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Protect – a look back over 25 years

As Protect marks its 25th anniversary this month, Guy Dehn,  founding Director of Public Concern at Work as we were formerly known, shares his thoughts on our history, PIDA and whistleblowing then, and now.

Back in 1993 whistleblowing was such an unpopular activity that the Charity Commission initially ruled there could be no public benefit in our offering confidential advice to people concerned about wrongdoing at work.  Whistleblowers were assumed to be liars and malevolent traitors at worst; sneaks or losers at best.

1993 was a very different world in other ways too.  Then, only a handful of people had heard of the internet, let alone had access to it: so no emails, no smartphones, no social media.  There was no Parliament in Scotland, nor an Assembly in Wales.  There was no voluntary code on freedom of information, not to mention a statutory right.

The case we made for a new approach to whistleblowing was based on a run of disasters and scandals, including the capsizing of the ferry the Herald of Free Enterprise, the explosion at the Piper Alpha oil rig, the Clapham Rail Crash, the collapse of the bank BCCI and the pillaging of Mirror Group’s pension fund by Robert Maxwell.  Deep in the reports of the public inquiries it was clear that workplace cultures were a serious part of the problem – some inquiries described an autocratic environment where nobody had dared to speak up, while others found a worker had tried to sound the alarm but had been ignored, sidelined or sacked.

Our starting point was that if someone was prepared to tell friends or family about wrongdoing in their workplace, there was good reason they should be encouraged to raise that concern openly.  While we believed such concerns should ideally be raised in the workplace if practicable, we were also clear that disclosures to regulators, the police and the wider public could also be justified.

Beyond this, we knew we had much to learn before we would have a good idea how a new approach to whistleblowing might work in practice.  The research we undertook for the series Speaking up by Sector, the educational and policy work we did and the training courses we ran were all important in our learning, but the free helpline was critical to how our thinking developed.

In the early years of the helpline, clients’ concerns included financial scams, dodgy food, tax frauds, safety risks and corruption, and covered schools, banks, fairgrounds, charities, public bodies, and companies large and small. We helped clients raise concerns internally, with regulators and the police; more publicly, we went to court to set aside a gagging injunction to fight libel suits and we briefed the media.  In one case we had to turn away the MoD police who had turned up demanding to see a client’s file; and on another we secured the first retraction and a fulsome public apology in the UK from an internet provider after false and damaging rumours about us were circulated to employment lawyers.

Inevitably many of the concerns raised through our helpline turned out to have substance and a fair few showed that the wider legal and regulatory cultures were often as much a part of the problem as the solution.  Two early cases stand out – helping Adrian Schofield halt a million pound theft at a paper mill, saving several hundred jobs in the north west; and assisting nurse Judy Jones blow the whistle on the award-winning boss of a care home who was sexually abusing blind residents and subsequently jailed.

In 1995 the Nolan Committee on Standards in Public Life strongly backed our approach, pointing out that unless public servants felt able to raise whistleblowing concerns openly, they would stay silent or leak the information anonymously, fuelling the culture of sleaze.

At the same time two independent-minded backbench MPs – Labour’s Tony Wright and the Conservative Richard Shepherd – asked us and the Campaign for Freedom of Information to draft a Whistleblower’s Protection Bill.  The MPs said that if we could help they would want to follow our recommendations but if we couldn’t, they would do the best they could without us. As to how to structure the draft law, we decided to adopt the principles on public interest disclosures developed by judges as the template to encourage and protect whistleblowing.

Our initial proposals were widely welcomed on consultation.  In 1996 Labour’s Don Touhig introduced a revised draft after he won the ballot for Private Members’ Bills. His Bill completed its passage through the House of Commons but, lacking Government support, got no further.  Nonetheless it had shown there was strong support across Parliament for a whistleblowing law and this prompted Tony Blair to pledge that a future Labour Government would pass such a law.  The need for a new culture had again been highlighted by Lord Justice Scott’s Arms to Iraq Inquiry which revealed that the Government machine had not only ignored a whistleblower’s letter but then sought to keep its existence secret from the courts when Matrix Churchill was prosecuted for breaching a UN embargo.

Weeks after the election of the new Labour Government in 1997, the Tory MP Richard Shepherd decided to reintroduce the Public Interest Disclosure Bill after he won a place in the ballot. Within five years of the charity’s launch in 1993,  and far sooner than we had ever imagined, the Public Interest Disclosure Act was on the statute books.  Over the following decade we were able to help influence how the legislation took root in workplaces, was promoted in policies and applied in the courts.

The great success of the legislation has been to help change the culture towards whistleblowing.  I think it was able to do this because it protects concerns raised internally and not just outside, because it applies to all workplaces in the public, private and voluntary sectors, and because – as much by accident as design – workers, employers, unions, auditors, lawyers, regulators, professional bodies, the courts, the media and Parliament all have competing roles and stakes in making it work.

But the legislation is far from perfect. I regret that PIDA’s provisions on gagging clauses and official secrecy have not yet been properly tested and I still wonder whether it was a mistake to omit Tony Wright’s suggestion that whistleblowing cases should be heard not by an employment tribunal but a specialist PIDA one. Had PIDA fulfilled my hopes and expectations, it would have done much more to enable the alarm to be sounded effectively on the coming financial crisis a decade ago.  And in the wondrous NHS – even though a thousand whistles are successfully blown on patient safety issues every hour – work still needs to be done to reassure staff that there is an open, accountable culture and to give those in authority the confidence to address genuine concerns.

As to the charity, now known as Protect, many congratulations on your 25th birthday.  I trust that you will never lose sight of your public interest bias; I hope that you will champion alternatives to anonymity whenever people speak up; and I pray that – whatever brickbats it may bring – you have the strength to continue to be a self-funding charity.