One cannot fail to be shocked by the way in which the Cumbrian police have dealt with those who leaked information to the press about the excessive expenses of their recently elected Police and Crime Commissioner. The Commissioner, Richard Rhodes, held a press conference in which he admitted that it was wrong to have incurred the cost of hiring a private chauffeur at the public’s expense, but then said he was not responsible for the decision to prosecute those who put the information into the public domain.
Why not say that steps would be taken to protect those who challenged this unwise expenditure or to say that clearly internal mechanisms were not working adequately and that these are to be reviewed?
Instead, the internal investigations unit is called in to spend yet more public money in order to punish those who have embarrassed their new leader. This involves prosecution for the common law offence of Misconduct in Public Office. According to Crown Prosecution Service an offence that should only be pursued where there is wilful neglect or misconduct that amounts to an abuse of public trust. Would the public agree that the leaking of information about the misuse of their money amounts to a breach of trust? Surely such information is in the public interest – a measure about to be included in the whistleblower protection law – the Public Interest Disclosure Act 1998 (“PIDA”)?
Public interest is not defined in UK law, but is to be found as a principle to be assessed by public authorities in freedom of information and data protection legislation as well as by the media when considering whether privacy issues prevent the publication of journalistic material. Arguably it is also encapsulated in the categories of wrongdoing to be found in PIDA (a criminal act, a danger to health and safety or the environment, a breach of a legal obligation and a miscarriage of justice – or cover up of any of these matters).
PIDA operates by providing a right to compensation if it is found that a disclosure of information about one of these categories is made and the worker can show that they have been victimised or dismissed as a result of that disclosure. The protection is most easily obtained if the disclosure is made to the employer, but protection is available if the information is provided to a regulator (such as the Health and Safety Executive, the Financial Conduct Authority or the Care Quality Commission) or more widely to an MP, to a campaigning charity or to the media for example, but in these circumstances the law expects the worker to show that they believed the information they disclosed was true; and for the wider non regulatory disclosure, they must satisfy a number of tests including that it was reasonable to have made the disclosure.
It is perhaps surprising that a piece of legislation that is all about the public interest has not contained a public interest test and in recent times it is the case that PIDA has been used as a ‘bolt on’ to employment disputes where other issues were at the heart of the matter. Hence recent moves by HMG to amend the legislation and our setting up of a whistleblowing commission (see below) in order to sense check and review the legislation.
Of more particular concern is the draconian response of public authorities to public officials who leak information to the media and what about the role of regulators and particularly the Independent Police Complaints Commission (“IPCC”) in this? Currently any serving police officer is not able to raise a concern with the IPCC direct and for all the focus on leaking by the police in the Leveson inquiry, its only suggestion was that police authorities should have reporting lines. Where is the external check on this?
If we are to encourage public debate and want our public authorities to be open and transparent then the actions of the police in this case are very much a step in the wrong direction, more likely to result in a culture of silence with more anonymous leaking than anything else.
We should be doing more to question what protection is available to public servants as well as those who more generally make disclosures in the public interest to the media. These questions are all being posed by the Whistleblowing Commission which is examining the current law and policy for the protection of whistleblowers in the UK and will be making recommendations for change in a report at the end of this year.
It is time everyone had their say about when, how and where to speak up.
Cathy James is the Chief Executive of Public Concern at Work, the whistleblowing charity, aims to protect society by encouraging workplace whistleblowing.