The Halfway House is Only Halfway Built: Reforming the system of prescribed persons and the Public Interest Disclosure Act 1998.

 

Richard Hyde, Professor of Law, Regulation and Governance, University of Nottingham

Ashley Savage, Independent Scholar and Consultant, Vienna.

ABSTRACT

The Public Interest Disclosure Act 1998 is now 20 years old. The Act provides a way for claimants to take action against their employer if they suffer detrimental treatment or are dismissed for blowing the whistle. The Act does not place requirements upon organisations or authorities to deal with the whistleblower or the concern in a particular way. There is now growing recognition that the law could be improved. In this article the authors provide a detailed analysis of one particular aspect of the law, the role of 'prescribed persons.' The authors highlight several inadequacies with the current scheme identifying that there are certain important regulators missing and that there are sectoral imbalances. The authors explore several options for reform, consider the positives and negatives of establishing a new whistleblowing agency and recommend that the list of prescribed persons should be either updated to include the important regulators who are currently missing or better still be entirely replaced by new legislation.

INTRODUCTION

The Public Interest Disclosure Act 1998 was enacted over 20 years ago purportedly to "protect individuals who make certain disclosures of information in the public interest; to allow such individuals to bring action in respect of victimisation; and for connected purposes." [1] Whilst the Act has allowed individuals to secure damages for detriment and dismissal and has arguably increased awareness and debate about the protection of whistleblowers in the United Kingdom, the law has been subject to criticism. [2] The establishment of an All-Party Parliamentary Group on Whistleblowing [3] and statements made by Members of Parliament as part of a Westminister Hall debate are indicative of the growing momentum for change. [4]

Whistleblowers raise concerns because they want them to be addressed. [5] The potential risks to whistleblowers are well known. [6] As well as the more obvious cases of dismissal from employment, they can face isolation from colleagues and the gradual loss of employment responsibilities, promotional opportunities leading to resentment, rejection and the opportunity for employers to then raise capability and performance issues. These problems can further manifest themselves as part of individuals' private lives causing an impact on familial relationships and friendships. Whistleblowing can have psychological consequences too. [7] Retaliatory practices can cause detrimental consequences but so too can the failures of recipients to act upon concerns. What should have been a relatively straightforward act of speaking up becomes a life-long and arguably unnecessary crusade. [8]

Firstly, the Public Interest Disclosure Act 1998 requires individuals to first know of the existence of the legislation. [9] Second, they must raise the concern in a certain way. The Public Interest Disclosure Act 1998 operates a stepped or tired regime whereby workers are protected most easily if they raise their concern to an employer and the evidential requirements increase depending upon the recipient. Put simply, the further that the worker moves away from the organisation to raise the concern, the more difficult it will be to obtain legal protection. Third, the worker must suffer a detriment or dismissal. The onus is upon the individual to submit an ET1 claim form to an Employment Tribunal where there is no guarantee that it will be accepted. Arguably, the law and its practical application create a power imbalance. Claimants must navigate the complexity of a law which has been subject to a large body of equally complex persuasive and binding judgments over the years. In addition, because PIDA is silent on issues relating to the law of Confidence, Defamation, criminal disclosure offences etc., the claimant may also require specialist expert knowledge on these issues. Also uncertain is PIDA's interaction with a growing body of art.10 jurisprudence at the European Court of Human Rights. [10] From day one, claimants are at a tactical disadvantage over the respondent employer who may have the increased financial means to instruct expert legal counsel to counter any claim. In addition, as is standard in employment law proceedings, the parties will be encouraged to settle at an early stage. [11] An employer can often have the financial means to offer a monetary settlement which may be an attractive proposition to a worker who lacks the financial resources and expertise to see a tribunal claim through until the end. Settlement can provide monetary relief but PIDA provides no legal means to deal with the concern. In addition claimants may be encouraged to sign a Non-Disclosure Agreement ('NDA') which may prevent, or at least discourage, claimants for attempting to further raise the concern. [12]

Regulators and organisations with oversight and enforcement powers can help to readdress this power imbalance. Many are now 'prescribed' for the purposes the Public Interest Disclosure Act 1998. 'Prescribed persons' were intended to sit between the polar extremes of internal concern reporting and external reporting. In the words of Lord Borrie, this provides: "something of a halfway house in that it recognises the particular role of regulatory authorities which are charged to oversee and investigate malpractice within organisations." [13]  

In order to receive 'prescribed' status, the Secretary of State for Business, Energy and Industrial Strategy must add the organisation to a list, requiring a new Statutory Instrument or insertion via primary legislation. The prescribed person's list performs two functions, a practical function and a symbolic function. Practically, it provides greater protection to whistleblowers that make disclosures to those who can take steps to remedy the breach disclosed. Symbolically, it provides a signal to whistleblowers that the listed body is the type of body to whom a disclosure should be made, and that the body can take steps to address their concern. Further, a signal is sent to listed bodies that they can expect to receive whistleblowing disclosures and handle them appropriately. This piece will argue that the current prescribed persons list fails to fulfil both the practical and symbolic functions of the list and will thus make the case for reform. Whilst a body may be prescribed, the Public Interest Disclosure Act 1998 does not place any obligations upon them to receive, handle or investigate concerns in a particular way. Nor does it provide any additional powers for regulators to protect whistleblowers or take action against retaliatory practices. The law therefore carries the assumption that prescribed persons already possess the powers to effectively deal with the concerns and to support whistleblowers through their various existing statutory and common law powers.

The authors suggest that this assumption has had a series of negative consequences. As Savage and Hyde [14] and the National Audit Office [15] identified, the lack of a clear overarching legal framework has meant that many national and local prescribed persons handle concerns differently. [16] This means that a worker geographically located in one part of the country could receive a very different response from a worker located or operating in another. The different approaches and procedures adopted by the various prescribed persons also suggest a risk of sectoral imbalance. Some regulators are now taking the initiative to regulate and establish procedures which go beyond the requirements laid down by PIDA. In the financial sector, the Financial Conduct Authority and the Prudential Regulation Authority now place requirements upon organisations to establish whistleblowing procedures and a whistleblowing champion. [17] In the Health and Social Care Sector, the Freedom to Speak Up scheme launched as a result of the recommendations made by Sir Robert Francis in the aftermath of the Mid-Staffordshire Hospital scandal has led to the establishment of the Office of the National Guardian and Freedom to Speak Up Guardians in NHS trusts. [18] In contrast, in other sectors, reform has not taken place.

