The Office of the Whistleblower Bill [HL] (the bill) was introduced in the House of Lords on 20 May 2021. This is a private member’s bill sponsored by Baroness Kramer (Liberal Democrat).
The bill’s second reading is scheduled to take place in the House of Lords on 25 June 2021.
What is whistleblowing?
The term ‘whistleblowing’ is described in government guidance as a situation where a person, usually a worker, passes on information about wrongdoing. The wrongdoing will typically (but not always) be something that they have witnessed at work.
Whistleblowers have certain protections under UK legislation. To be protected by the law, whistleblowers must reasonably believe that passing on information is in the public’s interest and tends to show that one or more of the following has occurred, is occurring, or is likely to occur:
- a criminal offence;
- a breach of a legal obligation;
- a miscarriage of justice;
- danger to the health or safety of any individual;
- damage to the environment; or
- the deliberate covering up of wrongdoing in the above categories.
These protections are found in the Employment Rights Act 1996 (as amended by the Public Interest Disclosure Act 1998).
What would the bill do?
The bill would require the Government to establish an office of the whistleblower (the office).
The office would be responsible for the administration of arrangements to facilitate whistleblowing. It would have several powers, including:
- giving directions to and monitoring the activities of relevant bodies (to be prescribed in regulations) on issues such as confidentiality and the use of disclosed information;
- consulting on the amending or replacing of UK whistleblowing legislation;
- being a point of contact for individuals who wish to disclose information about wrongdoing;
- creating and maintaining a panel of accredited legal firms and advisory bodies to advise and support whistleblowers;
- maintaining a fund to support whistleblowers;
- providing financial redress to individuals whose whistleblowing is believed by the office to have harmed the individual’s employment, reputation or career; and
- publishing an annual report of office activities that would be laid before Parliament.
Before the office could be established, the bill requires a draft statutory instrument to be laid before Parliament and approved by a resolution of both Houses. If the bill receives royal assent, the office would need to be established within one year of the act being passed.
The bill would extend to the UK and come into force on the day which it is passed.
Why has the bill been introduced?
Baroness Kramer—the bill’s sponsor—described the reason for the bill:
Whistleblowers are vital to uncovering abuse at an early stage and […] deterring wrongdoing. But […] the Public Interest Disclosure Act 1998 and the responsibilities of the many regulators leave huge gaps, lack consistency and suffer from complexity and confusion. The consequence is that whistleblowers often suffer retaliation and find their careers are ended. Their only recourse is to an employment tribunal […] which can drag on for years, depleting their financial resources. Informal job black-listing is common. Some regulators follow up on information vigorously, but some still treat whistleblowing as complaints from troublesome people.
I propose an Office of the Whistleblower to end the fragmented approach to the problems, to sort out the often complex issues of how to best protect and support whistleblowers, and to give a safe point of contact for whistleblowers which can be clearly known and understood.
The bill incorporates recommendations made in a 2019 report by the all party parliamentary group (APPG) on whistleblowing, of which Baroness Kramer is co-chair. This said that the Public Interest Disclosure Act 1998, the UK’s whistleblowing law, had “failed to provide adequate and comprehensive protection to whistleblowers or the public”.
A more recent APPG on whistleblowing report in July 2020 described the UK’s whistleblowing law as demonstrating “fundamental inadequacies […] by failing to include a statutory responsibility to address the whistleblowing concerns or employers who retaliate”.
This is the second time that the bill has been introduced in Parliament. The original version of the bill was first introduced by Baroness Kramer on 28 January 2020. However, it fell before its second reading debate at the end of the 2019–21 parliamentary session.
The latest version of the bill includes an additional provision that would give the office the power to consult on amending or replacing UK whistleblowing legislation.
What parliamentary discussion has taken place?
Baroness Kramer has voiced concerns about the protection of whistleblowers in the UK for several years. This includes debates of the Financial Services Act 2021 and the Criminal Finances Act 2017 as they proceeded through Parliament.
During a committee stage debate of the Financial Services Bill, Baroness Kramer argued that an office of the whistleblower was needed because:
Whistleblowers need one place to go to find out where they stand, get support and advice, source the financial means to fight retaliation and, if necessary, get appropriate compensation for their damaged careers—for most whistleblowers, whistleblowing is career ending.
The Government did not support the proposal. It argued that establishing an office would duplicate the role of existing regulators and potentially cause confusion.
The issue was previously raised in 2017 during a committee stage debate of the Criminal Finances Bill. Baroness Kramer said that establishing an office would help to “enshrine the importance of whistleblowing” in the UK. Whilst drawing comparisons between the UK and US whistleblowing systems, she argued that the US saw whistleblowers as the “core tool for exposing wrongdoing”, compared to the UK where whistleblowers were “merely incidental”.
Despite some support during the debate, the Government did not agree to the establishment of a new office. It argued that the best bodies to investigate whistleblowing concerns would be the bodies that regulate the issue about which the concerns are being raised.
What support has the bill received?
The whistleblowing charity Protect welcomed the bill. Kyran Kanda, a parliamentary officer for Protect, argued that UK whistleblowing law is “failing to keep pace with the modern workplace”. The charity launched the Let’s Fix UK Whistleblowing Law campaign in April 2021. This calls for reform to the UK’s whistleblowing law.
[…] legislation is needed to clarify that whistleblowing should be viewed positively, like compliance[,] rather than negatively, like a form of corporate treachery that eventually unravels in costly, exhausting and embarrassing legal battles.
On 19 April 2021, the Government said it remained committed to reviewing UK whistleblowing legislation. It said the scope and timing of the review would be confirmed in due course. It said the review would be carried out “once sufficient time had passed for there to be the necessary evidence available to assess the impact of the most recent reforms”. This response mirrored several government responses made to parliamentary questions on the same subject since 2019.
The most recent whistleblowing reform took place in 2017. This saw the introduction of a new legislative requirement for certain prescribed persons to produce an annual report on whistleblowing disclosures made to them by workers. Prescribed persons include bodies such as the Bank of England and the General Medical Council, amongst others.
In response to the Government’s commitment, Protect argued that the review was “long overdue”.
- Jeremy Lewis et al, Whistleblowing: Law and Practice, 2017
- S Lombard et al, Corporate Whistleblowing Regulation: Theory, Practice, and Design, 2020
- Kate Kenny et al, The Whistleblowing Guide: Speak-Up Arrangements, Challenges and Best Practices, 2019
- Carmen R Apaza and Yongjin Chang, What Makes Effective Whistleblowing: Global Comparative Studies from the Public and Private Sector, 2020
- Emanuela Ceva and Michele Bocchiola, Is Whistleblowing a Duty?, 2018
Cover image by bluebudgie on Pixabay.