Jersey & Guernsey Law Review – February 2009
Blowing the Whistle
1 Some years ago Alan Binnington, one of the Commissioners of the Jersey Law Commission, lamented in an article in this review that the work of the Commission was insufficiently appreciated by the Island’s government. Reports were prepared but were subsequently largely ignored. Perhaps part of the problem is that Ministers do not fully understand how the Commission can be used to assist the Island’s government in achieving policy objectives. Some policy issues give rise to quite complicated legal questions. The ability to pass the problem to a competent external body whose remit includes the investigation of matters referred to it by the States seems useful. The Law Commission is not concerned only with “lawyers’ law”. One such political problem which might be considered by the Commission is whether Jersey needs “whistle-blowing” legislation.
2 From time to time the issue is raised in the media, usually by those who argue for some statutory protection for whistle-blowers. Who or what is a whistle-blower? The UK charity Public Concern at Work defines whistle-blowing as the “pursuit of a concern about wrongdoing that does damage to a wider public interest”. Originally the practice of whistle-blowing was regarded with some ambivalence. There were those who regarded whistle-blowers as “sneaks” or troublemakers whose presence in a corporate environment was unwelcome. Others regarded them as public-spirited individuals who were willing to risk their employment or reputations in the public interest. Whistle-blowing has a long pedigree. The actions of a senior civil servant who leaked secret information to Churchill as to the lamentable state of the UK’s defences in the 1930s are now seen as close to heroic. On the other side of the coin the leaking of confidential information about emerging government policy can be malicious, politically inspired, or worse.
3 It seems, however, that the tide has definitively turned in favour of some form of protection for whistle-blowers. The 10th report of the Committee on Standards in Public Life in 2005 stated that—
“The essence of a whistle-blowing system is that staff should be able to by-pass the direct management line, because that may well be the area about which their concerns arise, and they should be able to go outside the organisation if the overall management is engaged in an improper course. Effective whistle blowing is, therefore, a key component in any strategy to challenge inappropriate behaviour at all levels of the organisation. It is both an instrument in support of good governance and a manifestation of a more open organisational culture.”
4 In his Chairman’s report of 2002, Michael Smyth of Public Concern at Work stated that his vision was that “whistle-blowing should be recognized as an honourable aspect of human behaviour and an effective means to promote and protect the public interest”. In 2007 he was able to assert that there had been welcome progress in the UK which was regarded as being a leader in this respect. There had been a change of culture.
5 In part the change of culture has been due, it is said, to the statutory protection afforded by the Public Interest Disclosure Act 1998 which came into force in 1999. The broad scheme of that Act is to render certain disclosures of information “protected”. If a disclosure is statutorily protected, any duty of confidentiality in a contract of employment is overridden. An employee has a right not to be subjected to any detriment by his employer as a result of the protected disclosure. In particular, an employee who is dismissed is to be regarded as unfairly dismissed if the reason, or principal reason, for the dismissal is the making of a protected disclosure. All the provisions relating to whistle-blowing are now to be found in Part IVA of the Employment Rights Act 1996, as amended.
6 The existence of the Employment (Jersey) Law 2003, and the introduction into Jersey law of the concept of unfair dismissal, clearly provide the mechanism whereby whistle-blowing provisions could be brought into force. It was not originally envisaged. There are no automatic grounds for a finding of unfair dismissal, as the English Act provides in relation to whistle-blowing. Nonetheless, the statutory framework for Jersey is there. Similarly, the Employment Protection (Guernsey) Law 1998 provides the legislative peg upon which whistle-blowing provisions could be hung in that Island. Unfair dismissal is part of Guernsey law too. Is statutory protection for whistle-blowers needed, however, in the Channel Islands?
7 On the one hand, it can be argued that other countries are now following the UK’s lead. South Africa introduced similar provisions in 2000, and Japan followed suit in 2006. Many European countries have done likewise. In 2007 a survey of multinational companies in Europe which promote whistle-blowing to their staff showed that 54% of bosses claimed that their staff felt free to blow the whistle on fraud, corruption and bribery. The comparable figure in the UK is 86%. On the other hand much of this progress may be due not to legislation but to improved practices in the workplace. The 10th report of the Committee on Standards in Public Life emphasized that the Public Interest Disclosure Act was only a statutory backstop to ensure that employees who followed the prescribed procedures for raising concerns were not victimized. If the stage was reached where statutory complaints were necessary, that represented a failure of the internal systems. Should efforts be directed instead to ensuring that the whistle-blowing systems for major employers in the Islands are fit for purpose ?
8 It is also worth noting that the structure of the 1998 Act is such that a disclosure to the media will only be protected in strictly defined circumstances. The nature of the statutory provisions does not encourage employees or former employees to leak sensational stories to the press. Disclosure to the media should be the last, and not the first, resort of the whistle-blower.
9 Another dimension to the issue is the increasing use of whistleblowers in law enforcement. This development comes, unsurprisingly perhaps, from the USA. The USA has embraced the notion of accomplice evidence and, in particular, offering protection or immunity to whistle-blowers who enable the authorities to fry bigger fish. The American Sarbanes-Oxley Act 2002 was followed by the Consumer Product Safety Commission Act 2008 which is intended to safeguard whistle-blowers in that country who give information about dangerous products. In the UK the Serious Organised Crime and Police Act 2006 introduced immunity certificates for whistle-blowers providing information and evidence about wrongdoing. The Office of Fair Trading offers rewards to those who give information helping to break up cartel activity. Immunity from criminal process is of course a different matter from employment protection, but the fields are overlapping in some respects. Perhaps the Chief Minister could request the Jersey Law Commission to get its teeth into some of these interesting issues.