There is limited publicly available evidence that prescribed persons will take action against employers for retaliating against a whistleblower. A rare example is the Financial Conduct Authority and Prudential Regulation Authority who jointly fined James Staley, Chief Executive of Barclays Group, £642,430 for attempting to uncover the identity of a whistleblower. [19] To many, this action fell short of the action merited by Mr Staley's conduct. [20]  

There are also no requirements for a prescribed person to investigate a concern under PIDA. Whilst prescribed persons are likely to have statutory and common law obligations, [21] because these are not readily accessible to potential whistleblowers reading the   in the Public Interest Disclosure Act 1998 this arguably creates additional difficulties for whistleblowers seeking to determine how to obtain support for raising their concerns.

Despite a review of the law in 2014, the then coalition government shied away from wholesale reform. [22] Instead new guidance would be issued to prescribed persons together with an obligation for many of them to report on the disclosures of information made to them together with data on the action taken in response. [23] This reporting requirement effectively aims to encourage those prescribed to handle concerns effectively without legally requiring them to do so. There is no central body or review mechanism beyond the initiative of Parliamentarians.

The reporting requirement introduced by s.148 Small Business, Enterprise and Employment Act 2015 and the Prescribed Persons (Reports on Disclosures of Information) Regulations 2017 contains exemptions. Smaller local authorities do not have to report despite their prescribed status for health and safety and environmental issues. Members of the House of Commons, who were added to the list in 2014, [24] and certain Ministers of the Crown also do not have to report. Despite PIDA being enacted as a direct result of a number of high profile public inquiries and scandals in the 1980s and early 1990s, there was a clear reluctance from the supporters of the legislation to introduce additional regulatory requirements upon organisations. It can be argued that this was symbolic of a time whereby deregulation was in vogue. In 2019, the political climate has changed. The banking crisis which many blamed upon deregulation of the banks led to the establishment of stronger and more effective regulatory oversight. A number of high profile public inquiries in health and social care reinforce the need for regulators to be more effective and to support whistleblowers.

Whistleblowers remain in a vulnerable and uncertain position. PIDA, which was once considered an exemplar, has now arguably been overtaken by more comprehensive whistleblowing laws, some of which place requirements upon authorities to act on concerns. Additionally, in March 2019, negotiators of the EU Parliament and Council reached a provisional agreement on EU-wide rules to protect whistleblowers. [25] The proposed directive would place requirements on authorities to act on concerns and protect whistleblowers where the content of their disclosure relates to matters covered by EU law. [26] Whilst Brexit limits the potential of any EU-based initiatives, [27] this sends a powerful message that workers in the United Kingdom could end up with more limited protection than provided in EU member states. All of these factors necessitate the need for a comprehensive review of PIDA. The purpose of this article and of the proceeding sections is to provide a substantive critical analysis of the law as it applies in respect of prescribed persons before making recommendations for reform.  The next section provides an explanation of the stepped disclosure regime.

2.      THE STEPPED DISCLOSURE REGIME AND THE ROLE OF PRESCRIBED PERSONS

The protection of workers who make whistleblowing disclosures is governed by Part IVA of the Employment Rights Act 1996, inserted by the Public Interested Disclosure Act 1998 ('PIDA'), and provisions of PIDA itself. In order to be a protected instance of whistleblowing under PIDA, the person must make a 'qualifying disclosure.' The categories of information protected extend to information regarding: (i) a criminal offence, (ii) a failure to comply with any legal obligation, (iii) a miscarriage of justice, (iv) danger to the health and safety of any individual, (v) damage to the environment, (vi) or the deliberate concealment of information tending to show any of the matters listed above. [28] These categories are aimed at protecting speech which has a societal value. This position is consistent with the argument that the speaker is afforded derivative rights in order protect and enhance the recipients' right to information. [29]

The Act operates a "stepped" or "tiered" disclosure regime. At the lowest 'step' an employee will most easily receive protection if they reports concerns internally to someone in their line management chain, a nominated officer or their employer. The employee is required to show that the disclosure was made in the public interest [30] and has reasonable belief that the information raised is true. [31] An employee may also raise a concern to someone designated to receive concerns by virtue of his or her employment contract or a policy or set of procedures put in place by his employer. [32] The person designated may be a regulator, a trade union representative or an independent third party. In the specific case of public employees, a concern may be raised to a Minister with responsibility for his or her department. [33]

The second 'step' allows for protection if a concern is raised to a 'prescribed person.' Prescribed persons are identified in the schedule to the Public Interest Disclosure (Prescribed  Persons) Order 2014 (as amended), which lists regulatory bodies, along with a description of matters in respect of which persons are competent to accept disclosures. In contrast to the internal disclosure route outlined above, the employee make the disclosure in the public interest; must make the disclosure with the reasonable belief that the relevant failure falls within any description of matters which applies to the prescribed person; and the reasonable belief that the allegations contained in the disclosure are substantially true. [34] This requirement is in contrast to s.43C where the employee does not have to show that the allegation is substantially true but rather that he or she held the reasonable belief that it was true.

The third and final 'step' contained in s.43G allows for wider disclosures, for example to the media, but also to any person external to the organisation who is not designated under 43C or prescribed under section 43F. It requires the most stringent evidential requirements to be satisfied before the whistleblower will be afforded protection. Firstly the disclosure must be 'qualifying' and be made in the public interest. The employee must believe that the information disclosed and any allegations are substantially true and that the disclosure was not made for personal gain. In addition he must prove that either at the time he made the disclosure, he reasonably believed that he would be subjected to a detriment by his employer if he raised a concern to him, and/or that no person is 'prescribed' to deal with the concern and the worker reasonably believes that it is likely that evidence relating to the relevant failure will be concealed or destroyed if he makes a disclosure to his employer, or he has raised the concern previously to his employer or to a prescribed person. In addition to satisfying the aforementioned provisions, in all circumstances of the case it must be reasonable for the employee to make the disclosure.

In determining reasonableness, the tribunal will have regard to the identity of the person to whom the disclosure is made, the seriousness of the relevant failure and whether the relevant failure is continuing or is likely to occur in the future. The tribunal will also have regard for whether the disclosure has been made in breach of confidence, a duty either owed by the employer or to any other person. [35] Finally, the tribunal will consider whether the disclosure has been made previously to an employer or prescribed person and the action taken or action that the recipient might reasonably have been expected to take as a result. [36] If a disclosure has been made to an employer, regard will also be given to whether the worker complied with any available whistleblowing procedure.

The focus of this article is on the second step disclosure, and particularly on the content of the prescribed persons list. The goal of the second step is to make sure that as many as possible of those workers who make disclosures to prescribed persons are protected.  By considering the identity of bodies on the prescribed persons list the article aims to demonstrate that in order to enhance the protection and to achieve the potential of whistleblowing disclosures as tools of public protection it is necessary to reform the prescribed persons list.

