MPs have a special place in the hierarchy of whistleblowing. Legally they hold the position of a “Prescribed Person” – someone who a whistleblower can talk to, outside of their own organisation.
Johnny Mercer – the Veterans Minster, and former soldier – was approached by a number of whistleblowers who he says told him about alleged murders and cover ups by special forces in Afghanistan. Mr Mercer is now giving evidence to an independent inquiry at the Royal Courts of Justice and the Inquiry Chair Sir Charles Haddon-Cave wants to know the names of the people who blew the whistle.
Mr Mercer is refusing to reveal their identities and being threatened with a prison sentence for doing so.
It’s a chilling scenario that risks putting off potential whistleblowers from coming forward in the future. If you speak to your MP in confidence, because the danger of talking to your employer directly is too great, but your anonymity can’t be safeguarded – why put yourself in danger to start with?
The stalemate illustrates some important issues for whistleblowing.
Just as a journalist protects their sources, the MP says that he’s given assurances to the whistleblowers that he will shield their identities. Given the lack of legal protections available to armed forces whistleblowers, the risks of revealing names of those reporting wrongdoing by their colleagues are high. They have no remedy if they are sacked or treated badly for speaking up.
On the other side, Sir Charles believes that the “wall of silence” is obstructing the Inquiry’s ability to get at the truth behind serious allegations. The Chair has threatened to use the powers available to him, including imprisoning the former minister, if the names are not revealed. The Inquiry has put in place channels for individuals to come forward in confidence, can offer to protect witnesses, and shield them from prosecution.
There is a view that there must be limits to confidentiality when such serious issues are at stake, and perhaps Mr Mercer should not have given such assurances to his contacts. But this begs the question as to what he would have been told, had he not promised to protect the whistleblowers.
What we’re seeing is a split in how to get to the truth. There needs to be a balance between the rights and safety of whistleblowers against the understandable desire of families to uncover the facts about their death of their loved ones. Mr Mercer thinks you can get at the truth without exposing the whistleblowers, the Inquiry thinks otherwise Suggesting that Mr Mercer should choose sides, as Sir Charles has, underestimates this tricky balance.
The Inquiry may consider that it needs to gather further testimony. But does it need the names of individuals? If Mr Mercer could persuade those who revealed information to him to talk to the Chair in confidence, what does the name of the whistleblower add? Would a clear promise that no names will ever be placed in the public domain help? Alternatively, if the Inquiry wants to find out more, could Mr Mercer be a trusted channel to ask further questions and report the answers back?
Sharing information and raising concerns anonymously is a cornerstone to whistleblowing. Sending the wrong message in this area could have serious implications for future whistleblowers coming forward.
The stakes are high and getting this wrong may mean MPs hear less if they’re perceived to be untrustworthy. Worse, in future it may mean no one hears from armed forces in the field when serious wrongdoing occurs. We rely on whistleblowers – we need them to identify harm, warn of risks, uphold the rule of law, and ultimately to hold organisations and even governments to account.