Policy Overview
We encourage policy-makers in and out of government to recognise the value of public interest whistleblowing to good governance. With the volume of new initiatives, our policy work inevitably includes challenging bad proposals as well as welcoming and supporting helpful new measures. It is our view that unless policy-makers factor into new laws practical ways in which illegal or dangerous conduct can best be deterred and detected, the regulatory burden is likely to outweigh the public benefit.
While the passing of Public Interest Disclosure Act in 1998 went a long way to reflect and embed our approach, we do try and ensure that its public interest purpose is not devalued and that its approach to good governance is not overlooked by business, regulators or the wider public.
2008
We responded to the OECD’s consultation on the Anti-Bribery Convention suggesting that whistleblowing safeguards should be introduced into the regime.
We are lobbying Parliament to remove the blanket of secrecy that means there is no information on the public record about 70% of claims brought under the Public Interest Disclosure Act 1998. We briefed the House of Lords in advance of Lord Borrie’s debate on 25 February 2008 and we briefed the House of Commons in advance of Ian McCartney MP's amendments on 4 November 2008. We are working with the Government, business and other interests to identify a practical solution.
2007
In November, we responded to a Home Office proposal that the UK follow the US system whereby some whistleblowers can get a cut of 15-30% the money recovered by the Exchequer. Rewarding whistleblowers examines the moral, legal and practical issues the proposal will raise and considers the pros and cons of the proposal. While we recognise there may be a case for such a scheme in health, defence and IT contracts between Government and private companies, more generally we call for a scheme where whistleblowers and other good citizens are recognized and commended in their local communities.
In August, we wrote to the Government a letter pointing out that the draft Regulator’s Compliance Code was flawed in two ways. First, it downplayed the relevance of information from whistleblowers, customers or competitors about regulatory risks. Secondly, as drafted it suggested that unannounced visits were undesirable. The minister replied, stating that it was not intended to downplay information from whistleblowers and consumers and that inspections are “a matter for the regulators” and the Code is silent on whether they should be announced or unannounced. The Compliance Code was revised and para 6.1 was amended in the light of our point about information from whistleblowers and consumers. To read the correspondence click here.
In June, we published a review of Whistleblowing policies in Whitehall . This review found that the Cabinet Office, which sets the standards for how public bodies behave, has the worst rated policy among Government departments. The top rating Department was Culture, Media and Sport. We also pointed out that the central guidance on whistleblowing in the Directory of Civil Service Guidance needs to be overhauled so that it provides accurate and helpful guidance to departments on the whistleblowing law and the new Civil Service Code. The Cabinet Secretary has written to Ian McCartney MP confirming that Whitehall is responding to our recommendations.
In February, we opposed Government plans to recover the costs of officials’ time spent reading and thinking about Freedom of Information requests. Our response on the proposed FoI - fees regulations argued that before any changes take place there should be an assessment of the benefits that the Freedom of Information Act has brought. We also warned that the proposed savings have been miscalculated, and that costs of implementing the changes have been ignored. Following a successful lobby led by the Campaign for Freedom of Information the Government dropped these plans.
2006
In November, we produced a paper for the Smith Institute on corporate responsibility and how the law can impact on the way managers and workers behave in practice. Our paper Collective Responsibility in the workplace also looked at a landmark House of Lords decision (Majrowski v Guy’s & St Thomas’ NHS Trust) under the Protection from Harassment Act 1997. This held that employers were liable to pay damages where one employee made another anxious on two or more occasions. We showed that the decision was the result of a series of accidents in the legislative and legal process.
In October, we published a briefing note on Article 33 of the UN Convention Against Corruption . This is a provision on the role of whistleblowing in tackling corruption and our note explains how countries around the world can sensibly comply with this provision.
In April, we responded to a new draft Civil Service Code that for the first time expressly mentioned the Public Interest Disclosure Act, we think that the internal whistleblowing provisions were over complicated as it has separate procedures for whistleblowing where an official is required to act in conflict with the Code and for any other breaches s/he is aware of. Constitutionally, we think the Code should expressly oblige officials to be straight and professional with MPs. In terms of a civil service for the 21st century, we think it should include diversity as a core value and should exhort civil servants to reject prejudice. While the substance of the revise was a welcome improvement, the drafting was surprisingly poor. Our response to the Government’s consultation on the draft Civil Service Code, along with our own draft , can be viewed here . The draft was subsequently revised and the new Civil Service Code published in June makes explicit reference to the whistleblowing legislation.