3.      THE INADEQUACY OF THE PRESCRIBED PERSONS LIST

The current list of prescribed persons for England, Wales and Scotland can be located in The Public Interest Disclosure (Prescribed Persons) (Amendment) Order 2014 and the two amendment orders which have followed it. [37] For Northern Ireland, the list is contained in Schedule 1 of the Public Interest Disclosure (Prescribed Persons) (Amendment) Order (Northern Ireland) 2012. The list as currently drafted is inadequate and does not reflect regulatory practice. The inadequacy of the current list distorts the well-intentioned stepped disclosure regime, and provides perverse incentives to disclose to a regulator not best placed to tackle a regulatory breach, which may cause delay in the regulator response as the disclosure finds its way to the regulator empowered to tackle the regulatory breach. The section critiques the current list from normative and interpretive standpoints.

Before beginning this critique, however, it is necessary to describe briefly the regulatory landscape in the UK. [38] The UK is a mature regulatory state, with substantial intervention into the relationship between economic actors and the public. Despite attempts to reduce regulatory burdens in recent years, there is barely an area of activity that is not subject to some form of regulation. Many regulatory functions are devolved to both public and private sector regulatory bodies. These bodies perform important roles in assisting regulated entities in compliance with requirements and sanctioning entities when they fail to comply with these requirements. [39] Regulators play an important role in everyday life, and require information to do it, and therefore whistleblowing can be important to them.

3.1 THE NORMATIVE INADEQUACY OF THE PRESCRIBED PERSONS LIST

The reasons on which the government rely when placing bodies on the restrictive prescribed persons list are difficult to identify. Section 43F gives wide discretion to the Secretary of State to prescribe people or groups of people as able to accept step 2 disclosures. The normative considerations which should influence the decision to prescribe are not clear. In the debates surrounding section43F, Lord Borrie stated that it was intended to "provide something of a halfway house in that it recognises the particular role of regulatory authorities which are charged to oversee and investigate malpractice within organisations." [40] Prescribed persons were therefore envisaged to be regulators with an investigative and/or oversight role. However, the list that appears is not a comprehensive list of bodies with oversight functions. Why then are certain regulators listed whilst others are not?

One possible source of a normative foundation of the prescribed persons list is the judgment in Re A Company. Scott J held that "I doubt whether an employee of a financial services company such as the plaintiff owes a duty of confidence which extends to an obligation not to disclose information to the regulatory authority F.I.M.B.R.A," [41] because the information disclosed would "be information which F.I.M.B.R.A. could at any time obtain by the spot checks that it is entitled to carry out." So, it is possible that a basis for the entry on to the prescribed persons list is the ability to engage in regulatory investigation. This may be reflected in the governmental statement that the intention was to prescribe those bodies that have "specific role in regulating and investigating wrongdoing." [42] However, the prescription (or lack of) of certain regulators does not appear to be influenced by their powers to investigate, or their proactive or reactive nature.

A second possible normative foundation may be found in the importance of the role performed by a particular regulator. It may be that those regulators who are prescribed are those who, in the eyes of the government, have the most important regulatory functions. However, this does not seem to accord with the pattern of prescription, with the list failing to include important regulators such as the Gangmasters and Labour Abuse Authority, who play a key role in combating modern slavery.

 

A third suggestion is that the prescribed persons list contains only those regulators who could receive a disclosure without the disclosure breaching an obligation of confidence. Disclosure to certain regulators cannot be restrained through the mechanism of confidence. The judgment in Re A Company holds that the duty of confidence does not extent "to an obligation not to disclose information to the regulatory authority F.I.M.B.R.A," because the information disclosed would "be information which F.I.M.B.R.A. could at any time obtain by the spot checks that it is entitled to carry out." [43] However, Re A Company should not be seen as imposing restrictions on the regulators to whom disclosure can be made without a breach of confidence, with any suggestion that there is no confidence in the information because it may be discovered during investigation inconsistent with the law of confidence and regulatory practice.

The law of confidence poses no impediments to disclosure to a regulator. Any suggestion to the contrary in Re A Company is inconsistent with the decision in Gartside v Outram that a man cannot be made "the confidant of a crime or a fraud." [44] In the law of confidence the focus is on the information, rather than on the identity of the person to whom disclosure is made. If information discloses regulatory non-compliance, then the information does not possess the quality of confidence, and to disclose the information cannot amount to a breach.  Therefore, if the confidence rationale is responsible for the decision to prescribe it is submitted that it cannot be appropriate to restrict the bodies on the list on this basis. There can be no distinction between the bodies prescribed and those who are not on the basis of an ability to receive disclosures of confidential information at common law.

The current state of the prescribed persons list could lead to unfairness between whistleblowers making similar disclosure that pass the information to prescribed and non-prescribed persons. The second person making the disclosure will have to satisfy the more stringent step 3 requirements, when compared to the person who makes a disclosure to a prescribed person even though both the disclosures are made with the same mental state and both go to regulators able to address the issue. This would mean that the list inadequately addresses the protective and communicative rationales underpinning prescription, where we have seen that the idea is to protect deserving workers and, through the available protection, encourage them to come forward and speak out about an issue of public concern. The disparity does not encourage such speech, instead it supresses it without adequate reasons for doing so.

3.2 THE INTERPRETIVE INADEQUACY OF THE PRESCRIBED PERSONS LIST

Beyond the empirical inadequacy of the prescribed persons list, a further criticism is the difficulties faced by whistleblowers and their advisors when considering whether certain regulators are prescribed. The most prominent example, although now remedied, is Ofsted, the regulator tasked with oversight for education and social care matters. Ofsted claimed to be a prescribed person in relation to their powers under the Care Standards Act, [45] but did not explicitly appear on prescribed persons list. They must, therefore, have thought that they were prescribed by virtue of the catch-all provision that appeared in the prescribed persons list. This provision states that "a person ("person A")" will be prescribed if they are "carrying out functions, by virtue of legislation, relating to relevant failures falling within one or more matters within a description of matters in respect of which another person ("person B") is prescribed by this Order, where person B was previously responsible for carrying out the same or substantially similar functions and has ceased to be so responsible."  The Commission for Social Care Inspection ('CSCI') previously carried out the social care inspection functions that are now carried out by Ofsted. These functions were transferred to Ofsted on the 1 st April 2007 by the Education and Inspections Act 2006 Part 8, and particularly section 148.

The CSCI were added to the Public Interest Disclosure (Prescribed Persons) Order 1999 on 1st April 2004 by the Health and Social Care (Community Health and Standards) Act 2003 (Commission for Healthcare Audit and Inspection and Commission for Social Care Inspection) (Transitional and Consequential Provisions) Order 2004 Schedule 1 paragraph 1. The prescribed persons list was amended to separately prescribe the Commission for Healthcare Audit and Inspection and Commission for Social Care Inspection on 1st October 2005 by the Public Interest Disclosure (Prescribed Persons) (Amendment) Order 2005. The Commission for Social Care Inspection were removed from the prescribed persons list on the 1 st April 2009 by the Health and Social Care Act 2008 (Commencement No.9, Consequential Amendments and Transitory, Transitional and Saving Provisions) Order 2009/462 Schedule 5 paragraph 5(a). They were removed from the list as their functions were transferred to the Care Quality Commission (CQC), who were added in their place.

