Protect Legal Adviser, Isaac Heather, highlights the significant gaps in UK law when it comes to protecting free expression.
As we continue to see tragedy unfolding in Ukraine, much of our day-to-day activity rightly feels utterly diminished in both its relevance and its significance.
One facet, one truth, one value that has had its fundamental significance once again highlighted though is the importance of the right to freedom of expression.
Blink and you’ll miss another series of reports on new forms of censorship, fresh penalties for challenging the narrative, and increased attempts to limit the free exchange of information, views, and ideas. Among many, many other things, Russia’s invasion of Ukraine can give us pause to reflect on the foundational role free speech has in contributing to a healthy society and a healthy democracy.
Just as there are profound links between free expression and democracy, between free expression and the rule of law, at Protect we believe that so too is there a fundamental link between freedom of expression and whistleblowing. And that just as freedom of expression is important for us all in many contexts, so is whistleblowing critical at every level.
By its very nature, whistleblowing involves speaking up about wrongdoing in such a way that people or organisations may wish to interfere with the act of expression. Nobody likes to receive bad news. It is never easy to admit mistakes and so there can be a temptation to shoot the messenger rather than tackle the message. In many instances this will be particularly significant as there may be a power imbalance between a whistleblower and those wishing to stop them speaking up, be that a manager, senior individual, or the organisation responsible for employing the whistleblower itself.
The true value of all free expression rights is that they help to address power imbalances to try to stop those speaking up simply being silenced by a more powerful party, be that a senior manager, a large company, or a corrupt government. This is true of whistleblowing protections too. It is therefore no surprise that whistleblowing can be, and is, understood as an exercise of the right to freedom of expression.
This is not just a theoretical point. In the UK, people have a human right to freedom of expression (enshrined in Article 10 of the Human Rights Act) and an employment right not to be mistreated for whistleblowing (found in PIDA – the Public Interest Disclosure Act). Often, a worker seeking to rely on their whistleblowing rights may only be interested in the scope of PIDA. Some individuals though are not straightforwardly protected by PIDA, including ‘office holders’ like judges. However, in 2019 the UK Supreme Court extended PIDA protection to judges holding that they should be granted whistleblowing protection in order to give effect to their right not to be discriminated against in the enjoyment of their right to freedom of expression under Article 10 and Article 14 of the European Convention of Human Rights.
This is a welcome acknowledgement from the country’s highest judicial authority that whistleblowing engages the right to freedom of expression and that there may be instances where an individual whistleblower’s legal position is enhanced by human rights considerations. Whether this could have broader implications for others who currently lack protection remains to be seen.
Whistleblowing is about more than the individual who speaks up though. Whistleblowing is about potential wrongdoing being highlighted, harm being prevented or exposed, and the public interest being served. We see this regularly in the advice line, whether it’s raising concerns about health and safety in a care setting or monetary malpractice in a financial services firm. The links between freedom of expression, whistleblowing, and the public interest are clear and significant. And that’s something that’s true at every level, whether it’s exposing high level corruption or smaller-scale harm in an everyday workplace.
Where does this leave us? Perhaps it leaves us acknowledging that there is much to do to improve the protections for whistleblowers in the UK while also appreciating the rights, protections and values that do exist. It may leave us realising more than ever how crucial strengthening these rights is for empowering otherwise vulnerable individuals to speak up in the face of authority.
Working out the contours of these rights can be difficult. But perhaps it is easier when we see whistleblowing and freedom of expression rights for what they are: fundamental personal rights, the exercise of which has the potential to prevent very public wrongs.