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The response to whistleblowing by regulators: a practical perspective

Published online by Cambridge University Press:  02 January 2018

Ashley Savage and
Richard Hyde
Ashley Savage*
Affiliation:
Northumbria University and University of Nottingham
Richard Hyde*
Affiliation:
Northumbria University and University of Nottingham
*
Ashley Savage, Senior Lecturer in Law, School of Law, Northumbria University, 21–22 Ellison Place 2, Newcastle-upon-Tyne NE1 8ST, UK. Email: ashley.savage@northumbria.ac.uk. Richard Hyde, Lecturer in Law, University of Nottingham, Room C67, Law and Social Science, University Park, Nottingham NG7 2RD, UK. Email: richard.hyde@nottingham.ac.uk
Ashley Savage, Senior Lecturer in Law, School of Law, Northumbria University, 21–22 Ellison Place 2, Newcastle-upon-Tyne NE1 8ST, UK. Email: ashley.savage@northumbria.ac.uk. Richard Hyde, Lecturer in Law, University of Nottingham, Room C67, Law and Social Science, University Park, Nottingham NG7 2RD, UK. Email: richard.hyde@nottingham.ac.uk
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Abstract

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The Public Interest Disclosure Act 1998 provides protection for whistleblowers; it does not place statutory obligations on regulators to act in response to whistleblowing concerns. Using Freedom of Information requests as a research methodology, this paper seeks to examine how whistleblowing is approached by regulators and what happens when a whistleblowing disclosure is made. Forty-eight national regulators in a variety of fields and 408 county, district and unitary local authorities with responsibility for the regulation of food were contacted. The paper begins by considering the importance of whistleblowing disclosures and how they are protected in PIDA. The examination of the law reveals that several organisations with important regulatory functions are not prescribed, and this has the potential to create inconsistencies in the protection of whistleblowers. The bulk of the paper examines the results of the Freedom of Information requests. By examining the results of these requests, it was possible to show that there are a number of inconsistencies in the way in which regulatory agencies handle concerns. Several changes to practice are suggested in order to ensure that the whistleblowers receive appropriate treatment and that the concerns that they express can be properly addressed.

Information

Type
Research Article
Information
Legal Studies , Volume 35 , Issue 3 , September 2015, pp. 408 - 429
Copyright
Copyright © Society of Legal Scholars 2015 

Footnotes

*

Both of the authors are grateful for the comments of the anonymous reviewers. This paper is based on papers delivered at the Current Issues in the Use of Information in Regulatory and Enforcement Contexts: Global Uncertainties, Ethics and Rights Conference at the University of Derby on 24 October 2014, at a poster session at the Society of Legal Scholars Conference in Edinburgh on 3 and 4 September 2014, and at staff sessions at Northumbria University in May 2013 and December 2012.

1. Lewis, D ‘What is whistleblowing?’ In Lewis, D (ed) Whistleblowing at Work (London: Athlone Press) p 1.

2. See Employment Rights Act 1996 Pt IVA. There are several possible outlets for whistleblowing communication: first, internal reporting to an employer; secondly, externally to a regulatory or other enforcement body; thirdly, to a Member of Parliament; fourthly, to the media; or fifthly, direct to members of the public. The primary focus of this paper is on the second outlet, regulators.

3. Elliston, Fa et al (eds) Whistleblowing Research: Methodological and Moral Issues (New York: Praeger, 1985), cited in Jubb, P ‘Whistleblowing: a restrictive definition and interpretation’ (1999) 21 J Bus Ethics 77–94 at 91.

4. Near, J and Miceli, M ‘Organizational dissidence: the case of whistle-blowing’ (1985) 4 J Bus Ethics 1 at 4.

5. Senate Select Committee on Public Interest Whistleblowing In the Public Interest (Canberra: AGPS, 1994) para 2.2. Cited in Lewis, above 1.

6. Black, J ‘The decentred regulatory state?’ In Vass, P (ed) CRI Regulatory Review 2006/2007 (Bath: Centre for the Study of Regulated Industries, University of Bath, 2007) p 253.

7. Black, J ‘Enrolling actors in regulatory systems: examples from Uk financial services regulation’ [2003] Pub L 63 at 70.

8. As mentioned briefly by Black, ibid, at 69.

9. See generally, Bok, S Secrets: On the Ethics of Concealment and Revelation (New York: Vintage, 1989) p 210; Miceli, M and Near, J Blowing the Whistle: The Organizational & Legal Implications for Companies and Employees (New York: Lexington, 1992); and Vinten, G ‘Whistleblowing-fact and fiction: an introductory discussion’ in Vinten, G (ed) Whistleblowing – Subversion or Corporate Citizenship? (London: Paul Chapman, 1994).

10. See eg Bok, above 9; Mason, A ‘The relationship between freedom of expression and freedom of information’ in Beatson, J and Cripps, Y (eds) Freedom of Expression and Freedom of Information: Essays in Honour of Sir David Williams (Oxford: Oxford University Press, 2000).

11. Part IVA was inserted by the Public Interest Disclosure Act 1998, and the whistleblowing provisions of the Employment Rights Act 1996 are therefore often known as PIDA.