The CSCI were clearly a person "previously responsible for carrying out the same or substantially similar functions" to Ofsted's children's care functions who had "ceased to be so responsible." However, this was not enough to ensure that Ofsted are a prescribed person for the purpose of section 43F. In order for Ofsted to be prescribed it must be shown that the predecessor organisation "is prescribed by this Order." This requires an inquiry into the state of the prescribed persons order at the time when the whistleblowing disclosure is made. It seems to use that Ofsted were prescribed to receive disclosures relating to the functions which they had taken over from the CSCI for as long as the CSCI remained on the prescribed persons list (in so far as the disclosures fell within the description of matters in respect of which the CSCI was prescribed, which included "matters relating to the provision of regulated social care services as defined in the Care Standards Act 2000"). Once they were removed, on 1st April 2009, Ofsted could not take advantage of the catch all provision because the CSCI ceased to be "another person [who] is prescribed by this Order." Whilst the CSCI were replaced on the prescribed persons list by the CQC, Ofsted could not take advantage of the catch all on the basis that the CQC replaced the CSCI on the prescribed persons list because the CQC has never been "responsible for carrying out the same or substantially similar functions" to Ofsted.

3.3 ESTABLISHING MEMBERS OF PARLIAMENT AS PRESCRIBED PERSONS

Members of the House of Commons were added to the prescribed persons list in 2014 for 'any matter specified in [the] column.' [46] Their inclusion was prompted following a Ten Minute Rule Bill introduced by David Davis MP. As with other persons who become prescribed, a full impact assessment was not conducted. [47] It is submitted that there are five potential impacts which should have been considered.

Firstly, whilst this amendment may support the role of MPs as a force for democratic accountability one must question this reform when disclosure to the Police and non-prescribed regulators are still classed as a wider disclosure requiring stricter evidential requirements. Workers are now more able to obtain protection if they raise a concern to a Member of the House of Commons [48] than if they raise their concern directly to the police or to a non-prescribed regulator. [49]

Second, because Members of the House of Commons may receive concerns about 'any matter specified in [the] column' this has created a peculiar situation whereby a worker who discloses a concern to the wrong prescribed person will not be protected but disclosures about any type of concern to MPs will be protected. This not only creates an imbalance between the various prescribed persons on the list but it also further questions the rationale for why workers must raise a concern within the remit of a particular prescribed person in order to be protected by the law, particularly where the recipient could pass the concern on to the correct prescribed person. Moreover, one must also consider that an MP could refer the concern on to a prescribed person to investigate.

Third, Members of the House of Commons were prescribed by the Order; however, counterparts in the Welsh Assembly and Scottish Parliament were not. This means that workers situated in the devolved regions will not receive the same level of protection as workers in England despite the legislative reach of PIDA otherwise extending to Wales and Scotland. This is particularly stark for those workers in industries wholly within the devolved competence of the Scottish Parliament or Welsh Assembly. Why should a disclosure to their MP, who has no constitutional role in their job, be protected as a second step disclosure, but a disclosure to representative of a devolved body, who has the ability to influence their work, does not?

Fourth, there are a number of practical difficulties that prescription creates. After being prescribed, Members of the House of Commons were not provided training on their role as a prescribed person. Whilst it is axiomatic that the Public Interest Disclosure Act 1998 does not place requirements on prescribed persons to handle concerns in a particular way, a number of prescribed persons have established formal procedures to receive and handle concerns, including dedicated reporting lines and email systems. One must therefore question whether individual MPs possess the required resources to provide an adequate response. MPs also lack the investigatory powers that many, if not all of the prescribed persons with regulatory functions possess. This also identifies a further problem, arguably the strongest power that an MP possesses is the ability to apply public and political pressure. However, in doing so an MP may inadvertently (or even advertantly, if a disclosure is made using parliamentary privilege) expose the whistleblower's position making it difficult for the individual to remain employed.

Fifth, the inclusion of MPs has created sectorial imbalance. This is because whilst private sector employees do not have contractual obligations to be politically impartial, Civil Servants are contractually obliged by virtue of the Civil Service Code. Disclosures to MPs, regardless of political persuasion are likely to result in accusations that the servant is in breach of their code and disciplinary action may result. Whilst it is acknowledged that PIDA should protect this, PIDA provides protection post detriment or dismissal and may not provide a strong enough deterrent from preventing the occurrence of such actions from taking place. Furthermore, any disclosures of documents to MPs may result in breaches of the Official Secrets Act 1989, the common law offence of Misconduct in Public Office as well as further breaches of the Civil Service Code.

3.4 THE PRESCRIBED PERSONS LIST IS NOT FIT FOR PURPOSE

The current prescribed persons list is inadequate. It fails to include regulatory bodies who perform important regulatory roles in the public interest, and fails to reflect the realities of regulatory practice, where such regulators are receiving whistleblowing disclosures, either directly or due to the practice of other regulators in passing on disclosures to them. It is functionally, protectively and communicatively inadequate, and should either be expanded or replaced by a catch-all provision. The following sections consider options for reform.

4.      POSSIBILITIES FOR MINIMUM REFORM: PROPOSALS FOR ADDITIONS TO THE PRESCRIBED PERSONS LIST

The prescribed persons list could be reformed through the addition of further bodies. This would be the quickest way to ensure that disclosures made to certain bodies are treated as second step disclosures. However, seeing this as the only remedy to the problems identified in this piece is problematic, as the issues of line drawing, ministerial inertia and interpretation remain live. This is, therefore, a merely a temporary fix until a more principled solution can be enacted, which will ensure that the prescribed persons list is fit for the purposes that it meant to fulfil in PIDA. This task is attempted in the next part. This part identifies a number of regulators (or those having quasi-regulatory functions) who could be added to the list by statutory order.

4.1 REGULATORY ENFORCEMENT AND SANCTIONS ACT: SEVERAL REGULATORS NOT PRESCRIBED.

The Regulatory Enforcement and Sanctions Act 2008 ('RESA') inter alia, sets out a number of regulators who could be given additional sanctioning powers in order to better fit their sanctioning toolbox to the needs of modern risk-based regulation. [50] Currently, only the Environment Agency and Natural England have been given these powers. For the purposes of reforming the prescribed persons list it is interesting to compare the regulators list in RESA and the current, inadequate, list. The regulators listed in RESA all operate in accordance with risk-based methodologies, and therefore require information to perform their regulatory role. Whilst there is an overlap between the two lists, a number of regulators appear on the RESA list but do not appear on the prescribed persons list. It is suggested that those RESA regulators who do not appear on the prescribed persons list should be added. This would mean that regulators such as the Security Industry Authority, which regulates private security companies the Gangmasters and Labour Abuse Authority and Natural England would be added to the list.

