Is the revelation about Government splits over the role Huawei should play in the rollout of 5G technology within the secretive National Security Council (NSC), an act of reckless leaking, or brave whistleblowing?

For many inside and outside of Government, this was a dangerous and corrosive leak. This was the first time the press has been given information about the discussions within the NSC, a body of senior minister and security officials where they informally and openly discuss national security issues. Its discussions and decisions are kept secret, protected by the Official Secrets Act 1989 (OSA) which makes disclosure of certain sensitive information without authority a criminal offence, and the NSC bars members from having mobile phones, computers or any recording devices during meetings.  Jeremy White, Secretary of State for Culture and member of this committee, put the case against the leak, very well in Parliament:

“This (the leak) was unacceptable, and it is corrosive of the ability to deliver good government, which is something for which we must all take responsibility. In discussions of this kind, people are entitled to express whatever views they wish—and they do—but once the discussion has been held, collective responsibility requires that people do not repeat their views publicly, and they certainly should not discuss matters that have a security implication of this kind.”

What’s more there was more then a whiff that the motivation for the leak was less about the public interest and more about leadership ambitions in a Government who have struggled to keep cabinet discussions confidential.  The response from the Labour party, former Government Ministers and former security officials has been to call for an enquiry to discover who leaked the information, with some even saying the guilty party should be prosecuted.  Underlining this argument is the idea that this was a leak, revealing damaging information publicly, for political means and so lacked any public interest.

The case for this being an act of whistleblowing rests on the argument that the decision made over Huawei should be made in the open.  There is the argument about our future relationship with China and the impact on vital technology and there has been a lot of public concern expressed over this decision.  There is a public debate on the issue where the decision is being made behind closed doors. This is not revealing UK defence capabilities or confidential negotiations with a foreign country.  This is an attempt  to make a secret decision on something that needs public airing.

The Backbench MP Anne Main in Parliament best summarises the argument when she said:

“I am a little concerned that the leak may be trivialised by saying that it is as a result of someone’s leadership campaign. I am more concerned that it may be as a result of whistleblowing, because the process is so concerning to someone that they have felt the need to break the bond of trust that has existed for so long.

I accept that the review is going on at the moment in great secrecy, but since this has now been brought out into the open, can my right hon. and learned Friend assure the House that absolutely every consideration will be given to all the concerns that have been raised by hon. Members here today about both our relationship with countries such as Australia and our cyber-security and national security? Importantly, will he make sure that some concept of future deals with China is not colouring what we must now have absolutely at the forefront of our mind—the safety of the British public?”

I’ve so far laid out the arguments put forward for whether it was a leak or an act of whistleblowing which has been based on whether there was public interest in the disclosure.  Yet if there is a leak enquiry, if this uncovers the leaker and this led to a prosecution under the Official Secrets Act (OSA), the distinction between leaking or whistleblowing will not even enter the legal arguments before the jury.

This is due to the OSA lacking any kind of public interest defence, in fact it’s a strict liability offence meaning that the motives or reason are irrelevant to whether someone’s guilty, what’s relevant is whether the disclosure was authorised or not .  Here it doesn’t appear to have been authorised. However, if someone was so concerned about a decision they felt compelled to blow the whistle, knew they lacked authority to do this, then the public interest in the information being revealed is totally irrelevant.

A final thought on the situation, it would be surprising and a first if a Minister was uncovered as the source of the leak and then prosecuted under OSA.  This is not something that happens: all of the prosecutions under the OSA have been against government officials, not politicians.  Some cases may succeed, others result in an investigation with no conviction (Christopher Galley), in others, the case has collapsed (Katharine Gunn). As the media has noted Ministers have been disclosing details of confidential cabinet meetings for months to the press as Theresa May’s administration loses authority on a seeming daily basis.  Theresa May has issued warnings on this behaviour but has not investigated, yet this level of leak appears unprecedented. We’ll see if the noise and fury produces a prosecution, but I can’t help but feel that if an official was suspected of being responsible for the disclose they would almost certainly be prosecuted.

