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Government to review outdated whistleblowing laws

Author: ICAEW Insights

Published: 12 Apr 2023

Charities and politicians have called on the government to strengthen UK whistleblowing laws, after criticising current rules as “a discredited and distrusted law that has failed to protect whistleblowers”.

The government has launched a review of the UK whistleblowing framework – the laws that support workers who disclose criminal activity, breaches of legal obligations, health and safety concerns and environmental damage in the workplace – to ensure its effectiveness.

In response to calls for reform, and as promised in the Commons last autumn, the government has now pledged to tighten legislation to strengthen protections for workers who blow the whistle on wrongdoing.

The review aims to investigate whistleblowing protections, the availability of information and guidance for whistleblowing as well as how employers and prescribed persons respond to whistleblowing disclosures, including best practice.

Workers who report workplace wrongdoing are protected through the Public Interest Disclosure Act 1998 (PIDA) with successive governments having tweaked the law over the years. 

Last year in a report published by the All Party Parliamentary Group for Whistleblowing, Mary Robinson MP, the group’s chair, launched a scathing attack on the current laws: “In 1998 The Public Interest Disclosure Act was celebrated globally as groundbreaking; 24 years later only 4% of people who bring claims succeed. PIDA is now a discredited and distrusted law that has failed to protect whistleblowers or the public against wrongdoing and harm.”

Robinson said for the majority “whistleblowing has shattered their lives. Many lose their health and livelihood and are forced onto benefits or low paying jobs.” 

The report also said that there had been an overall decline in whistleblower reports across both the public and private sectors but that reports of harassment were increasing, suggesting “a fear of retaliation is playing its part”.

In 2021 the International Bar Association conducted the first of its kind review assessing countries with whistleblower legislation against compliance with international best practice. The UK ranked 12th out of 16 countries. 

The use of NDAs to suppress “often criminal but always unethical and immoral behaviour” was also called into question by the APPG.

The UK was one of the first countries in the world, and the first EU member state at the time, to legislate on whistleblowing, creating the “whistleblowers framework”. However, since then the UK’s rules have been superseded by other jurisdictions. The European Union recently legislated on a Whistleblower Directive, which has become law for all member states, meaning the UK laws are likely to look even more outdated.

David Gomez, Senior Lead, Ethics, ICAEW, said a review of the UK’s whistleblowing framework was timely. “Presently, the protections afforded to whistleblowers under the new EU directive go further than those provided under UK legislation. These include the imposition of a duty on employers to implement whistleblowing policies, including setting up internal channels and feedback procedures and ensuring that the whistleblowers’ identity is kept confidential.”

The new EU directive also widens the scope of persons who are protected to include volunteers and non-executive directors; provides legal aid to whistleblowers and specific provisions to protect them from potential liability on the grounds of breach of confidence, defamation and data protection; and provides a designated competent authority tasked with investigating whistleblower disclosure and retaliation complaints.

The UK review, expected to be concluded by the autumn, will examine the effectiveness of the whistleblowing framework in meeting its original objectives, providing an evidence base to inform government about policy choices in and improving the framework, the government said.

Whistleblowing is a crucial source of evidence for authorities tackling corruption, fraud and other economic crime, as it is often only insiders who can expose these activities and their perpetrators.

It also provides a route for employees to report unsafe working conditions and wrongdoing across all sectors.

However, Gomez cautioned that laws alone would not fix this problem: “Organisational culture is equally important. One of the hallmarks of an ethical workplace culture is whether employees feel enabled to speak up, and are supported when they do so.” 

Under the ICAEW Code, senior accountants in business are expected to encourage and promote an ethics-based culture within their organisations, including in relation to whistleblowing policies.

“While government can change the legislation to make whistleblowing easier and safer, accountants can – and should – use their influence to change the culture of the organisations with which (and in which) they work,” Gomez added.

Gomez said: “By virtue of their specialist skills and the services they provide, accountants have privileged access to corporate information. The ICAEW Code of Ethics sets out a detailed framework to guide accountants in business and in practice on the actions they should take in the event they uncover instances of non-compliance with laws and regulations (NOCLAR) by an employer or a client. The key objectives in such circumstances are to comply with the principles of integrity and professional behaviour; to alert management where appropriate; and to take appropriate action in the public interest.” 

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