In 1998, the UK’s Public Interest Disclosure Act became law. It has been praised by some as a model and criticised by others as inadequate. So what is the situation for UK whistleblowers, those employees who make disclosures about fraud, malpractice and other problems within organisations?
If whistleblowers are adequately protected against reprisals, employees are more likely to report problems, thus benefiting the public interest. If not, then problems will fester, and some whistleblowers may decide to take their concerns to journalists or activists. What is the state of play?
Ashley Savage’s book, Leaks, Whistleblowing and the Public Interest, provides answers to these and related questions, and the answers are far more complex than most people imagine. Savage looks at the legal situation of whistleblowing in the UK with amazing thoroughness. As well as analysing the laws in the light of their provisions and assessing them in the light of legal cases, he has used freedom of information (FOI) requests to obtain a large number of documents about how organisations deal with disclosures.
The legal status of whistleblowing, namely whether a disclosure is ‘protected’, depends sensitively on who makes the disclosure, to whom is it made, what it involves and how it relates to the public interest. The 1998 UK law is only the beginning. Also involved are various official secrets acts and other restraints on speech. Savage has separate chapters on whistleblowing in the civil service, in the security and intelligence services, and in the armed forces. In each of these domains, there are special circumstances, various precedents and a range of considerations. On top of this are the decisions of the European Court of Human Rights.
Savage provides a careful exposition of the issues and complications, and adds considerable critical commentary. He addresses what happens to whistleblowers when they report internally and when they disclose to journalists, and to what extent they are protected in a range of circumstances. He draws on court cases in the UK and relevant ones in the EU, and on media accounts of major whistleblowing cases. Finally, he makes recommendations for revising the law in the light of its various shortcomings.
Trying to understand the intricacies of UK whistleblower laws is not for the faint hearted. At one point, Savage notes that whistleblowers could hardly be expected to appreciate all the subtleties that a court might take into account in judging a disclosure. The information obtained by Savage through FOI suggests that policy makers do not appreciate all the subtleties either.
Focusing on major whistleblowing cases, namely the ones that go to court or are reported in the media, inevitably omits dealing with garden-variety cases, which are far more common. Savage’s book is aimed not at whistleblowers, but at policy makers.
Should a potential whistleblower consult Savage’s erudite study, she might be left with the impression that the complications are far too great to risk speaking out and relying on protection from the law. That the legal complexity and uncertainty are so great is one factor encouraging anonymous disclosures. If you don’t get caught, then legal protection is superfluous.
Savage would like whistleblower protection to be much stronger and more predictable, seeing this as a means of reducing unauthorised disclosures, especially anonymous leaking. Whether policy makers will pay any attention is another question.