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A governance report into local authorities by the National Audit Office (NAO)  has found one in six councils do not have their whistleblowing policies easily available on their websites,  and of the policies that the NAO could find –  24% were out-of-date.

The report, Local Authority Governance, published 15 January, acknowledged the challenges facing local authorities due to increased cuts and the report states, ‘Governance arrangements have to be robust in this challenging context or this creates a risk that authorities will not be able to deliver their objectives.’

Protect’s acting Chief Executive, Jon Cunningham said, “We work with many local authorities across the UK. Many come to see the benefit of our work and whistleblowing as a risk governance tool only after a particularly unsavoury scandal has hit the press. We would like to be working with more local authorities to prevent risk and problems and those negative headlines in the first place. Local authorities are accountable to the communities they serve, and it’s not good enough to be providing out of date information on whistleblowing or failing to be transparent with no whistleblowing information on council websites.”

He added, “We know local authorities are under unprecedented pressure with reduced budgets, but with these challenges, as the NAO report acknowledges, comes increased risks to services. Now more than ever, local authorities need to sit up and realise whistleblowing works and can keep services and the community it serves, safe.”

 

 


Protect Head of Policy Andrew Pepper-Parsons attended conference Exposing Secrets: the past, present and future of U.S. National Security Whistleblowing and Government Secrecy which brought together academics, legal experts, journalists and a few US national security whistleblowers to debate the issues.

The two-day conference on US national Security whistleblowing aimed to take a historic look at national security whistleblowing to see if fresh perspectives could be found. 

Why does history matter?  For me this was an interesting approach as the cases of prosecutions of national security whistleblowers are low in both the US and UK. Five in the US since 2015, and the last prosecution brought to trial in the UK was 2006.[1]  The legal frame work in both countries creates an offence with no public interest defence. Also in the US and the UK, the classification of secrets is held by the executive (in the UK this would be Ministers, in the US, the President) and  no way challenge abuses and decisions over what should be classified.

This all creates a secret space where the intelligence community operates, where there is little information, especially in the UK, about how these agencies operate.  On top of that we know from whistleblowing best practice in industries and sectors that are more open, that whistleblowing arrangements that lack an independent external route tend to be more flawed. A good example of an external route in the UK is the Financial Conduct Authority regulator which insists they are included as a route for whistleblowers to raise concerns with.

History lessons

History can show us the development beyond the cases that have been brought.  Sam Lebovic, historian of American politics and culture, pointed out that the current system sets the rules of game of disclosing national security secrets between the government and the press but leaves the whistleblower out in the cold.  The Government have strong legal powers to pursue whistleblowers who reveal information to the press, but these laws are not used against the press themselves, due to the First Amendment giving them a strong defence as a publisher.  The First Amendment (Amendment I) to the United States Constitution prevents the government from making laws which respect an establishment of religion, prohibit the free exercise of religion, or abridge the freedom of speech, the freedom of the press, the right to peaceably assemble, or the right to petition the government for redress of grievances. It was adopted on December 15, 1791, as one of the ten amendments that constitute the Bill of Rights.

Such protection  is not available to the whistleblower who is left rather exposed, relying on the journalist to protect them as a source while also hoping the US Government doesn’t independently discover who they are.  An interesting area of research would be to look at the development of these type of measures in the UK to understand how we got to our  current legislation  – for example it would be interesting to examine the historical development of the Official Secrets Act since it was first introduced in 1911.

Can journalists play a role?

Edward Snowden, the NSA whistleblower currently exiled to Russia, who skyped in to the conference,  adds to this by stating that the current system is a reflection of the incentives in place for government.  Their interest is to avoid political embarrassment rather than to hold the intelligence community to account. This informed his decision to use journalists rather than internal routes with an organisation because he had seen Thomas Drake and John Kiriakou both suffer costly legal fights and prison for using these mechanisms.   Thomas Drake, a former senior executive at the National Security Agency, blew the whistle on massive multimillion dollar fraud, waste and abuse, the failure of 9/11, as well as the widespread violations of the rights of citizens through secret mass surveillance programs after 9/11.  Former CIA analyst John Kiriakou was the first US government official to confirm that the US used waterboarding to interrogate terrorism suspects. In 2007, Kiriakou disclosed to ABC News the CIA’s waterboarding of Abu Zubaydah. In 2012, Kiriakou was charged and prosecuted for revealing classified information to the media and in 2013 was sentenced to 30 months in jail.

Snowden believes an independent panel of journalists should be used as an independent mechanism for decisions of disclosure.  This is probably unworkable as journalists would be accused of being biased towards disclosure but Snowden is not wrong on wanting to create a more independent system.

The introduction of a public interest defence and an independent classification system is possible. The Tshwane Principles which is a set of global principles developed by civil society academics and practitioners on balancing the need for government’s to protect sensitive information against the public’s right to know. This is the best route to create a confidential rather than secret space for Government to operate when it comes to national security.

