current National Guardian Officer, Dr Henrietta Hughes, has not sought any such powers, has not supported reform of UK whistleblowing laws and seems more than satisfied with keeping to the limited remit she has inherited. She has however spent £33,394 sponsoring a Health Service Journal Award over the past two years which she judges, according to disclosed correspondence.
Legislation is the Only Answer
The NHS is a typical example, albeit a very large and important one, of what happens if employers are given the benefit of the doubt to create their own systems in the absence of effective legislation.
That is why along with food, safety and employment standards, the consequences of leaving the EU at the same time as effective whistleblowing safeguards would have been introduced covering the UK is so dangerous.
The only hope then is to replace the 1998 Public Disclosure Act with domestic legislation that redresses the balance between employer and whistleblower.
A group of dedicated whistleblowers and MPs have been working over the past two years to develop a new Public Disclosure Act that would provide proper safeguards for whistleblowers and help plug the gap left by the EU Directive. The bill presented to Parliament by Dr Phillippa Whitford MP is due for its second reading at the end of the month.
If it becomes law, for the first time, organisations will be compelled to properly handle and follow up whistleblowers’ concerns and correct wrongdoing. It will institute criminal sanctions for anyone who harms whistleblowers or fails to act appropriately on their disclosures and deter victimisation and deterrence, as well as ensure fair compensation is awarded. Importantly, this bill would establish an independent central body to enforce better whistleblowing governance by employers and bodies such as regulators.
With the Government showing little interest in safeguarding whistleblowers – and with the Government itself and its agencies often being in potential conflict with whistleblowers – the campaign to ensure the bill passes its second reading is essential.
A petition has been set up to demand reform of whistleblowing laws. As one of the campaigners for the new bill, Dr Minh Alexander, says: “Ensuring the proper safeguards for whistleblowers is essential to safeguarding our society and democracy and we shouldn’t let Brexit take this away from us.”