Over the last few days a number of courageous NHS whistleblowers have defied the terms of “confidentiality agreements” and spoken out about concerns that they had about the way in which trusts and hospitals were run. You might think that the villains were obvious: secrecy obsessed public authorities spending public money to buy off public criticism. But you would be wrong. The “Daily Mail” knows that the true villain is Lord Justice Leveson.
In a comment piece published on 14 February 2013 entitled “Leveson and a gag on whistleblowers” the “Daily Mail” tells us that what it is most frightened by is not the cover up by the NHS trust but the fact that
“post Leveson – such secrecy and bullying appears certain to become the norm in the state sector. If Lord Justice Leveson gets his way, whistleblowers will report their concerns only to their employers – and certainly NOT the media”
So, the position is clear, if Lord Justice Leveson gets his way “secrecy and bullying is certain to become the norm in the state sector”.
This “certainty” is not related to any specific recommendations of the Leveson report which, readers may recall, is not actually about “whistleblowing in the state sector” but rather the “culture, ethics and practices” of the press.
This press includes one newspaper group – Associated Newspapers – who sought to use the Human Rights Act 1998 (previously the refuge of prisoners and asylum seekers) to challenge a decision of Lord Justice Leveson to permit journalists to give evidence anonymously for fear of “career blight”. In other words, Associated Newspapers tried to prevent whisteblowers from giving evidence about illegal or unethical practices. Its application was, rightly, rejected by the Courts ([2012] EWHC 57 (Admin)). Associated Newspapers publishes the “Daily Mail”.
Lord Justice Leveson does, indeed, deal with whistleblowers on two occasions in his recommendations.
The first is recommendation 46 (headed “Protecting Journalists”) which is that
“A regulatory body should establish a whistleblowing hotline for those who feel that they are being asked to do things which are contrary to the code”.
Despite its strong public support for “whistleblowers” this is not a recommendation which the “Daily Mail” has so far adopted.
Secondly, Lord Justice Leveson makes a number of recommendations for
An enhanced system for protection of whistleblowers and for providing assistance for the Police Service on general ethical issues (Recommendation 84)
He makes no recommendations designed to prevent whistleblowers in the state sector reporting their concerns to the media.
The “Daily Mail” tells us that
“it is impossible to overstate the Leveson report’s chilling effect on journalism and the public’s right to know“.
This is an “impossibility” which the “Daily Mail” has no difficulty in overcoming on a depressingly regular basis.
It is, in contrast, plainly difficult to overstate the lengths to which this, and other newspapers, are prepared to go in misinforming the public about the Leveson Report in an attempt to prevent an effective system of press regulation being implemented.
LJ Leveson may not have made recommendations “designed to prevent whistleblowers in the state sector reporting their concerns to the media”.
But his recommendation about an internal police hotline for whistleblowers was backed by his argument that confidential information should only be placed in the public domain in “exceptional circumstances”. It’s hard to read that section of the report without coming to the conclusion that whistleblowers ought not to go to the press but should restrict their concerns to internal consumption:
http://www.guardian.co.uk/media/2012/nov/29/leveson-police-whistleblowers
Leveson’s words on police whistleblowers warning the public through the media about wrongdoing will cause concern to some. Leveson writes: “There remains an important point of principle which I need to come back to: that information which is confidential should remain so, unless there really are exceptional circumstances justifying the placing of that information into the public domain. Additionally, and looking at this more widely, the ends do not usually or, at least necessarily, justify the mean.”
Why should we dogmatically back the whole of Leveson’s report and recommendations when there are clearly some areas which cause concern? The fact that some of the people arguing against this point include the editorial writers of the Daily Mail does not invalidate the argument.
Funnily enough, the Guardian makes similar points in its editorial here:
http://www.guardian.co.uk/commentisfree/2013/feb/17/journalistic-sources-law-editorial
While the editorial doesn’t specifically mention Leveson, it does build its argument by reference to a previous story:
http://www.guardian.co.uk/uk/2013/feb/13/whistleblowers-press-new-police-powers
Which says:
The government is proposing to make it easier for the police to seize confidential material from journalists, it emerged on Wednesday night. Legal experts warned that the plans risked trampling on long-standing protections from the state.
The Home Office said it accepted recommendations from Lord Justice Leveson’s inquiry into the media for consultation over changes to laws governing police demands for material from news organisations and reporters.
During the inquiry, the Metropolitan police urged Leveson to weaken protection for journalists from police searches and demands to hand over confidential material gained through their work.