Few pieces of legislation stand the test of time; especially one in a controversial area like whistleblowing. The aims remain the same. Richard Shepherd MP in introducing the Public Interest Disclosure Bill in 1997 said:

‘I hope that the Bill will signal a shift in culture so that it is safe and accepted for employees… to sound the alarm when they come across malpractice that threatens the safety of the public, the health of a patient, public funds or the savings of investors. I hope that it will mean that good and decent people in business and public bodies throughout the country can more easily ensure that where malpractice is reported in an organisation the response deals with the message not the messenger.’

Gaps are clear in what has become part of the Employment Rights Act 1992. Now, a whole range of people wish to fill those gaps from different philosophical positions.

Magazines have lauded whistleblowers on their front covers and there have also been several blockbuster Hollywood films about whistleblowers in whole or in part. The response to the Facebook whistleblower, Frances Haugen has been generally positive and she was described as a ‘21st century heroine’ in the US Congress. The fate of most is, however, decidedly less glamorous.

The whistleblower as martyr

In any organisation (whether public or private) the people who are ‘on the ground’ will usually be the first to spot trouble or potential trouble, whether it takes the form of threats to health and safety or financial corruption or other dangers or wrongdoing. There has been some shift in attitudes to those who do come forward. The importance of whistleblowing is now widely acknowledged, as are the perils still faced by those who blow the whistle. Whistleblowers are no longer seen as snitches who should be ‘sent to Coventry’ and isolated but many do suffer for coming forward and are shunned and avoided.

The whistleblower as martyr has never been more vividly captured than in the case of Dr Li Wenliang (pictured above), the most prominent whistleblower in the COVID-19 epidemic. Had his voice been heard so many lives may not have been lost. Instead, he was shunned and hounded. All too often, whistleblowing draws a negative, defensive response. The culture at work may be toxic. Staff often fear victimisation. There may be a heavy psychological cost to putting one’s head above the parapet and blowing the whistle. Many whistleblowers complain that there is often a long time between the disclosure being made and any regulatory response, if indeed there is such a response at all and lack of response from regulators is one of the bitterest and loudest complaints of some whistleblowers who may have risked their careers and health to bring facts to their attention.

The Bill, which became the 1998 Act, was able to sail through Parliament due to cross-party cooperation, which is unusual if not unique on a matter in any way impinging on employment law. The Act offered protection to the whistleblower provided that the disclosure is sufficiently linked by a reasonable belief test to specified subjects of public concern, and subject to requirements depending on to whom the disclosure is made.

While there remains a broad consensus as to the importance of whistleblowing protection, and the need to foster a change of culture to one where being a whistleblower is no longer synonymous with self-sacrifice, the route required to achieve this is more controversial and problematic. There is not cross-party unity now although some of the themes are constant. Views have differed between those looking to build upon and supplement the existing regime, to those looking to scrap and replace it, or to postpone that issue until after the establishment of a new Office of the Whistleblower.

Conceptually, there is a need to move beyond employment law and this crosses into regulatory and company law and good governance more generally. This is not an issue confined to the UK. In introducing the new EU Directive, the Commission observed that whistleblowing protection in the EU was fragmented across member states and uneven across policy areas.

Proposals for reform: three Bills

Pressure has been building in the UK for reform of the domestic regime relating to whistleblowing, not least through the pressure groups Protect and Whistleblowers UK (which services the All Party Parliamentary Group on Whistleblowing).

The Public Interest Disclosure (Protection) Bill has been introduced by Dr Philippa Whitford MP (SNP), and the Office of the Whistleblower Bill was introduced by Baroness Kramer (twice). The latter Bill focuses on one big idea, an Office of the Whistleblower with other reforms to await review after its establishment and recommendations.

The Whitford Bill, on the other hand, proposes wholesale replacement of the current protected disclosure regime, and in some respects a fundamental change to focusing on regulatory enforcement and criminal liabilities. It proposes enforcement measures by a ‘Whistleblowing Commission’, established to protect whistleblowers and whistleblowing and ensure concerns were investigated and acted on in the public interest. In addition, there would be a duty on a relevant authority to cooperate with the Whistleblowing Commission and to handle protected disclosures in accordance with Whistleblowing Commission standards. There would be two new criminal offences: (a) subjecting a person to a detriment as a consequence of that person being a whistleblower (with the above extended meaning) or a close relative of a whistleblower; and (b) failing to investigate a protected disclosure.

During the second reading, Dr Whitford explained her thinking that ‘many whistleblowers report that when they have involved regulators, they have been intimidated in exactly the same way and have made no progress’.

The draft Protect Bill (which at present does not have a Parliamentary sponsor) sets out detailed provisions to amend and strengthen the current regime. The Protect Bill would replace the present exclusive list of matters about which disclosures can be made with a non-exhaustive list which includes several categories who are either not covered, or whose inclusion is doubtful at present, including volunteers, trustees, foster carers, suppliers and partners in firms. In addition, protection would be extended to any person who receives or investigates a protected or qualifying disclosure.

There would also be requirements as to the processes to be applied by a prescribed person in relation to protected disclosures including as to preserving confidentiality and feedback (to be provided unless a risk assessment identifies a serious risk of harm to any person).

One interesting element is the extension of interim relief awards to detriment claims. This would follow the example set in Eire by the Protected Disclosures (Amendment) Bill 2021, which in practice could reverse detriments such as demotions and suspensions, or prevent the issuing of negative references, pending the final hearing.

There would also be a power for tribunals in the event of a successful protected disclosure detriment or dismissal claim, to make recommendations to obviate or reduce the detriment of any matter to which the proceedings relate, with power to increase compensation in the event of non-compliance.

The government has promised to review the area when there is sufficient time and it is hoped that a synthesis of these measures could be reached so that the promise held out by Richard Shepherd can be finally achieved (although we are dubious about the merits of the Whitford Bill as it stands). The need is apparent, the means less clear.