In February, the Govermment tabled the regulations that repealed the Speak Up or Pay Up legislation we had criticised and campaigned against. This had unintentionally made workers and organisations liable to pay damages on a no-fault basis where a worker failed to see or raise a safety concern.
In January, we were asked by EU data protection authorities to advise on their dispute with US financial regulators about the role of whistleblowing. Our paper Whistleblowing and Data Protection helped to dispel the myth that confuses public interest whistleblowing and anonymous informing.
2005
In a November submission to CNIL (the French data protection authority) we supported the approach in their draft guidelines on whistleblowing schemes under the French Data Protection Act, but stated that we were unable to support the guidelines as their effect, scope and application were unclear. This submission can be read by clicking here. In December, CNIL issued its new guidelines on implementing whistleblowing systems in France. These guidelines, and CNIL’s FAQs on them, can be found here.
Following a complaint made by PCaW, the Parliamentary Ombudsman published a report that strongly criticised the Department of Trade and Industry (DTI) for the “inherently misleading” way it introduced new rules that prevent the public learning about whistleblowing concerns raised under PIDA. The Ombudsman found the DTI guilty of a catalogue of maladministration and incomprehensible conduct as it struggled to head off public criticism of the new rules. Its’ report has forced the DTI to apologise to PCaW and, exceptionally, to compensate PCaW for the expense, time and trouble it incurred in trying to uphold the public interest in the face of the DTI’s misconduct. Click here to read PCaW’s press release on the report. Subsequently, the DTI agreed to pay us £130,000 for wasting our time and misleading us. Background information on our efforts to ensure open justice in PIDA claims can be read by clicking here.
In a consultation on the Code of Conduct for members of local government, the Standards Board for England asked questions about members’ duties of confidentiality and to raise concerns about breaches of the Code of Conduct. In our submission, PCaW noted that duties to raise concerns have inherent problems and suggested that members instead be empowered and encouraged to raise their concerns. Noting that PIDA does not and should not apply to members, we suggested that the common sense disclosure regime of PIDA should be the basis on which the Code addresses the issue of how to raise concerns.
We were pleased that the proposed Corporate Manslaughter Bill focused on whether or not senior managers were aware, or should have been aware, of the risk of death or serious harm posed by a failure to comply with relevant health and safety legislation and guidance. In our submission to the Government’s consultation on the proposed Bill, we made observations on how a court might decide whether an offence had been committed under the scheme in the Bill.
In April, Ross Cranston MP initiated a House of Commons debate on whistleblowing. This touched on the recent recommendations of the Shipman Inquiry and the Committee on Standards in Public Life, as well as questioning where whistleblowing best sits in the machinery of government. The Cabinet Office Minister confirmed that the Government sees whistleblowing and PIDA as about organisational culture and good governance rather than employment law. The Minister also stated that the Committee on Standards in Public Life’s recent report on whistleblowing is “thoughtful, serious and common-sensical - practical”. The full text of the debate can be viewed either here or (on the House of Commons website) here. In December the Government responded to the Committee on Standards in Public Life’s recommendations on whistleblowing and this response can be read.
Our response to the government’s consultation on the draft Civil Service Bill welcomed the fact that the Bill addresses whistleblowing in the Civil Service. However, we noted that the draft provisions confuse the already complicated arrangements in the Civil Service and set out a prescriptive and unworkable scheme that risks harming trust in government. We argued that, left as they are, the proposed arrangements will make it more likely that civil servants will turn a blind eye to wrongdoing or anonymously leak information. The response concludes by looking at the way the Civil Service handled whistleblowing about fraudulent visa applications.