4.2 OTHER PUBLIC REGULATORS WHO ARE NOT CURRENTLY PRESCRIBED.

Whilst RESA provides a good starting point when identifying those regulators to whom a whistleblower may wish to make a disclosure, other regulators who may receive whistleblowing disclosures were identified during the research. For example, the Forensic Science Regulator may receive disclosures from workers within forensic science laboratories. Currently, such workers will have to satisfy the requirements of section 43G. They should not have to, and it is suggested that the FSR is added to the prescribed persons list. [51] Similarly, the Human Tissue Authority and the Medicines and Healthcare Product Regulatory Agency both play important roles in the regulation of healthcare services in the UK, but neither are prescribed persons, despite it being possible to envisage circumstances where a worker may wish to make a disclosure to them. They should be added to the list.

4.3 PROFESSIONAL REGULATORS WHO ARE NOT CURRENTLY PRESCRIBED.

A number of regulators of professionals rely on whistle-blowing disclosures to identify non-compliance with regulatory requirements. Whilst professionals may raise concerns regarding the conduct of fellow professionals with a currently prescribed person in cases where the regulatory non-compliance falls within their remit, there are situations where professional bodies are the more appropriate regulatory entity. In the data supplied by prescribed persons both Monitor and the Scottish Commissioner for Children and Young People shared concerns with professional bodies. Monitor passed information to the General Medical Council, and the SCCYP passed information to the Scottish Social Services Council. In the healthcare sector, following the report of the Francis inquiry into Mid-Staffordshire Hospitals, the government recognised the importance of regulatory bodies being able to receive whistleblowing concerns. The General Chiropractic Council, General Dental Council, General Medical Council, General Optical Council, General Osteopathic Council, General Pharmaceutical Council and Health and Care Professions Council were added to the prescribed persons list in 2014.

However, other professional regulators are not prescribed for the purposes of PIDA. Therefore, in circumstances where a disclosure to, for example, the Solicitors Regulation Authority, a direct disclosure to the body deemed best able to address the concern would have to meet the third step disclosure tests. It is submitted that that professional regulators who exercise disciplinary jurisdiction over professions should be able to receive disclosures as a second step. The Financial Reporting Council, who perform some disciplinary functions in relation to accountants are already prescribed, and an extension of this function would be worthwhile.

4.4 AUDITORS

The Public Interest Disclosure (Prescribed Persons) (Amendment) Order (Northern Ireland) 2012 prescribes auditors of public bodies. It is possible that this should be inserted into the order that applies to England, wales and Scotland, given the changes to local authority audit following the abolition of the audit commission, and, further, consideration should be given to extension to the auditors of all bodies when they are performing a statutory audit under the . Currently an employee who makes a disclosure of wrongdoing to the auditor of their company must satisfy the requirements of section 43G in order to receive protection. This seems to place a barrier on disclosures that could undoubtedly be useful to auditors in performing their statutory function of assessing whether corporate accounts present a true and fair reflection of the financial position of the company.

4.5 TRADE UNION HEALTH AND SAFETY REPRESENTATIVES

A final category of individuals who could be considered for prescription are union health and safety representatives. The individuals were suggested as candidates for prescription during the debates surrounding the adoption of the Act.  However, they were rejected, with the government of the day preferring to leave the status of Trade Union representatives as a matter for negotiation between employers and workers, with the possibility that the representatives could be referred to in an employment contract or a policy as the type of person who a first step disclosure may be made to. It may be that the time has come to revisit this decision.

4.6 THE NUMBER OF PRESCRIBED PERSONS SHOULD INCREASE

The aforementioned analysis identifies that there are a number of bodies who should be added to the prescribed persons list. There seems little reason that the regulators who appear in the schedule to RESA are not added to the list. Similarly, anomalies like the FSR should also be added. There are greater debates surrounding professional regulators, but if the goal is to increase the protection for workers and to ensure that the broadest range of disclosures are encouraged then consideration should be given to adding them, particularly where the regulator performs a professional discipline function.

5.     POSSIBILITIES FOR RADICAL REFORM: THREE POSSIBLE OPTIONS

Beyond the additions to the prescribed persons list, it seems clear that to make section 43F fit-for-purpose there needs to be some consideration given to whether more radical changes are needed to ensure that workers protection when they make disclosures to a regulator is not dependant on the drafting of the prescribed persons list. Three alternatives are suggested, two of which involve redrafting of section 43F, and a third which involves a more radical reform of whistleblowing arrangements to add an ombudsman.

5.1 REPLACE WITH A 'CATCH ALL' PROVISION: REGULATORS WITH A PARTICULAR FUNCTION.

The first way that the prescribed persons list could be replaced is by providing the protection of section 43F to all those who make a disclosure to a person with a particular function. This could be achieved by amending section 43F to replace "prescribed by an order made by the Secretary of State for the purposes of this section" with "exercising a regulatory function." Regulatory functions could be defined to include providing advice on how to comply with regulatory requirements (however these are imposed) and sanctioning or providing redress in the event of a failure to comply with such requirements.  This would have the conferring a broad scope on section 43F. All possible regulators would be included, and all possible disclosures would be protected, provided that there was a subjectively reasonable belief that the regulator was an appropriate person to receive the disclosure. Where there was dispute about a regulatory function this would be a matter for the employment tribunal to decide, but the weight to be given to the goals of PIDA in affording protection to the greatest number of workers in order to ensure that the disclosures are encouraged would tend in favour of a finding that the recipient was exercising a regulatory function. [52] However, this functional wording would not include auditors or trade union safety representatives if it were decided that they should be included, as they are not traditionally seen as performing a regulatory function. Similarly, elected representative, such as MPs, are unlikely to be seen as performing a regulatory function. Therefore, special provision would have to be made for them if they were to be included. The functional approach appears to be the best way to ensure that regulators are able to receive disclosures without needing to be added to an ever-expanding and ever-changing list, and to ensure that employees receive protection when they make disclosures in the way that was envisages when PIDA was drafted.

REPLACE WITH A 'CATCH ALL' PROVISION: REGULATORS WITH A PARTICULAR FORM.

A second approach could be to define disclosure made to bodies having a particular form as disclosure falling within section 43F. One possible form that could be considered is using 'statutory bodies' as the appropriate form. Another suggestion is to use bodies created either by statute or by royal charter. Using the royal charter formulation would have the advantage of catching many professional bodies. However, using form as a defining characteristic would have the potential to be both over and under-inclusive. It may be that the evolution of regulatory supervision will lead to some regulatory functions being performed by private bodies. These bodies would not fall with a definition that focused on form, and this would disadvantage workers in the sectors where this regulatory form is adopted. It may also provide an incentive for self-regulatory mechanisms to be adopted as avoidance mechanisms, although the presence of 43G would limit the utility of this to regulated bodies. However, the need to amend to take into account any changes in form of regulators renders this approach less attractive than the approach based on function, which is more capable of being futureproof.