12. Both the Whistleblowing Commission (set up by Public Concern at Work) (The Whistleblowing Commission Report on the Effectiveness of Existing Arrangements for Workplace Whistleblowing in the UK (London: PCAW, 2013)) and the Department for Business Innovation and Skills (Department for Business Innovation and Skills Whistleblowing Framework Call for Evidence: Government Response (London: DBIS, 2014)) have recently consulted on reform to the handling of whistleblowing disclosures.

13. Vaughan, D ‘Autonomy, interdependence and social control: Nasa and the Space Shuttle Challenger’ (1990) 35 Admin Sci Q 225 at 228.

14. Stafford, Sl ‘Should you turn yourself in? the consequence of environmental self-policing’ (2007) 26 J Pol'y Mgmt & Analysis 305.

15. The Mid-Staffordshire Hospitals Inquiry identified failures in both inspection processes and the way in which complaints from whistleblowers were handled: Report of the Mid-Staffordshire NHS Foundation Trust Public Inquiry, HC 89-1 (2013).

16. Hood, C, Rothstein, H and Baldwin, R The Government of Risk: Understanding Risk Regulation Regimes (Oxford: Oxford University Press, 2001).

17. See Black, J and Baldwin, R ‘Really responsive risk-based regulation’ (2010) 32(2) Law & Pol'y 181 at 198: ‘risk-based regulation … is a strategy that requires a significant amount of information’.

18. See Beaumont, P ‘The limits of inspection: a study of the workings of the government wages inspectorate’ (1979) 57 Publ Admin 203.

19. Black, above 7, at 70 identifies ‘individuals within the firm, including compliance officers, executives, back office and front office staff’ as potential regulatory actors.

20. Indeed, the importance of whistleblowing to support regulatory practice has been globally recognised in the context of the regulation of corrupt practices, which are highly likely to be hidden. See The United Nations Convention on Corruption 2003 Art 2 concerning the establishment of anti-corruption bodies that allow individuals to report corruption. Article 33 provides protection for those who report corruption to ‘competent authorities’. For commentary, see Carr, I and Lewis, D ‘Combating corruption through employment law and whistleblower protection’ (2010) 39(1) Indust L J 52–81. See also G20 Anti-Corruption Action Plan, Action Point 7 Protection of Whistleblowers, G20 Seoul, 2010.

21. See eg Cranston, R Regulating Business: Law and Consumer Agencies (London: Macmillan Press, 1979); Hutter, B The Reasonable Arm of the Law (Oxford: Clarendon Press, 1988); Hawkins, K Law as Last Resort: Prosecution Decision-Making in a Regulatory Agency (Oxford: Oxford University Press, 2002).

22. Black, above 6, p 260. For detailed discussion of regulatory capacity, see Black, above 7, at 72–82.

23. Black, above 7.

24. Pennington, H The Public Inquiry into the September 2005 outbreak of E. coli O157 in South Wales (Cardiff: Welsh Government, 2009) p 6.29ff.

25. Black, above 6, p 262.

26. Etienne argues that regulators may in some cases seek to exclude individuals, such as whistleblowers, from governance networks for fear that interventions could damage existing network relationships, particularly with businesses. See Etienne, J ‘The politics of detection in business regulation’ (2014) J Pub Admin Res & Theory, Advance Access, available at doi:10.1093/jopart/muu018, at 24.

27. Near, J and Miceli, M ‘Effective whistle-blowing’ (1995) 20(3) Acad Mgmt Rev 679 at 679.

28. Black, above 6, p 260.

29. Examples of detrimental treatment include demotion or failure to promote.

30. Section 43B Pt IVA ERA.

31. As per s 43B Pt IVA ERA.

32. Section 43C Pt IVA ERA.

33. Section 42C Pt IVA ERA. However, employers are not required to put in place a whistleblowing policy or procedure.

34. Section 43E Pt IVA ERA.

35. Section 43F(b) Pt IVA ERA.

36. As per s 43B Pt IVA ERA.

37. Where a disclosure is in the public interest, this disclosure will not amount to a breach of confidence.

38. The words of Lord Nolan repeated in the British Standards Institute Whistleblowing Code of Practice (London: BSI, 2008) p 5.

39. See http://www.cfoi.org.uk/pidconsult97.html#how (accessed 4 January 2014) at 3.6.

40. Ibid.

41. See eg Public Interest Disclosure (Prescribed Persons) Order 1999 (as amended).

42. The split of the Financial Services Authority into the Financial Conduct Authority and the Prudential Regulation Authority and the addition of a number of professional healthcare bodies by the Public Interest Disclosure (Prescribed Persons) (Amendment) Order 2013 accounts for this increase.

43. See Public Interest Disclosure (Prescribed Persons) (Amendment) Order 2013/2213 art 4.

44. A Savage ‘Legislative flexibility versus procedural rigidity: a comparison of the UK and Canadian approaches to public service whistleblowing protection’, paper presented to 40th World Congress of the International Institute of Sociology, New Delhi, India (2012).