2004
The Shipman Inquiry into the case of Dr Harold Shipman, the General Practitioner who murdered large numbers of his patients, examined whistleblowing as part of its overall inquiry into learning the lessons from this tragedy. As a follow-up to the Inquiry’s investigation of how whistleblowing can protect patients, Public Concern at Work participated in a workshop with health professionals to discuss recent developments and possible reforms. The Shipman Inquiry’s Fifth Report set out its findings and recommendations in respect of whistleblowing in the NHS. The Inquiry recognised the considerable progress the NHS had made in promoting a culture that encourages whistleblowing and accountability, but also recognised that more needs to be done. It strongly recommended that all GPs should promote whistleblowing and ensure that their staff know how to raise concerns about patient safety. The Report also suggested ways in which PIDA might be amended to encourage medical staff to raise concerns. The Shipman Inquiry’s recommendations on whistleblowing can be viewed by clicking here and the full text of the Fifth Report can be viewed here. Click here to view Public Concern at Work’s submissions to the Shipman Inquiry.
Since 2000 Public Concern at Work has been working to ensure that the public has access to claims taken under PIDA. Although the High Court has ruled that it is matter of public interest and open justice that this information be publicly available, regulations have been changed on several occasions to keep secret legal claims from workers who may have been victimised for blowing the whistle on fraud, corruption and threats to health and safety. In October 2004, both the House of Lords and House of Commons debated this important issue. Our briefing for these debates can be read by clicking here.
Public Concern at Work published Speak Up, Pay Up, a report into the background to, and implications of, new legislation which dealt with liability for accidents and disasters at work. One of the effects of this legislation is that employees now face paying unlimited damages if they don’t speak up about health or safety risks at work. The new law also states that while the victims of disasters still have to prove corporations are at fault to obtain compensation, employees are now liable even if they are not negligent. The Health and Safety Commission recognised the validity of our arguments and is currently consulting on proposed new regulations that would address the issues with this law. The text of the consultation can be viewed here and our response can be viewed here.
As an interested party, we made a submission on the meaning of ‘good faith’ in PIDA to the Court of Appeal case Mrs. F.M. Street v Derbyshire Unemployed Workers’ Centre.
In evidence to the Committee on Standards in Public Life we described how whistleblowing is working, what needs to be done and what evidence there is that the Public Interest Disclosure Act is making public bodies more open and accountable. This was part of the Committee’s inquiry on ‘Getting the Balance Right’ reviewing some of its key recommendations over the preceding ten years. The recommendations on whistleblowing from the Committee’s report of this inquiry can be viewed here.
Our submission to Lord Fraser’s Inquiry into the management of the Holyrood Parliament building project in Scotland highlighted the value of responsible whistleblowing as an early warning system that both deters and detects possible wrongdoing. We asked that if the evidence received by the Inquiry suggested that employees involved in the Holyrood project were aware of potential wrongdoing and yet did not raise their concerns, that the Inquiry could recommend that Scottish public sector bodies adopt and promote whistleblowing policies. Further, that the Inquiry could recommend that these policies be made available to the employees of contractors so that these employees may raise concerns about potential problems affecting any public project on which their employer is engaged.
We welcomed the inclusion in the Organisation for Economic Co-Operation and Development’s (OECD) draft Principles of Corporate Governance of a new section recognising the key role whistleblowing can play in delivering effective corporate governance. However, we were concerned that the new section did not appear to allow or condone an employee to raise a concern about illegality or danger with the appropriate authorities. Our submission encouraged the OECD to clarify that employees should be encouraged to raise concerns with the authorities if they have received an inadequate response from their employer. The OECD further clarified that an employee should not be victimised for making such a disclosure. To view the final text of the Principles, click here.
2003
We testified during the Shipman Inquiry’s examination of whistleblowing. Our written evidence deals with the background to the charity, a discussion about how PIDA works, developments in the NHS on whistleblowing in the past decade, and reforms that maybe needed. We also gave oral evidence for a full day.
Our representations encouraged the Government to amend the Police (Northern Ireland) Bill to give officers in the new Police Service of Northern Ireland whistleblower protection under the Public Interest Disclosure Order. Officers in Northern Ireland will now gain the same protection to raise genuine concerns about corruption and potential miscarriages of justice as their colleagues in the rest of the United Kingdom.