By Head of Policy, Andrew Pepper-Parsons

The Government has brought forward proposals to tackle NDA (non-disclosure agreements) in harassment and discrimination cases following the #MeToo movement. Our view is these proposals will make just a small dent in improving common practices in concluding settlement agreements. The proposals address only a small part of the wider problem of sexual harassment in the workplace.

The government’s main proposal on confidentiality obligations is to prohibit any agreement from stopping the worker taking information to the police. Protect has highlighted that this is not only unambitious but also puts the focus in the wrong place. The police would only get involved if the allegations met the threshold for criminal behaviour. The majority of these cases are not about criminal law but about rights in equality law, where the police have no role.

The difficulty presented by confidentiality in harassment cases is that they prevent workers from detecting a culture of harassment in the organisation. Victims are prevented or discouraged by draconian confidentiality clauses from raising concerns to an appropriate body.

To tackle this, Protect has recommended  the government prohibit agreements from stopping a worker making a disclosure about harassment or discrimination to the Equality and Human Rights Commission (EHRC). The EHRC is already tasked with ensuring compliance with laws on discrimination and harassment. Giving it this specific role as a receiver of information about discrimination and harassment would allow it to piece together individual reports and take action where necessary.. The important point is that workers should feel comfortable sharing their experiences with a body that is able to take some action against widespread breaches of the law.

It seems others share our view to take stronger, bolder actions against exploitative non-disclosure agreements. Last week, the Health Secretary Matt Hancock announced proposals to ban non-disclosure agreements in the NHS. While we welcome the government’s concern for non-disclosure agreements that may stifle whistleblowing, it must be recognised that this is only a small part of the picture. A successful whistleblowing scenario is one in which the worker can raise the concern and keep their job. The cost to the whistleblower of raising concerns should not be that they must leave their employer.

This highlights the need for government to look more closely at prevention, tackling workplace harassment and discrimination before it arises. We would urge the government to adopt the recommendation of the Women and Equalities Committee to introduce a requirement on employers to prevent and address sexual harassment at work. By the time a worker comes up against confidentiality clauses, much of the damage has already been done.

Government consultation: Confidentiality clauses: measures to prevent misuse in situations of workplace harassment or discrimination

Protect’s consultation response

By Protect adviser Dugald Johnson

Julian Assange is back in the limelight, after seven years holed up in the Ecuadorian Embassy. Most media and public attention has been focused on the man, while the war atrocities that Wikileaks revealed have not been addressed.

Is Assange a hero? A criminal? Someone to be proud of and to defend, or someone who has brought disgrace, and created instability? Society and the justice system demand answers…

Allegations about Assange the man have obscured an important question about how the powerful are not keen to discuss the very real wrongdoing that Assange helped to bring to light. WikiLeaks, Assange’s outlet, published evidence from whistleblower Chelsea Manning which indicated the most severe kind of wrong doing: war crimes, extreme abuses of power, lying in public office, deliberately misleading the public and the press, and destroying the lives and livelihoods of innocent civilians. What action is being taken to make it easier for those like Manning to raise concerns safely in future?

The key question no one seems to be asking is why Manning felt forced to use Wikileaks to expose clear and appalling wrongdoing in the first place. Both Manning and Assange risked being heavily criminalised for revealing secret information. You may disagree with their approach, Protect view the mass dumping of national security documents to be reckless and is not how good, responsible journalists approach such issues, but without these leaks, how would these atrocities have come to light?

Anyone who comes across wrongdoing at work needs to have appropriate channels to raise their concerns. Our advice, and the structure of the Public Interest Disclosure Act 1998, steers workers to raise concerns internally, with an appropriate regulator or MP, and only with the press in limited circumstances if other routes will not be effective. There is no public interest defence for those who commit a crime by their whistleblowing to the press. This places whistleblowers in often impossible situations where silence or anonymous disclosure become the only options.

In the UK, many laws – including the Official Secrets Act – make it a crime to disclose unauthorised information. For the recipient there is also a risk. The Assange case is controversial – If Assange is prosecuted, will this have a chilling effect on other journalists who may be on the brink of revealing similar outrages? There are many views on whether Assange should be extradited or not, and if so to Sweden or the US. But whatever happens to him, the freedom of the press must be protected so this crucial safety valve for whistleblowers remains open.