45. Section 43G(3)(a) ERA 1996.

46. See Dudin v Salisbury District Council (ET, Case Number 3102263/03, 20 February 2004).

47. Although D Lewis ‘A survey of whistleblowing/confidential reporting procedures used by persons prescribed under the Public Interest Disclosure Act 1998’ [2007] Commun L 125 examined the procedures put in place by prescribed persons, his study did not focus on the role played by these disclosures in regulation.

48. See Savage, A and Hyde, R ‘Using Freedom of Information requests to facilitate research’ (2014) 17(3) Int J Soc Res Method 303; and Savage, A and Hyde, R ‘Local authority handling of Freedom of Information requests: lessons from a research project’ (2013) 19(2) Web J Current Legal Issues.

49. See eg this search of Newark and Sherwood District Council's website, http://www.newark-sherwooddc.gov.uk/search/search/C.view=nsdc/results?q=whistleblowing&s=&sa=0&hf=10 (accessed 7 January 2014), which shows a number of employee policies that relate to whistleblowing, but no information that is aimed at an external person seeking to make disclosure to the council as a regulator.

50. See eg this search of Nottingham City Council's website, http://gossweb.nottinghamcity.gov.uk/googlesearch/results.htm?q=whistle%20blowing%20procedure#gsc.tat=0&gsc.q=whistleblowing&gsc.sort= (accessed 7 January 2014), which shows whistleblowing mentioned in the context of safeguarding, but no policy regarding whistleblowing to the council in its regulatory function.

51. See http://www.nao.org.uk/ (accessed 7 January 2014).

52. See http://www.nao.org.uk/contact-us/contact-us/whistleblowing-disclosures/ (accessed 7 January 2014).

53. See eg http://food.gov.uk/enforcement/regulation/whistleblowing (accessed 7 January 2014).

54. Although, of course, public complainants may suffer detriment following a complaint, and local authorities must take action to prevent this happening in order to enrol the public into regulatory networks. However, such detriment is unlikely to be employment detriment so falls outside the protection afforded by PIDA.

55. Miceli and Near, above 4, at 75.

56. Nine regulators reported receiving no disclosures between 2005 and 2010 (Ofcom, the Care Council for Wales, the Office of Fair Trading, HM Treasury, the Water Industry Commissioner for Scotland, the Scottish Ministers, the Certification Officer, the Children's Commissioner, and the Standards Commissioner for Scotland).

57. According to the response from the CAA, industrial action, which ‘tends to prompt a flurry of reports’, may explain some of the rise in reports.

58. While Trading Standards departments cover similar ground, and therefore could have received disclosures about non-compliance with consumer law, it is surprising that no disclosures were directed to the OFT. The nil return may therefore be an artefact of a restrictive definition of whistleblowing, combined with a greater focus on rewarded, rather than unrewarded, disclosure.

59. Food Standards Agency Annual Report of Incidents 2012 (London: Food Standards Agency, 2012) p 26.

60. See Public Concern at Work Whistleblowing – The Inside Story (London: PCAW, 2013).

61. It will be difficult for a worker to argue that they have suffered a detriment or dismissal for making a disclosure to a prescribed regulator or other individual under the terms of the Public Interest Disclosure Act 1998 where contact between the communicator and recipient cannot be proven. It is recognised that there are practical risks associated with workers raising concerns on a confidential basis. It may be impossible to protect the identity of an individual working in a small organisation or where they are one of only a few privy to the substance of the concern raised. Subsequent investigation and enforcement action may eventually identify the source and the recipient may have a statutory obligation to report a criminal offence.

62. Calland, R and Dehn, G Whistleblowing Around the World: Law, Culture and Practice (Cape Town: ODAC, 2004) p 8.

63. Rains, S and Scott, C ‘To identify or not to identify: a theoretical model of receiver responses to anonymous communication’ (2007) 17(1) Commun Theory 61 at 74. For the practical difficulties associated with anonymous disclosures, see Calland and Dehn, ibid, p 8.

64. Noting that they do not deal with such disclosures, because they ‘appear to be (i.e. Anon) from ex members of staff, we do not keep a separate record of them or record them as disclosures. In general they are from staff with a grudge.’

65. Similarly, both Monitor and the Tenant Services Authority (TSA) received disclosures relating to employment disputes.

66. Defined in Food Hygiene (England) Regulations 2006 reg 5(6).

67. See eg Hawkins, above 21.

68. For a more detailed discussion of such sharing, see Hyde, R and Savage, A ‘Cross-border concerns: perils and possibilities’ (2013) 2(3) E-J Int'l & Comp Labour Stud 116.

69. Camp, C ‘Openness and accountability in the workplace’ (1998) 149 New L J 46.

70. Consideration could be given to the introduction of a statutory duty to refer disclosures received to regulators with an appropriate capacity to deal with them, as exists in Australia. This would put on a statutory footing multi-regulator networks where the capacity to gather information from enrolled whistleblowers may be separated from the capacity to respond to the disclosed risk.

71. Lewis, D ‘The Council of Europe Resolution and Recommendation on the Protection of Whistleblowers’ (2010) 39(4) Indust L J 432 at 432.