Hillsborough Law makes an Office of the Whistleblower more important than ever.

In a very real sense, the UK has no proper law of Whistleblowing. There is, of course, section 43B of the Employment Rights Act 1996 (introduced by the Public Interest Disclosure Act 1998), which gives a measure of protection from detriments to workers and employees who make what are termed “public interest disclosures”, but that provision treats such detriments as essentially employment matters, does not use the word “Whistleblowing” even once, does not extend beyond workers and employees, is highly technical, puts all sorts of difficulties in the way of workers and employees who make public interest disclosures, focusses exclusively on the employment context, and rarely, if ever, leads to any wider investigation of the substantive matters about which the worker or employee makes a disclosure.

A properly functional Whistleblowing Law would give full and effective protection to all whistleblowers, whether or not they were workers or employees, and would ensure that concerns raised by Whistleblowers were fully investigated with appropriate action taken to address the wrongs in respect of which the whistle is blown. The existing law does none of these things. That is why WhistleblowersUK is pressing for the creation of an Office of the Whistleblower and is supporting the Whistleblowing Bill which is currently before the House of Commons.

There is also currently before Parliament the new Public Authority Accountability Bill, which will give legislative form to the Hillsborough Law, introduces new obligations of transparency and frankness on public authorities and officials, leaving them with nowhere to hide from public scrutiny of their actions. These are aims which WhistleblowersUK, with its broader commitment to transparency and accountability, fully supports.

However, there is one little-remarked feature of the Public Authority Accountability Bill which is of huge significance in advancing the cause of Whistleblowers. For the first time in legislation, the Bill will give explicit recognition to “Whistleblowing”  - a word which has hitherto not featured in the legislative lexicon.

Section 2, which requires all public authorities to have and publish a Code of Ethics, prescribes that the Code will have to provide “reasonable protection for Whistleblowers.” Section 5(1) states:

“'Whistleblower' means a person who makes a disclosure of information which, if made by a worker, would be a qualifying disclosure pursuant to section 43B of the Employment Rights Act 1996”.

Consider this for a moment: it takes the present concept of public interest disclosures and extends it beyond the employment law context – extending whistleblower protection to all who blow the whistle, many of whom will be outside the scope of employment law. If the Bill passes, a Rubicon will have been crossed – Whistleblowing as a legal concept will have broken out of the ghetto of employment law.

However, any rejoicing at this breakthrough must be tempered by an understanding of the limited scope of the proposed reform: first, it only applies where the potential wrongdoer is a public authority within the scope of the Bill; second, such protection as is given arises only indirectly through the existence of a Code of Ethics; third, the Bill has no teeth to deal with breaches of the Code of Ethics and, fourth there is still no mechanism for investigating and following up the wrongdoing which a whistleblower may have uncovered.

For these holes to be plugged there remains a clamant need for the setting up of the Office of the Whistleblower, to extend the scope to include the private as well as the public sector, to provide real legal teeth, and to ensure that wrongdoing is fully investigated and that wrongdoers are brought to account.

With the Hillsborough law, whistleblowing protection has broken out beyond the narrow confines of employment law, but, we need to have a fully functioning Office of the Whistleblower to ensure that we carry through the promise offered by this significant beginning.

Iain G. Mitchell KC

Chair, Legal Panel,

WhistleblowersUK.