Regulators are independent bodies tasked with regulating or supervising an industry, profession, or particular area, such as the environment. If a whistleblower can’t disclose their concerns directly to an employer, or they have been ignored, or are not satisfied with their response, then they can escalate concerns to a relevant regulator to investigate. But, if your employer is a regulator, who do you raise concerns to?
The number of press stories we read about employees of regulators hints at the challenges they face raising concerns internally. In May 2023, Channel 4 revealed claims of toxic culture, bullying, harassment and discrimination within the Equality and Human Rights Commission (EHRC), the regulator for equality and non-discrimination laws in the United Kingdom. It also reported that staff were concerned about political influence in the EHRC’s approach to gender recognition. Channel 4’s report relied on the accounts of anonymous employees and ex-employees of the EHRC and was broadcast amid an ongoing investigation into the EHRC’s chair, Baroness Faulkner. In response, the EHRC said that they ‘treat allegations of bullying and harassment with the utmost seriousness’, while Baroness Faulkner stated that she would be ‘cooperating fully with the investigation’ and has ‘every confidence in being exonerated’.
The investigation was closed in October following an independent legal expert review of the handling of complaints about Baroness Faulkner. The EHRC reported that their Board will be conducting a full review of the handling failures, as well as a review of their rules and governance. They have also said that they will work through any outstanding issues with all parties in confidence.
In January 2022, three anonymous whistleblowers from the Environment Agency (EA), the environmental regulator for England, also spoke to the press. The report revealed that cuts to the Environment Agency’s budget were leaving staff unable to do their jobs. Whistleblowers then revealed that, following the initial press coverage, the EA’s Chief Executive James Bevan wrote to staff to warn them against speaking to the media and made clear that he would sack anybody seen to be openly criticising the agency.
Both cases illustrate something we see frequently on our legal Advice Line; that in the absence of an obvious regulator, whistleblowers working for regulators are more likely to go to the press with their concerns. The Environment Agency and EHRC whistleblowers could have escalated their concerns to a relevant Government Minister, Select Committee or an MP/MSP. However, government bodies can be hesitant to interfere in the works of regulators – that are supposed to be independent bodies. They tread carefully in order to avoid criticism that they are obstructing the regulator’s independence.
Additionally, the EA and EHRC whistleblowers may have faced resistance if they approached a minister or an MP on account of their conflicting political agendas. On the other hand, if an MP or a minister decides to publicly expose a concern, they may re-frame it to push a particular agenda which can distract from the whistleblower’s original concern.
A third, and fundamental, limitation of escalating a concern to an MP, MSP or minister is that, whilst they have the power and resources to publicly expose a wrongdoing, they have no powers to investigate concerns.
The EA and EHRC whistleblowers could also have taken their concerns to a Select Committee. However, their concern may have similarly conflicted with the group agendas. Their disclosures may also have given rise to press disclosures with the potential to hinder future investigations.
Protect is calling for regulators to implement effective Speak Up arrangements that support their staff with raising concerns and protect them from victimisation. When internal systems work better, there is less need to raise concerns externally. Protect is proud to have trained the whistleblowing teams at several of the UK’s main regulators. We believe that internal training is key and so is a regular review of policies and procedures, a service that we also provide through our Whistleblowing Benchmark.
As the UK’s leading whistleblowing charity, we encourage people to continue to speak up to stop harm. Our legal Advice Line offers individuals bespoke advice on their options, rights, and legal protections when speaking up.