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Whistleblowing regulator, Commissioner or Ombudsman?

The launch of two backbench bills this year has kick started a Parliamentary debate about whether there should be a regulator, commissioner or ombudsman overseeing whistleblowing.

In February, Dr Phillipa Whitford, MP for Central Ayrshire, launched her Public Interest Disclosure (Protection) Bill in the House of Commons, and Baroness Kramer launched her Office of the Whistleblower Bill in the House of Lords the week before at the end of January.

Both bills address the lack of a streamlined approach in setting standards for whistleblowing arrangements among employers and regulators. This includes how whistleblowing investigations should be conducted, and what happens if the employer or regulator fails to investigate the concern or mistreats the whistleblower. Whilst an individual can seek legal redress through the employment tribunals by enforcing their rights under the Public Interest Disclosure Act 1998 (PIDA), this continues to overlook vital issues such as the actual concerns raised by the whistleblower, as well as the inconsistent and inadequate approach to whistleblowing practices from both employers and regulators.

An enforcement body overseeing whistleblowing malpractice would help with the disparity between regulators and their investigatory remit regarding whistleblowing concerns.

There are over 90 ‘prescribed persons’ UK (regulators) as well as non-prescribed regulators  whistleblowers can raise their concerns to externally. Currently, only some regulators such as the financial services and health sectors have robust whistleblowing frameworks, which remains to be followed by regulators in other sectors. The Financial Conduct Authority (FCA) has a more expansive view of whistleblowing and their ‘reportable concerns’ include a wider remit that includes how the individual in question has been treated by their employer for whistleblowing. Similarly, in the health sector, the National Guardian’s Office (NGO) also concerns itself with the treatment of whistleblowers, which addresses the cultural elements related to whistleblowing in the workplace. Unfortunately, the individual aspect of whistleblowing is not dealt with by regulators who deal only with the concern itself.

We at Protect have also addressed these issues in our Draft Whistleblowing Bill which we launched in Autumn 2019 which proposes the introduction of a Whistleblowing Commissioner. We believe a Whistleblowing Commissioner – The Commissioner – will set standards for employers and regulators, investigate mishandled concerns, where a whistleblower has been mistreated, improve public awareness on the benefits of whistleblowing and its legal protections, and impose fines on employers or regulators for breaches of these standards. The Commissioner will bridge  barriers that currently exist in practice – by closing the gap between what can be raised/investigated, and issuing an annual  public report into how standards set by the Commission have been breached.

The Commissioner would also open-up tighter regulatory control in sectors that currently have little to no oversight.  It would also act as a conduit to those sectors that have a complex regulatory regime or a cover a wide remit, like the education sector.

Having in place a whistleblowing Commissioner will  provide a consistent application of whistleblowing practices but more importantly, it will provide another regulatory layer for whistleblowers to raise their concerns to and ensure compliance by employers and regulators  and hold them to account.

We look forward to working with politicians, policy makers and campaigners to develop the idea of a central regulatory body  for whistleblowing and the reform of the Public Interest Disclosure Act (PIDA)

By Legal Adviser Burcak Dikmen