5.2 ESTABLISH A DEDICATED WHISTLEBLOWING AGENCY.

Another potential reform could be to establish an ombudsman service, or 'whistleblowing agency' which is tasked specifically to deal with whistleblowing matters. [53] It is suggested that the body could take one of three forms. Firstly, it could investigate concerns and make findings requiring corrective action. Second, it could provide a referral service, acting as the first port of call for whistleblowing disclosures before passing them on to the relevant prescribed person. Thirdly, it could act as an oversight mechanism, providing oversight as to how organisations and regulators deal with whistleblowing concerns. [54]

If an ombudsman-like body were to be established one must consider whether a regulator should investigate wrongdoing or investigate the handling of whistleblowing concerns by others. There are a number of well-established ombudsmen services already operating in the United Kingdom. The Parliamentary Ombudsman and the Local Government Ombudsman have a more general remit across a range of public services in comparison to a number ombudsmen tasked with a focus on individual sectors. [55] Ombudsmen have traditionally focussed on maladministration, namely the way in which an organisation has dealt with a matter rather than looking into specific allegations of wrongdoing. In this sense, ombudsmen traditionally fulfil an oversight rather than a regulatory role. Emphasis is placed on whether the complainant and the organisation have sought to resolve matters prior to involving the ombudsman. In the public services context, for example, an 'MP filter' is in place whereby the Parliamentary Ombudsman can only receive complaints from Members of Parliament on behalf of the public. [56] The MP filter encourages early resolution whilst managing available resources. The distinction between regulator and oversight mechanism may not be overly broad. Many Ombudsmen do have investigatory powers enshrined in statute. Moreover, membership of the United Kingdom and Ireland Ombudsman Association is shared with a number of high profile regulators.

The New Zealand Office of the Ombudsman provides an example not dissimilar in function to the UK Parliamentary Ombudsman. In contrast, the NZ Ombudsman can both directly receive and investigate complaints provided that the whistleblower has reasonable grounds that the organisation has decided not to investigate the matter, has not made progress with the investigation within a reasonable time or has investigated but not taken any action. [57] The NZ Ombudsman has the power to initiate its own investigations which sets the organisation apart from a referral service, however, like the UK Parliamentary Ombudsman emphasis is placed on investigating matters concerning maladministration rather than wrongdoing per se. Whilst the NZ Ombudsman does not have an MP filter, the Protected Disclosure Act 2000, New Zealand's equivalent of PIDA is more procedurally rigid thus effectively reducing the potential number of complaints received. [58] The Canadian Public Sector Integrity Commissioner in Canada (PSIC) and the Anti-Corruption & Civil Rights Commission in South Korea provide sector and subject specific examples of agencies which can investigate and make findings of wrongdoing. [59] In Canada, for example, the PSICcan appoint a conciliator at any point during the investigatory process. [60] These are significant powers, aside from general findings of wrongdoing by regulators; the best opportunity workers in the UK have to obtain whistleblowing specific findings of wrongdoing against their employer is in an Employment Tribunal judgment. However, the impact of this is diminished by how the whistleblowing law (and indeed civil procedure) works in the UK. Workers often settle their claim outside of the tribunal and are encouraged to do so. Employment Tribunals are primarily focussed on the actions of employers towards the worker and are consequentially less focussed on the substance of the concern itself.

If the United Kingdom were to establish a body or person with the power to investigate acts of wrongdoing, this would likely result in a costly and resource intensive undertaking. Part of the difficulty in establishing such a body belies in the way in which whistleblowing has been legislated in the UK. The Public Interest Disclosure Act 1998 covers all sectors. One must ask whether it could be realistic to have an investigatory agency which could cover all sectors. The Canadian and South Korean examples above are sector specific examples backed by sector and subject specific whistleblowing protection. The New Zealand example is much broader in scope but the remit of the Office of the Ombudsman (NZ) does not extend to private bodies. Practically, the body would need expertise in so many different sectorial areas that it would be very difficult for it to function effectively. It would need extensive statutory underpinning to facilitate investigation of every organisation in every sector of the United Kingdom. Moreover, the organisation would need significant resources to be effective. The nearest comparable organisation is the Netherland's House for Whistleblowers ('Huis Voor Klokkenluiders') which has so far failed to complete a single investigation since it was established in 2016. The House had to effectively restart with a new management board. [61]

In reality, the provision of a new investigatory mechanism in the United Kingdom would effectively provide a new regulator, tasked to investigate complaints of wrongdoing normally within the remit of others. The question of whether the UK needs a new regulator tasked specifically to deal with whistleblowing may be indicative of the current situation. It is clear from the authors' research that regulators can and should be more effective in the handling and investigation of whistleblowing concerns. The process of prescribing regulators has afforded better protection to individuals raising certain types of concerns but has not necessarily prompted effective concern handling and investigatory processes.

Rather than providing a new 'investigator,' it is suggested that enhancements to the current regulators should be explored. It has been identified by the authors that some regulators have struggled with handling whistleblowing concerns, often dealing with them using the same process as public complaints. The establishment of a referrals service for whistleblowing concerns could ensure that whistleblowing concerns receive special recognition. It could also remove problems with workers needing to identify the correct regulator to deal with their concern.

There are several considerations as to how a referrals service might operate. It could provide employment law advice as well as taking specific details which are then passed on to a regulator. It could track the concern from the start of the process until its conclusion. It could do all of these things or simply refer the concern on. Again, an agency of this nature would require significant resources. To support the existing legislative regime, the agency would need to cover all sectors. This would require a significant staffing to respond to queries as well as making referrals. Any such referral service would be under considerable pressure to be effective; staff would need to promptly refer the concern on. They may also encounter the same difficulties currently faced by regulators, what happens if individuals raise concerns but wish to remain anonymous? Could the person receiving the concern ask the right questions? The main advantage of direct calls to regulators is that in circumstances where an urgent regulatory response is required, or where, due to fear or time limitations the caller is constrained by the information they give, the regulator has specific expertise on the information in question and will be able to ask questions aimed at maximizing the information needed to carry out their regulatory function. Regulators are likely to know what information identifies a serious regulatory breach and the best way to deal with such a breach. Moreover, research by the authors has previously identified that regulators are not effective in tracking or monitoring information passed on to another regulator. [62] This suggests that if such a referral service were to exist it would be reliant upon close co-operation between the referral service and the recipient. The current situation suggests that some regulators struggle to centrally record whistleblowing concerns or record them in the same way as public complaints. The tracking of referred whistleblowing concerns is likely to require a significant overhaul of regulatory practice across the board. One must also consider whether a referral service could be effective without any form of underpinning statutory oversight powers.