Our submission to the Parliamentary Joint Committee on the Draft Corruption Bill maintains that the new offence should catch an employee who does not reasonably believe his employer would agree to him paying a bribe. We also submit that the Bill should actively encourage employers to adopt measures to tackle corruption, including providing and promoting whistleblowing routes for their employees.
In conjunction with the public service trade union Unison, we conducted the first survey of whistleblowing in the National Health Service. The findings suggest that, while substantial improvement is required, NHS staff are increasingly willing to speak up for patient safety, even at some personal risk. However, across much of the NHS, it seems that this welcome change is in spite of, not because of, management action or encouragement. Together with Unison, we called on the Government to remind all NHS health care providers of the need to introduce and promote a whistleblowing policy.
2002
To ensure that the new statutory grievance procedures in the Employment Act 2002 were not misunderstood as to override the PIDA disclosure regime, PCaW sought for the matter to be clarified on the face of the Act. The result was the inclusion of a new clause (Sch 2, Part 2, para 15) clarifying the new procedures and a commitment from the Government to consult fully on the definition of a ‘grievance’ in regulations. This provision - as part of the discredited dispute resolution regime - will be repealed during 2008.
After representations by Public Concern at Work, and speeches by Lords and MPs, the Government amended the Police Reform Bill to extend PIDA protection to police officers. This follows a commitment by Government, after their initial exclusion from the scope of the Act, that officers would receive whistleblower protection equivalent to PIDA. From Spring 2004, officers will have the security to question, and where necessary, challenge or report malpractice. By helping police forces and police officers combat, and be seen to combat, wrongdoing, the protection of PIDA will help maintain and enhance public confidence in the police. Click here for the Lords debate on extending PIDA protection to the police.
Our submission to the Committee on Standards in Public Life’s inquiry into Ministers, special advisers and civil servants recommended that the Civil Service adopt a unified approach to whistleblowing that reflects the disclosure regime of PIDA. We also recommended that all government departments and agencies should establish and promote whistleblowing policies.
In our response to the Higgs Review on the role of non-executive directors (NEDs), we recommended that NEDs be brought within the protection of the whistleblowing law. In addition, we recommended that the role of NEDs in overseeing a company’s whistleblowing and governance arrangements be strengthened.
In a submission to the Ethics Standards Board, we examined how the role of accountants could be strengthened to improve financial scrutiny and help business deter fraud.
Our response to the consultation In the Public Interest opposed the extension of legal professional privilege to accountants and other advisers, as this could thwart attempts to tackle corporate scandals. We recommended that PIDA should be amended so that lawyers are protected for raising concerns about a client’s wrongdoing, either with senior partners in their firm or with the client directly.
2001
We submitted a response to the Government’s Routes to Resolution proposals on employment dispute resolution and employment tribunals reform.
The Kennedy Report into botched operations at the baby heart unit of the Bristol Royal Infirmary was prompted by whistleblowing consultant Dr Stephen Bolsin. Sadly, the Report misunderstood the provisions of PIDA and how it affects workplace culture. After representations from us, the Government agreed that the Kennedy Report was incorrect and that people like Dr Bolsin are now fully protected. See PCaW’s legal opinion on the Kennedy Report and the Government’s response.
2000
The Department for Environment, Transport & the Regions was keen to see how whistleblowing was working in local government. It also wanted to discuss the recommendation of the North Wales Child Abuse Inquiry that council workers should be under a legal duty to blow the whistle. We expressed our misgivings about this proposal, cautioning that it would do little to create a more ethical environment and that in practice it would be likely to cause more problems than it would solve. (Many of our views on legal duties in this area can be found in Speak Up, Pay Up)
We published a paper on the impact of the Human Rights Act on whistleblowing in the UK, and prepared a briefing for the House of Lords on the Freedom of Information Bill. Our response to the Home Office proposals on Corporate Killing explains our fears that the proposals could weaken the laws which presently deter directors from acting recklessly and that, if implemented as they are, they will lead to lengthy and unnecessarily complex prosecutions.
Pre 2000
Information on our early policy work can be found in our annual and biennial reports.