By Protect adviser Laura Fatah

Protect is calling on the government to adopt new EU whistleblowing legislation, or risk UK whistleblowers being left behind with out-of-date legislation.

As the EU’s Whistleblowing legislation passes its final hurdle in the EU Parliament today (April 16), Protect, wants the same gold standard protections introduced in the UK. We want the government to keep its promise that workers won’t be affected negatively whatever happens with Brexit and strengthen the protection of UK whistleblowers -especially those currently not protected if they speak out on public interest concerns.

The EU legislation follows campaigning by the Whistleblowing International Network (WIN), of which Protect is proud to be a co-founder, and others. The ground-breaking legislation must become law across all EU members by May 2021.

Protect’s Senior Legal Consultant, Cathy James, congratulated the hard work of civil society, but warned against the danger of UK whistleblowers being left behind.

“We want the government to adopt key elements of the EU legislation to ensure more whistleblowers feel safe to speak up and stop harm. As the UK’s leading authority on whistleblowing we hear from far too many whistleblowers – volunteers, self-employed workers, non-executive directors, and cases such as district judge Claire Gilham which we are intervening in – who find they are not adequately protected” she said.

Cathy added, “The broad reach of the directive, including immunity from civil action for those who blow the whistle responsibly and the call for funded legal and other support will level the playing field.  If not adopted here, UK whistleblowers will find the legal protection has become a cardboard shield.”

Five key elements for UK government to adopt from EU Directive:

1. Broadening the whistleblowing protection to include more people including volunteers, Non-Executive Directors, self- employed contractors and job applicants.  Under the EU Directive a much broader range of people will be able to claim protections from detriment or dismissal if they whistleblow.  Crucially, the directive will also cover job applicants – addressing the difficulties faced when a whistleblower is “blacklisted” and labelled a trouble maker.

2. A requirement on all organisations with more than 50 employees to introduce internal channels and procedures for whistleblowing, including protecting their confidentiality and providing feedback.  There is currently no obligation on organisations (outside of regulated sectors such as Financial Services or the NHS) to have any whistleblowing arrangements.  This simple change would make it easier for workers across the UK to find a route to speak up and stop harm sooner, whatever sector they work in.

3. New provisions to protect whistleblowers from liability.  Under the EU directive, there will be a defence for whistleblowers for incurring civil liability of any kind, provided that they had reasonable grounds for whistleblowing.  People will be able to blow the whistle without fear that their employer will come after them for breach of confidence, defamation, data protection and copyright breaches among others.

4. Introduction of legal aid for Whistleblowers.  Currently there is no legal aid for whistleblowers seeking to bring employment claims (except when discrimination matters are also engaged). Too many whistleblowers cannot find legal advice or representation which allows them to take their claims to tribunals – and access to justice for these groups is denied,

5. New standards for regulators. The directive requires member states to have regulatory bodies who engage with whistleblowers in the industry, sector or profession they regulate.  These standards should include how these regulators receive whistleblowing disclosures, maintain confidentiality, provide feedback and follow up on any disclosures made.

Strengthening current whistleblowing law should make it easier for the likes of District Judge Claire Gilham. Her case (which Protect is intervening in) goes to the Supreme Court in June to decide whether judges are able to blow the whistle.

District Judge Gilham said, “People may be surprised to learn that Justice does not currently offer specific structural protection for whistleblowers, which other sectors such as financial services and the NHS are obliged to. The Ministry of Justice are asserting before the Supreme Court that Judges are not either currently within the scope of whistle-blowing because they are not workers, so the new EU directive could change this for Judges as it would for the self-employed, NEDs, volunteers etc.”

She added, “My case, seeking statutory protections for whistleblowing in the public interest by Judges in order to protect the independence of the judiciary might well have been easier to pursue under the proposed new EU law.”

Protect will be writing to MPs and prospective MEPs urging these five key elements of the EU Directive to be pushed through.

Read our EU-Directive-APRIL-2019