In our December 2019 article about the new European Whistleblowing Directive, we noted that, although the UK was unlikely to implement the Directive as such, the UK All Party Parliamentary Group (or APPG) on Whistleblowing was active (having produced a report, and promised to table questions to the UK Government and to support new Bills which drive root and branch reform of existing legislation), and that there may therefore be some momentum for change to the current UK whistleblowing laws.
Our crystal ball gazing has had some success! Shortly after the article was published, two new Private Members' Bills on whistleblowing were presented to the UK Parliament. The current UK whistleblowing legislation – the Public Interest Disclosure Act 1998 – was originally introduced by way of a Private Member’s Bill, so these are particularly interesting developments.
Bill no. 1 – the Office of the Whistleblower Bill (HL Bill 66)
In January 2020, the co-Chair of the APPG, Baroness Kramer, introduced a Bill to the House of Lords for the establishment of an Office of the Whistleblower. The Bill is very short: it provides for the establishment of an Office of the Whistleblower whose duties will be the administration of arrangements to facilitate whistleblowing. These include:
- giving directions to and monitoring activities of “relevant bodies” (to be prescribed in regulations), including in relation to confidentiality and the use of disclosed information;
- acting as a point of contact for individuals who wish to make a disclosure;
- forming a panel of accredited legal firms and advisory bodies to advise and support whistleblowers;
- maintaining a fund to support whistleblowers, and providing financial redress to individuals whose disclosure is deemed by the Office to have harmed their employment, reputation or career.
The Bill is light on detail, and leaves some obvious questions unanswered – for example, who are the “relevant bodies”, how will the Office determine whether an individual whistleblower is entitled to financial redress, and where will the funds to compensate and support whistleblowers come from?
Bill no. 2 – the Public Interest Disclosure (Protection) Bill 2019-21
The second Private Member's Bill was presented to the House of Commons in February 2020, sponsored by Dr Philippa Whitford MP. The text of the Bill has recently been published and makes interesting reading, going far beyond the current provisions of UK law.
The Bill, which is entitled the "Public Interest Disclosure (Protection) Bill", is more comprehensive – and ambitious – than the first Bill. It is described as “a Bill to provide protections for whistleblowers; to create offences relating to the treatment of whistleblowers and the handling of whistleblowing cases; to establish an independent body to protect whistleblowers and whistleblowing, in accordance with the public interest; to make provision for that body to set, monitor and enforce standards for the management of whistleblowing cases, to provide disclosure and advice services, to direct whistleblowing investigations and to order redress of detriment suffered by whistleblowers; to repeal the Public Interest Disclosure Act 1998; and for connected purposes.”
This is potentially a set of far-reaching amendments to the current framework under UK law. We found the following proposals to be of particular interest:
- Expanded definition of protected disclosures: the Bill retains the current requirements for a protected disclosure to be a disclosure of information which, in the reasonable belief of the person making the disclosure, is in the public interest, and tends to show that one or more of the listed matters has occurred, is occurring or is likely to occur. The list of matters in respect of which protected disclosures can be made is expanded to add three new situations: reckless financial speculation; the gross waste or mismanagement of public funds; and a serious misuse or abuse of authority.
- Expanded definition of whistleblowers: the definition of whistleblowers is considerably expanded to cover not only a person who has made a protected disclosure, but also a person who (i) has been identified as having made a protected disclosure (whether accurately or not); or (ii) is considering making a protected disclosure (which raises the question as to how a person who falls within (ii) will be able to demonstrate that he or she was considering making a protected disclosure). The list of potential whistleblowers is also significantly expanded, and includes not only those in a work-related relationship, but also, for example, a third person connected to a whistleblower, a user of services, a pupil, a parent, an observer or passer-by, or “any other person”.
- New definition of “relevant authority”: this is defined as an employer, a body acting on behalf of a group of employers, a regulator or a public authority. The Bill provides that (i) a relevant authority must not subject a person to detriment as a result of that person being a whistleblower or being a close relative of a whistleblower; and (ii) must co-operate with the Whistleblowing Commission and handle protected disclosures in accordance with Whistleblowing Commission standards (see below).
