Policy update: whistleblowing protection and 'the snooper's charter'

21st November 2016

As the Investigatory Powers Bill (IPB) gains momentum and passes through the Parliamentary process, concerns are being raised about the how the Bill will impact on whistleblowers.

So far the debate in the Bill has focused on the threat to investigatory journalism with fears that stories such as the Panama Papers may never be broken as new surveillance powers will undermine a journalist’s ability to protect whistleblowers as sources.

The proposed Bill will also give law enforcement and security services wide reaching new powers and offers few safeguards for whistleblowers in return. Under the new Bill security services are able to access greater swathes of information, including that which might be legally privileged. Whistleblowers run the risk of losing their jobs, and in extreme circumstances, where in the process of revealing wrongdoing they break the law they can be pursued through the courts (as in the case Antoine Deltour the LuxLeaks whistleblower), making access to confidential and legally privileged advice all the more vital.

A coalition of the Law Society, Bar Council and the National Union of Journalists representatives have formed the “Speak in Safety” campaign to push the Government to provide better protection for journalist sources and client lawyer protections in IPB.

These are important threats to whistleblowers posed by the Bill and better safeguards are vital, but whistleblowing can also play an important role in providing oversight for the new powers contained in the Bill.

Britain has comprehensive legal protection for whistleblowers. The Public Interest Disclosure Act (PIDA) which covers disclosures to organisations, regulatory bodies or MPs, and even to the media.

However, whistleblower protection is not universal and there are two exceptions relevant to the IPB. The first is that members of the intelligence service are completely excluded from the legal protection, and secondly PIDA protection does not extend to workers in any sector where the disclosure would be a criminal offence, such as a disclosure of information covered by the Official Secrets Act 1989 (OSA).

There is also uncertainty as to how effective whistleblowing arrangements for the intelligence service are as the details of the arrangements are not publically available. In terms of an external oversight body for the intelligence service workers, the Intelligence and Security Committee (ISC) in Parliament can protect those who appear as a witness before them. This begs the question at what point does someone become a witness and qualify for this protection? When passing on information? At the point of disclosure or investigation?

Overall, this creates a hostile environment for intelligence service personnel who may in the course of their work uncover abuses of power under the IPB.

This is why we proposed amendments to the Bill which would create a whistleblowing protection framework, based on recognised best practice guidance the Global Principles on National Security and the Right to Information (The Tshwane Principles). These principles were published by the Open Society and drafted by civil society organisations, including PCaW and national security experts. Our proposed amendment contained the following key principles:

• A clear list of examples of the wrongdoing, malpractice or risk that can be raised under the scheme;
• A clear indication of internal and external routes for a concerned worker to approach with their concerns;
• Clear protection against acts of victimisation or retaliation for raising concerns;
• A public interest defence against prosecution for unauthorised disclosures (this defence can be applied for by workers in the intelligence service and for workers.
In response the Government added a section to the Act called an ‘information gateway’, which states:
‘(1) A disclosure of information to the Investigatory Powers Commissioner or another Judicial Commissioner for the purposes of any function of the Commissioner does not breach— (a) an obligation of confidence owed by the person making the disclosure, or (b) any other restriction on the disclosure of information (whether imposed by virtue of this Act or otherwise). (2) But subsection (1) does not apply to a disclosure, in contravention of any provisions of the Data Protection Act 1998, of personal data which is not exempt from those provisions.’

This section allows a concerned worker to approach either the Investigatory Powers Commissioner or the Judicial Commissioner with concerns, but it does not provide protection from victimisation and is silent on a public interest defence for criminal offences around the disclosure.

The clause is also vague on when a concerned worker in the communications service provider or the intelligence service can approach either the Joint Committee or Investigatory Powers Commissioners. The clause talks about how concerns can be raised “for the purposes of any function of the commissioner”. This wording is not at all clear as to whether an individual can only approach to a Commissioner if they are being asked for information or in the process of an investgiation, or whether an unsolicited disclosure can be made.

In answer to calls for a public interest defences to unauthorised disclosure of information in relation to the execution of warrants and use of powers from the Bill the Government pointed to the ‘information gateway’ as a way for whistleblowers to take forward their concerns. This is an inadequate response and puts far too much pressure on this clause to create the right legal framework for concerns to be raised. Crucially there needs to be far greater focus on how to protect whistleblowers from victimisation and legal threats.