[1] US: https://www.theguardian.com/us-news/2015/mar/16/whistleblowers-double-standard-obama-david-petraeus-chelsea-manning and https://theintercept.com/2018/06/26/reality-winner-plea-deal/ UK: https://www.theguardian.com/media/2008/jan/09/pressandpublishing.freedomofinformation


Protect attended a public meeting of the All Party Parliamentary Group (APPG) on Whistleblowing at Westminster chaired by Baroness Kramer along with many whistleblowers,  including those with experience in education, care, the NHS and other public services.

Attendees were generally in agreement about the principles of whistleblowing and that greater support for whistleblowers is needed. To this end, Baroness Kramer led a discussion about how attendees had been let down by the law, and what improvements they saw as being necessary. The following issues were raised:

• Extending the cover of whistleblowing law The Public Interest Disclosure Act (PIDA) so it covers more than workers/employees eg school governors, judges and other ‘office holders’, parents, volunteers and students as well as foster parents

• Negative feelings towards the term ‘whistleblower’ were expressed, and the proposal ‘public protector’ was raised. There was some dispute on this as changing the name does not change the action. The benefit of the term whistleblowing is that it is widely recognised.

• A lack of prompt or appropriate response from regulators; regulators can appear unaccountable.

• A public fund to cover whistleblower legal fees was discussed as they deserve to have a fair trial and this is often impossible if they are unrepresented. Whistleblowers act in the public interest and therefore should be publically funded.  The group heard how an individual was at risk of losing their home due to funding legal fees.

• The use of expert industry panels to support or dispute claimants disclosures as being in the public interest and valid as they demonstrate wrong doing. The panel opinion could then be submitted to an Employment Tribunal  or other forum for judgement. ET does not have industry specific knowledge to analyse if wrongdoing is present or if concerns were reasonably held. Panels could sit within professional bodies and would operate a peer review system in analysing disclosures.

• Employment Tribunals were criticised as not understanding the experience or pressures facing whistleblowers. It was suggested that an Office of the Whistleblower could perform this role, or provide significant support in preparation and throughout hearings.

• Holding organisations to account. Two approaches were suggested, firstly there should be consequences for organisations who do not respond effectively to concerns. Secondly, there could be a ‘kitemark’ system for organisations that respond well to concerns, and treat whistleblowers with respect. A further idea to increase transparency would be requesting organisations to disclose the amount they have spent defending whistleblowing claims.

• Organisations should be held to their own whistleblowing policy, breaches of which could be considered contractual breaches.

The session ended on a positive note, attendees felt it to be the beginning of a productive and enthusiastic project. Baroness Kramer encouraged written submissions to the APPG to continue, as work is under way to consolidate information from those involved in whistleblowing to form recommendations for legislative reform.

Protect is keen to support the APPG’s research and proposals, and improve  the landscape for whistleblowers and the public they protect.

 

Please take the APPG whistleblowing survey if you are a whistleblower

 

By Protect Adviser, Laura Fatah


Academics at Middlesex University have presented Helen Evans, former Global Head of Safeguarding at Oxfam, with their UK Whistleblower Award for 2018.

In 2018, Helen blew the whistle on the systemic sexual exploitation and abuse perpetrated by Oxfam aid workers. Her revelations were one of the biggest charity scandals in recent years.

While Helen worked at Oxfam GB she pleaded for more safeguarding investment and quit in frustration in 2015 when her request fell on deaf ears. She took her concerns to the Charity Commission, yet despite the seriousness of her revelations, they took little action. She went public with a Channel 4 news interview in 2018 when the matter came to national attention following a Times investigation. Her disclosures, and those from others, led to two public inquiries by the International Development Select Committee and Charity Commission.

She said, “The decision to whistleblow was the hardest decision of my life. The impact on my life and my family’s life has been considerable. Yet it doesn’t come close to the devastating impact of sexual abuse perpetrated by aid workers.

“Despite what’s happened I still believe in the charity sector and have confidence the vast majority of aid workers are there for all the right reasons. The sector though must change, and never again approach safeguarding with such complacency”.

Helen has recently taken up post as Chief Executive of a medical charity and has chosen to share today’s Award with the NGO Safe Space. This organisation was founded by Shaista Aziz and Alexia Pepper de Caires in March 2018 to gather testimonies on sexual harassment, exploitation and abuse in the humanitarian aid and international development sector, to provide solidarity to survivors and victims, and to seek accountability and redress.

Professor David Lewis, Head of the University’s Whistleblowing Research Unit, said, “Helen’s persistence and courage were key factors in her winning this Award”.

Protect would also like to congratulate Helen as well as thank her for speaking up to stop harm.