- Detriment: the Bill provides an extensive list of examples of detriment. These include obvious work-related detriments, such as redundancy, dismissal, and reductions in pay, as well as others which develop that theme, such as failure to convert a temporary employment contract into a permanent one, sector-wide blacklisting and damage to a person’s reputation.
- Establishment of the Whistleblowing Commission: like the first Bill, this Bill provides for the creation of a new Whistleblowing body, called the Whistleblowing Commission. This Bill’s ambitions are far grander in scale than the first Bill’s. For example:
- the Commission’s principal duty is to protect whistleblowers and whistleblowing, and ensure concerns raised are investigated and acted on in the public interest;
- the Commission must set standards for relevant authorities for handling a protected disclosure, including requirements for preserving the anonymity of the whistleblower (note: interestingly – and surprisingly – confidentiality is not mentioned in this context), investigation methods, information to be provided to the whistleblower and information to be reported to the Commission;
- the Commission must also make provision for a whistleblowing scheme operated by a relevant authority to be accredited;
- the Commission is an investigatory body, and must conduct its own investigation into a protected disclosure made by a whistleblower in certain circumstances, including if the whistleblower has no access to an accredited scheme, if the whistleblower reasonably believes that they are being victimised or obstructed in their use of an accredited scheme, or if the Commission receives a report that a protected disclosure has not been handled in accordance with the standards it has set. This is, potentially, a vast number of investigations, and would require the Commission to be able to call upon significant – and skilled – resources;
- the Commission will have a number of powers:
- investigatory powers, including the power to require any person to provide any document or information relevant to the exercise of the Commission’s functions;
- (in certain circumstances) the power to enter premises and undertake inquiries;
- the power to issue an action notice to persons who have contravened the Commission’s standards for handling protected disclosures;
- the power to issue redress orders, where the Commission is of the opinion that a relevant authority has subjected a whistleblower (or the close relative of a whistleblower) to detriment. For these purposes, the Commission may assume that a whistleblower was subjected to detriment as a consequence of raising a protected concern, unless the relevant authority can prove otherwise;
- the power to issue civil penalties of up to £5,000 in the case of an individual and £50,000 in any other case.
- the Commission will be led by the Whistleblowing Commissioner, overseen by a board of directors, and will report regularly to Parliament.
- Creation of two new criminal offences of subjecting a whistleblower to detriment and failing to handle a protected disclosure adequately. The Commission is intended to be a prosecuting authority. These new offences appear to be intended to apply to both individuals and relevant authorities, and can result in a fine, or up to 18 months imprisonment, or both.
- Prohibition of non-disclosure agreements: the Bill provides that any agreement between a relevant authority and a person which purports to preclude that person from making a protected disclosure is void.
- Protection of whistleblowers against criminal or civil action: the Bill provides that it is a defence for a person prosecuted for any offence prohibiting or restricting the disclosure of information to show that the disclosure was, or was reasonably believed to be, a protected disclosure. In addition, there will be no civil cause of action against a person in respect of the making of a protected disclosure.
These wide-ranging provisions – although admirable in intention – may well present practical problems in implementation, not least because of the requirements to fund, set up and staff a Whistleblowing Commission which will, in theory, cover every employer, regulator and public authority in the UK, set the standards for handling all whistleblowings, investigate whistleblowings, award redress, impose sanctions and bring prosecutions. Nevertheless, it is clear that this Bill – if enacted – would be a step change from the current UK legislation and is something that all businesses should be aware of.
Next steps
The Bills still have a number of hurdles to get through and there is no certainty that either will enter into law. The date for the second reading of the first Bill has not yet been announced; the second reading of the second Bill will take place in the House of Commons on 25 September 2020. We will be monitoring developments closely and providing updates going forward.
Hogan Lovells can help you assess your current whistleblowing framework, so please contact us if you have questions on any of the points raised in this article or for more information on how we can help.
Authored by: Arwen Handley.