The aforementioned discussion has highlighted some of the benefits and difficulties associated with creating an investigatory or referral service. The final role that an ombudsman or agency could take is as a 'regulator of the regulators.' This would have a considerable advantage of over the other two options in that the individual regulators retain their regulatory function to receive and investigate complaints of wrongdoing or malpractice. Any whistleblowing oversight body could be tasked with ensuring that the regulators handle such complaints effectively. The body could also provide best practice guidance to regulators, training staff to handle calls whilst recognising that regulators need a certain level of autonomy to allow for sectorial differences in practice. The body could provide oversight by requiring periodic data from regulators, acting on this data where necessary as well as fielding complaints with regard to the handling of concerns.

To be effective the body would likely need statutory underpinning and possibly regulations to require the regulators to be compliant.  One must again question whether such a body could be feasible in the current regulatory landscape. The prescribed persons list not only covers a considerable number of national regulators, but also several hundred local authorities with regulatory functions for food enforcement, environmental and health and safety matters. In an age where regulators and local authorities are accepting cuts which are having an impact on staffing and resources, a whistleblowing ombudsman or oversight body may be closer to an ideal rather than a reality. Substantial legislative reform and considerable funding would be needed to make such an organisation work in practice.

The establishment of a whistleblowing ombudsman or agency would mark a significant departure from the passage of PIDA where it was suggested at Committee Stage that the Act, if passed would not result in new regulation. Oversight of regulators is already carried out by Parliamentary Select Committees, perhaps it would be sensible for those committees to consider asking questions on whistleblowing arrangements, at least in the interim.

In order to be consistent with the current 'stepped disclosure regime' a whistleblowing agency or ombudsman would need to be either inserted into the prescribed persons list by way of an amendment order. If the new body were to be a referral service, legislators may wish to place it before the prescribed persons list as a new step two disclosure, making disclosures to a prescribed person a step three disclosure, and wider disclosures subject to a new step four. If added to the prescribed persons list the body would be placed at the same level of the hierarchy as regulators. Regardless of which option is preferred the introduction of the new body using the existing PIDA framework is likely to lead to more complexity, further weakening the already fractured foundations.

5.3 IMPROVEMENTS ARE NECESSARY AND REQUIRE LEGISLATIVE REFORM.

Redrafting section 43F on functional lines has the potential to provide greater protection to whistleblowers whilst encouraging disclosures to be made.  Using form has the potential to be either under or over inclusive, whilst an ombudsman gives rise to too many questions to be seen as a near term solution. From the authors' research, recent consultations and calls for reform, it is evident that significant improvements need to be made, not only to the level of protection afforded to workers but also to dealing with public interest concerns. Both spheres of reform should not be considered in isolation but likewise cannot be rectified using the existing legislative framework which was principally aimed at protecting the worker. The over complex nature of the prescribed persons list is detrimental to this principle aim.

6.      CONCLUSION

The Public Interest Disclosure Act 1998 provides an avenue to allow workers to make a claim to an employment tribunal after they have suffered detrimental treatment or have been dismissed. The Act is completely silent on what should happen to the public interest concern. Whilst several regulators are prescribed, this prescribed 'status' does not require them to respond to concerns in a particular way or to offer protection to the whistleblower. Prescribed status does make it easier for claimants to obtain protection under s.43F, however as this article has identified, there are several important national regulators and professional bodies performing a regulatory function who are not prescribed. The current legal regime is overly complex and there appears to be little justification for why some regulators are prescribed whilst others are not.

The current halfway house provisions in PIDA are in need of extension and redecoration. The statutory provisions in section 43F encourage disclosures to regulators, who are better placed to deal with breaches disclosed to them than to members of the public. However, there is a need to reconsider the prescribed persons list. It is submitted that the best approach would be to remove the prescribed persons list altogether, and create a definition based on the function of the body to whom the disclosure is made. If the person making the disclosure reasonably believes that the body is able to address the concern, then the disclosure should be treated as a second step disclosure. This has the effect of giving greater protection to the public whilst encouraging more disclosures, fulfilling the goals and role of PIDA more fully.  

In addition to the many problems highlighted in this article, it should be noted that there is an increasing realisation that whistleblower protection laws should place requirements on the recipient to protect the whistleblower and to deal with the public interest concerns. The forthcoming EU directive on whistleblowing is indicative of this trend. Article 6 of the draft Directive would place a requirement on competent authorities to 'protect the confidentiality of whistleblowers,' to take 'necessary measures and investigate the concern' and to 'give feedback in a reasonable timeframe.' [63] Whilst the circumstances surrounding Brexit mean that the future of the United Kingdom's relationship with Europe on legislative matters is uncertain, the analysis in this article suggests that the Public Interest Disclosure Act 1998 will fall far short of the new standards.



[1] Public Interest Disclosure Act 1998, preamble.

[2] See e.g. David Lewis, Nineteen years of whistleblowing legislation in the UK: is it time for a more comprehensive approach? (2017) 59(6) International Journal of Law and Management 1126. See also, Chris Baines, 'Whistleblowing law 'wholly inadequate' for protecting staff who speak out, say MPs and campaigners' The Independent (London 21 July 2018).

[3] For more information, see further Register of All Party Parliamentary Groups: Whistleblowing. Accessible via: https://publications.parliament.uk/pa/cm/cmallparty/180829/whistleblowing.htm

[4] Hansard, HC Deb 18 July 2018 Vol 645, Cols 161WH-176WH.

[5] An argument advanced further by A.Savage and R.Hyde, 'the Response to Whistleblowing Concerns by Regulators: A Practical Perspective' (2014) 35(3) Legal Studies 408.

[6] For detailed consideration of the implications of raising concerns see further: M.P. Miceli and J.P. Near, Blowing the Whistle: The Organizational & Legal Implications for Companies and Employees (Lexington Books 1992) 179.

[7] See for example: R. Greaves and J.K. McGlone, 'The Health Consequences of Speaking Out' [2014] 6 Social Medicine 4, 259, M. Pecoraro, M.S. Houwerzijl, E. van der Meulen, 'Mental Health Problems Among Whistleblowers: A Comparative Study' [2018] Psychological Reports. Accessible via: http://journals.sagepub.com/doi/10.1177/0033294118757681 [Accessed 23 October 2018]. For the use of mental health as retaliatory tactic see: K. Kenny, M. Fotaki, S. Scriver, 'Mental Health as a Weapon: Whistleblower retaliation and normative violence'  [2018] Journal of Business Ethics. Available at: https://pure.qub.ac.uk/portal/files/149331618/10.1007_2Fs10551_018_3868_4.pdf   [Accessed 15 September 2018].

