THE STORY BEHIND THE CHARITY AND THE ACT
CHANGING ATTITUDES TO WHISTLEBLOWERS
When the idea of an independent resource centre on whistleblowing was first discussed in 1990, the issue was seen almost invariably in a hostile light. The term was most frequently used to describe public officials who had paid a heavy penalty for leaking information, usually to the media. Whistleblowers were presented, if not as villains, as loners. For this reason there was some initial scepticism about the need for or role of a charitable organisation in this area.
At the same time, several major disasters such as the sinking of the Herald of Free Enterprise, the Clapham rail crash, and the collapse of BCCI had led to exhaustive public inquiries to learn lessons for the future. While the inquiries into these disasters focused on the adequacy of laws and regulatory controls, they each revealed that staff had been aware of the danger but had not felt able to raise the matter internally or to pursue it if their concern was not taken seriously. In our view, the prevailing approach to whistleblowing had itself fostered this atmosphere in which people did not feel it right, safe or acceptable to challenge malpractice, risk or misconduct in their workplace.
THE IMPACT OF DISASTERS
The implications of this culture were far-reaching. Even where the victims of these disasters were compensated, the general view was that nobody was accountable for what had happened. This in turn damaged public confidence, not only in particular organisations but also in whole sectors and in the law. In addition, the response to these disasters of introducing new laws and regulations – however necessary and desirable – meant that well-run organisations found themselves bearing the burden of changes necessitated by their irresponsible competitors. The case for change was clear.
WHISTLEBLOWING AND ACCOUNTABILITY
In setting up Public Concern at Work, we wanted to demonstrate this link between whistleblowing and accountability and to signal the need to break with a culture which fostered complacency and cover-ups. There was, however, no need to develop a wholly fresh approach as we found much support and guidance in the case law on confidentiality and the public interest. Rather, our tasks were to broadcast these principles beyond the confines of the Royal Courts of Justice, to extend the law so that it protected people whom it found had acted in the public interest, and to provide practical help.
Events have conspired to give us a receptive audience. Lyme Bay, Matrix Churchill, Barings,Bristol Royal Infirmary, Enron, and numerous incidents of abuse in care, have reinforced our essential message that misconduct would not be deterred and accountability could not work in practice while people remained resolutely silent in the workplace. At the same time, whistleblowers such as Andy Millar, Steven Bolsin, Terry Bryan, Sarah Barnett and Paul van Buitenen have highlighted the plight of those who speak up.
Back in 1993, the Audit Commission was quick to see the relevance of what we were saying and to endorse our work in the context of probity in local government. Even before our launch, the European Commission and Parliament had asked us to report on the role of whistleblowers in controlling financial malpractice in Europe. Within our first year, a number of leading employers also offered their support, some having learnt, from bitter experience, the costs of a culture where their employees had minded their own business.
The media, while disappointed that the cases our legal helpline handled were confidential, proved invaluable in promoting our message and publicising our work. Several editorial endorsements ensured that the issue received the attention of opinion formers.
One of the most significant endorsements of our work came in 1995 from the Nolan Committee on Standards in Public Life, which accepted our view that unless staff thought it safe and acceptable to raise concerns about misconduct internally, the likely result was that they would stay silent, raise it anonymously or leak the information.
WHISTLEBLOWER PROTECTION LAW – FROM CONCEPT TO THE PUBLIC INTEREST DISCLOSURE ACT 1998
It was against this background that we and the Campaign for Freedom of Information were asked in the spring of 1995 by Dr Tony Wright MP to draft a whistleblower protection law to raise the issue in Parliament. Support across the political spectrum was strong. The Bill built on the common law approach to public interest disclosures and provided that such whistleblowers should be protected by law against reprisals. The Bill’s proposals were widely supported among consultees, including the Nolan Committee which in 1996 strongly endorsed its essential message.
As a ten-minute rule Bill, Tony Wright’s measure could do nothing more than raise the flag. The following year Don Touhig MP, who had come high in the private members’ ballot, re-introduced the Bill, which had been revised in the light of the consultees’ responses. The lack of opposition to his private member’s Bill meant that it received a rare and unanimous endorsement at second reading. The then Government, however, was not persuaded of the need for legislation and Mr Touhig’s Bill did not leave the Commons. By then, however, Tony Blair had pledged that if elected his Government would legislate on these terms.
These initiatives in Parliament – coupled with our reports on defence procurement, abuse in care, standards in public life, Matrix Churchill, the police and local government, and reinforced by the many serious issues handled by our legal advice line – had secured a sea-change in attitudes towards whistleblowing. Shortly after the election, the Government offered to support Richard Shepherd MP’s Public Interest Disclosure Bill. With Ian McCartney the minister responsible, the negotiations on the scope and detail of the Bill were driven from all sides by a strong and keen commitment. Our consultation among interested parties revealed overwhelming support for the measure and also for our proposal that public interest whistleblowers should be compensated in full for any losses they suffered as a result of victimisation.
The Public Interest Disclosure Act received Royal Assent on 2 July 1998 and came into force exactly a year later. Bolstered by the passing of the Act, Public Concern at Work has continued to do what we set out to do when the charity was established in October 1993. The Act has helped to establish generally, and in the working places of this country, a greater sense of responsibility to ensure that dangers to health and safety are removed and that wrongdoing is not permitted to flourish. Popular attitudes to whistleblowing have greatly improved : surveys showed that (a) 85% of people said they would raise a concern of malpractice with their employer; (b) 37% said they would go to a regulator or the police if the internal route was not an option; and (c) attitudes in Britain were much more positive than those in Europe.
In terms of its declaratory effect, the Act is proving an important addition to the framework of law in this country and its success has meant that it has become a model for similar legislation in South Africa and Japan. It is also admired worldwide as an example of realistic and balanced public interest whistleblowing protection .
OUR ADVICE AND THE LAW
As to judging its success in practice, every case brought and won is a sign of failure where someone has been victimised for blowing the whistle in the public interest. Our Whistleblowing Advice Line remains committed to the principle that prevention is better than cure and we focus on practical and effective ways that genuine concerns can be raised and addressed. We strongly discourage people or their advisers from seeking out to shoe horn the whistleblowing law into their private employment dispute or to use it as bargaining power to increase their own compensation at the expense of any underlying public interest issue.
Aside from our advice line, we continue with our policy and public education work and offering training and consultancy to organisations. The Act provides a part of the background to our work – most of our time we are providing practical advice on how to advance the public interest. Many individuals, public servants and businesses welcome and support what we do.