PROTECTING WHISTLEBLOWERS IN THE UK: A New Blueprint REUTERS / PAUL HANNA blueprint for FREE SPEECH ProtectingProtecting Whistleblowers Whistleblowers in the in UK:the A UK: New A NewBlueprint Blueprint Acknowledgements The authors of this report, and Blueprint for Free Speech, are indebted to the support of many who kindly provided their assistance in the preparation of this document. Some provided reference materials or online resources that were used. Many provided countless hours of advice, accounts of their stories, legal assistance, consultation, guidance and moral support. We are very grateful. Specifically, we would like to mention: Rosie Beaumont-Thomas Gavin MacFadyen Andrew Bousfield Jack Mitchell Prof AJ Brown Patients First James D. Catlin Public Concern at Work Centre for Investigative Journalism (UK) Matt Railton Compassion in Care Liz Sich Mark Davis Charles Smith Ken Day Truda Spruyt Dr David Drew Thomson Reuters Foundation Four Colman Getty Whistleblowers UK (www.wbuk.org) Dr Kim Holt Action for a Safe and Accountable David Johnstone People’s NHS in Scotland Prof David Lewis The whistleblowers who were extremely generous with their time in the granting of interviews to James D. Catlin, and continued assistance after the fact when further clarification was sought. A heartfelt thanks to each of X1 through X12. Barristers and solicitors in the UK who were generous with their time over the phone and in person who provided useful context, advice and recommendations to us over the course of this report. Many agreed to help on a confidential basis, and we thank them for their selfless donation of their time. 3 Protecting Whistleblowers in the UK: A New Blueprint Protecting Whistleblowers in the UK: A New Blueprint Blueprint for Free Speech Blueprint for Free Speech (Blueprint) is an internationally focused not-for-profit organisation concentrating on research into ‘freedoms’ law. Our areas of research include public interest disclosure (whistleblowing), defamation, censorship, right to publish, shield laws, media law, Internet freedom, intellectual property and freedom of information. We have significant expertise in whistleblowing legislation around the world, and we provide expertise and support in this to grassroots organisations across a number of countries. We are regular policy contributors to international and domestic organisations. We provide a free library of papers analysing more than 30 countries’ whistleblowing laws, protections and gaps. Our activities also include supporting the development of free software that protects the freedoms listed above. We train journalists, civil society groups and their information technology support teams on how to use technology that enhances and guards these important freedoms. Authors Simon Wolfe Simon Wolfe is the Head of Research at Blueprint for Free Speech and was a visiting scholar at the University of Melbourne Law School. He graduated with an LL.B from the University of Melbourne and an LL.M from Stockholm University. Simon has a background in both freedom of speech law and policy and commercial law. He has significant experience in whistleblower protection law, national security legislation and freedom of expression policy generally. He has authored many reports and submissions on behalf of Blueprint for Free Speech and has appeared before parliaments or legislative committees of Australia, Iceland and Taiwan, and submitted to many others. Prior to joining Blueprint, Simon worked at a commercial law firm in Australia, and spent time working in France and Tanzania. 4 Protecting Whistleblowers in the UK: A New Blueprint AUTHORS continued Mark Worth Mark Worth is the Director of Blueprint’s International Whistleblower Project. Mark has been a civil society advocate and investigative journalist in the US and Europe for more than 25 years. He specialises in whistleblower protection, government and corporate accountability, citizen participation, food safety, public information and media integrity. Prior to joining Blueprint in 2014, he was the founding coordinator of the whistleblower program at Transparency International. He was instrumental in advancing whistleblower legislation in many countries and drafting international guidelines for whistleblower protection laws. He has also held leadership positions at the consumer organisation Public Citizen (founded by Ralph Nader) and Food and Water Europe. He has written for many publications and media companies, and is the founding publisher of award- winning independent newsmagazines. He holds degrees in journalism from the University of Florida and engineering from the Florida Institute of Technology. Mark lives in Berlin. Dr Suelette Dreyfus Dr Suelette Dreyfus is the Executive Director of Blueprint