Not Wanting to Be Left Behind, the UK Introduces Two Bills in Parliament Seeking to Improve UK’s Whistleblower Protections
The European Union is on the cusp of taking a quantum leap in the protection of whistleblowers. Whereas previously only 8 of the 27 member states had national laws protecting whistleblowers, the new EU Whistleblowing Directive (Directive 2019/1937) requires that all 27 member states transpose into national law sweeping whistleblower protections by the end of this year, creating a blanket of whistleblower protections across Europe. The UK, however, having Brexit-ed from the EU, arguably is no longer required to transpose the EU Whistleblowing Directive and therefore runs the risk of falling behind its peers as a jurisdiction that adequately protects and supports whistleblowers.
In an effort to reclaim its place as a leader in whistleblower protection, the UK recently has had two bills circulating in Parliament that seek to update or replace its 22-year-old whistleblower protection law, the Public Interest Disclosure Act (PIDA), which at the time of its 1998 enactment was heralded as a “world leading” whistleblower law. One bill, the Public Interest Disclosure (Protection) Bill, originated in the House of Commons in 2020 and, after two readings, it failed to complete its passage through Parliament before the end of the session, and therefore has died. The other, a House of Lords bill entitled the Office of the Whistleblower Bill (OWB), recently had its first full debate in the Lords during its second reading on June 25th and remains active, having progressed to committee stage.
The House of Lords’ OWB Bill, sponsored by Baroness Susan Kramer, a Liberal Democrat who is also a Co-Chair of the All Party Parliamentary Group for Whistleblowing, is notable for its brevity (weighing in at only two pages long) and seeks to establish within UK Government an Office of the Whistleblower whose duties broadly include “the administration of arrangements to facilitate whistleblowing,” including the power to:
- consult on amending or replacing PIDA,
- monitor the activities of relevant UK Government bodies, including their use of information disclosed by whistleblowers and preservation of confidentiality,
- act as a point of contact for individuals who wish to blow the whistle,
- form and maintain a panel of accredited legal firms and advisory bodies to advise and support whistleblowers,
- maintain a fund to support whistleblowers,
- provide financial redress to individuals whose disclosure “is deemed by the Office to have harmed their employment, reputation or career,” and
- publish a report to Parliament each year regarding its activities.
In the US, where our whistleblower protection laws and reward programs are largely siloed, with no overarching whistleblower protection or reward law or whistleblower oversight agency, the concept of an Office of the Whistleblower endowed with broad powers sitting within the US Government is intriguing. In addition to being given the power to review and improve the existing whistleblower laws, the OWB would have the power to oversee how other government agencies and departments interact with whistleblowers, providing much-needed protection for government whistleblowers in particular.
While we applaud the Bill’s endowment of the OWB with the power to “provide financial redress to individuals whose disclosure is deemed by the Office to have harmed their employment reputation or career,” we note from our experience with the successful whistleblower reward programs in the US that whistleblowers are more likely to speak up when there is a guarantee of a specific financial reward. Most whistleblowers engage in a risk-reward calculus when deciding whether to speak up. The prospect of a well-defined, rather than an amorphous, financial safety net will increase the likelihood of whistleblowers undertaking the risks of speaking up.
With that piece of unsolicited advice, those of us across the pond will continue to watch with great interest as the OWB Bill progresses through Parliament in the hopes the UK brings about the next big development in whistleblower protection and empowerment.
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- Whistleblowers Without Borders: International Whistleblowers are Increasingly Important Contributors of Tips to the SEC Whistleblower Reward Program
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