for Free Speech. Her career has spanned academia, journalism and advocacy. She was a staff reporter on Australia’s largest selling daily newspaper. As a freelance journalist, her work appeared in The Sydney Morning Herald, The Independent (London), The Guardian, The Australian, The Age, and a number of technology publications and peer-reviewed academic journals. In academia, she holds an appointment as a Lecturer in the Department of Computing and Information Systems at the University of Melbourne. She researches how technology is transforming both privacy and transparency, and how it impacts on whistleblowing and anonymity. Suelette founded Blueprint with a view to improving the standards of laws around the globe that protect freedom of expression generally. Her vision for Blueprint is to encourage informed public debate and outcomes about freedom of expression laws through meaningful research. 5 Protecting Whistleblowers in the UK: A New Blueprint Thomson Reuters Foundation The Thomson Reuters Foundation stands for free, independent journalism, human rights, women’s empowerment, and the rule of law. We use the skills, values, and expertise of Thomson Reuters to run programmes that trigger real change and empower people around the world, including free legal assistance, journalism and media training, coverage of the world’s under-reported stories, and the Trust Women Conference. TrustLaw is the Thomson Reuters Foundation’s global pro bono legal programme, connecting the best law firms and corporate legal teams around the world with high impact NGOs and social enterprises working to create social and environmental change. We produce groundbreaking legal research, and offer innovative training courses worldwide. Through TrustLaw, over 100,000 lawyers offer their time and knowledge to help organisations achieve their social mission for free. This means NGOs and social enterprises can focus on their impact instead of spending vital resources on legal support. TrustLaw’s success is built on the generosity and commitment of the legal teams who volunteer their skills to support the NGOs and social enterprises at the frontlines of social change. By facilitating free legal assistance and fostering connections between the legal and development communities we have made a huge impact globally. We have supported grassroots organisations to employ their first staff members, helped vulnerable women access loans to start their first businesses and brought renewable energy lighting to slums. Free legal assistance on these small projects has had a big impact on local communities working to overcome poverty and discrimination. At a global scale, we have supported legal reform activities to protect the rights of millions of domestic workers, changed legislation to support victims of violence, produced guides to protect people who experience street harassment, and crafted tools to support the prosecution of trafficking offenders. Legal research reports and other TrustLaw publications are legal resources that take an in-depth look at a legal issue in a number of countries. This may be in the form of a comparative analysis of laws in different countries, or a legal landscape analysis. These resources aim to help TrustLaw members advocate for legal reform, inform policy activities or propose legal amendments. Our resource library can be found at trustlaw.trust.org 6 Protecting Whistleblowers in the UK: A New Blueprint CONTENTS INTRODUCTION: UK LAW DOES NOT – AND CANNOT – ADEQUATELY PROTECT WHISTLEBLOWERS …………………………………………………… 1 NOT MEASURING UP: PIDA NOW RATES POORLY AGAINST INTERNATIONAL STANDARDS ……………………………………………………………………… 11 UNFAIR FIGHTS: HOW UK EMPLOYMENT TRIBUNALS CAN TURN WINNERS INTO LOSERS ……………………………………………………………………… 27 EARLY INTERVENTION: STOPPING RETALIATION BEFORE IT IS TOO LATE ……………………………………………………………………………………………… 45 A NEW BLUEPRINT: BUILDING A STRONGER STRUCTURE TO PROTECT WHISTLEBLOWERS ………………………………………………………………… 51 PROBLEMS AND SOLUTIONS: 10 URGENTLY NEEDED REFORMS ………………… 55 ANNEXES ANNEX I: BOSNIA’S PRE-TRIAL MECHANISM …………………………………………… 74 ANNEX II: GAGGING THE MESSENGERS: UK WHISTLEBLOWERS PRESSURED TO REMAIN SILENT ……………………………………………………………… 76 ANNEX III: UNHEALTHY CARE: NHS WHISTLEBLOWERS SUFFER AN EPIDEMIC OF RETALIATION ………………………………………………………………… 79 ANNEX IV: REASON SHOPPING: HOW EMPLOYERS SIDESTEP WHISTLEBLOWER RETALIATION CLAIMS ………………………………………………… 83 ANNEX V: METHODOLOGY OF OUR RESEARCH ………………………………………86 ANNEX VI: THE CASE FOR A SEPARATE WHISTLEBLOWER LAW ………………88 ANNEX VII: NATIONAL SECURITY WHISTLEBLOWING ……………………………… 92 Protecting Whistleblowers in the UK: A New Blueprint 1 INTRODUCTION UK Law does not – and cannot – adequately protect whistleblowers REUTERS / LUKE MACGREGOR 2 Protecting Whistleblowers in the