[8] Unnecessary in the sense that the situation could be avoided by the recipient organisation who could respond and act upon the concern.  

[9] A Yougov survey commissioned by the whistleblowing charity 'Protect' suggests that 63% of respondents were "…either unaware or believed that there was no protection for whistleblowers." See further, Protect, Attitudes to Whistleblowing. Accessible via: https://www.pcaw.org.uk/attitudes-to-whistleblowing/ [Accessed 23 October 2018].

[10] Including Guja v Moldova (2011) 53 E.H.R.R. 16 and Heinisch v Germany [2011] I.R.L.R. 922.

[11] Settlements are governed by Employment Rights Act 1996, s.111A.

[12] Public Interest Disclosure Act 1998, s.43J voids any agreement which may prevent a person making a public interest disclosure, provided the individual meets the requirements contained within s.42B. However, this provision is yet to be fully tested by the courts. For discussion, see further: J.Laddie, 'Gagging Clauses For Whistleblowers: Worth The Paper They're Written On?' Inforrm, 26 February 2013: https://inforrm.wordpress.com/2013/02/26/gagging-clauses-for-whistleblowers-worth-the-paper-theyre-written-on-james-laddie-qc/ [Accessed 24 October 2018].

[13] Hansard, HL Deb 11 May 1998, Col 890.

[14] A.Savage and R.Hyde, 'the Response to Whistleblowing Concerns by Regulators: A Practical Perspective'[2014] 35:3 Legal Studies, 408. The authors sent freedom of information requests to 408 local authorities and 48 national regulators. For information on the methodology used see further: A. Savage and R. Hyde, 'Using freedom of information requests to facilitate research' [2014] 17 International Journal of Social Research Methodology 3, 303-317. See also: A. Savage and R. Hyde, Richard Local authority handling of Freedom of Information requests: lessons from a research project' [2013] 19 Web Journal of Current Legal Issues 2, accessible via: http://webjcli.org/article/view/240/315 [accessed 24 October 2018].

[15] National Audit Office, The Role of Prescribed Persons, 2015, HC 133. The National Audit Office is responsible for scrutinising public spending of central government departments, government agencies and non-departmental public bodies.

[16] A similar impact was also found in government departments. See A.Savage, Leaks, Whistleblowing and the Public Interest: The Law of Public Interest Disclosures (Edward Elgar, London), Chapter 5.  

[17] See further, Whistleblowing in deposit-takers, PRA-designated investment firms and insurers, PS15/24. Accessible via: https://www.fca.org.uk/publication/policy/ps-15-24.pdf [Accessed 24 October 2018]. This policy statement was also extended to include UK branches of foreign banks Whistleblowing in UK branches

of foreign banks PS17/7. Accessible via: https://www.fca.org.uk/publication/policy/ps17-07.pdf [Accessed 24 October 2018].

[18] Freedom to Speak Up: An independent review into creating an open and honest reporting culture in the NHS, 2014: http://freedomtospeakup.org.uk/wp-content/uploads/2014/07/F2SU_web.pdf [Accessed 24 October 2018].

[20] See for example, UK regulators criticised for fine on Barclays chief C. Binham, M. Arnold, K. Martin and P. Jenkins UK regulators criticised for fine on Barclays chief, Financial Times, London, 20 April 2018. Accessible via:   https://www.ft.com/content/f8a5160e-4482-11e8-803a-295c97e6fd0b [Accessed 24 October 2018].

[21] These may overlap, but it should not be assumed that a public law duty will give rise to a corresponding duty in private law (see e.g. Stovin v Wise [1996] AC 923)

[22] For information see consultation webpage. Accessible via:  https://beisgovuk.citizenspace.com/lm/whistleblowing/ [Accessed 24 October 2018].

[23] See Department for Business, Energy and Industrial Strategy, Whistleblowing: Prescribed Persons Guidance, 2017. Accessible via: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/604935/whistleblowing-prescribed-persons-guidance.pdf [Accessed 23 October 2018].

[24] The Public Interest Disclosure (Prescribed Persons) (Amendment) Order 2014. For discussion and critique see further below. 

[25] See further, European Parliament, First EU-Wide Protection for Whistle-Blowers Agreed, Press Release, 12/03/2019:  http://www.europarl.europa.eu/news/en/press-room/20190311IPR31055/first-eu-wide-protection-for-whistle-blowers-agreed [Accessed 22 March 2019].

[26] Proposal for a Directive of the European Parliament and of the Council on the protection of persons reporting on breaches of Union law https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A52018PC0218 [Accessed 22 March 2019].

[27] Subject to any final deal reached between the UK and EU.

[28] Section 43B PIDA. There have been suggestions to broaden this list - see The Whistleblowing Commission, Report on the Effectiveness of Existing Arrangements for Workplace Whistleblowing in the UK, 2013. Accessible via:  https://s3-eu-west-1.amazonaws.com/public-concern-at-work/wp-content/uploads/images/2018/09/08222935/wbc-report-final.pdf [Accessed 24 October 2018].

[29] F. Shauer, Free Speech: A Philosophical Enquiry (CUP, Cambridge, 1982) 105.

[30] On the meaning of "public interest" in this context see Chesterton Global Ltd (t/a Chestertons) v Nurmohamed [2017] EWCA Civ 979; [2018] 1 All ER 947, [37] per Underhill LJ.

[31] Section 43C PIDA.

[32] Section 42C PIDA. However, employers are not required to put in place a whistleblowing policy.

[33] Section 43E PIDA.

[34] Section 43F(b) PIDA.

[35] Where a disclosure is in the public interest, this disclosure will not amount to a breach of confidence, see further   Lion Laboratories v Evans [1985] QB 526, and more recently HRH the Prince of Wales v Associated Newspapers Ltd   [2006] EWCA Civ 1776, [2008] Ch 57 and ABC v Telegraph Media Group Ltd [2018] EWCA Civ 2329.

[36] This means that protection is more likely to be afforded under section 43G where the disclosure is made to a recipient with powers to do something about the concern compared to when the disclosure is made to a person who has no such power, See Public Interest Disclosure Act 1998, s.43G(3).

[37] The Public Interest Disclosure (Prescribed Persons) (Amendment) Order 2017, SI 880 and The Public Interest Disclosure (Prescribed Persons) (Amendment) Order 2018, SI 795.

[38] See further Julia Black, 'The decentred regulatory state?' in Peter Vass (Ed), CRI Regulatory Review 2006/2007 (Centre for the Study of Regulated Industries, University of Bath 2007), Tony Prosser, The Regulatory Enterprise: Government, Regulation and Legitimacy (Oxford: OUP, 2010); Anthony I. Ogus, Regulation: Legal Form and Economic Theory (Oxford: Hart, 2004); and Hood et al, Controlling Modern Government: Variety, Commonality and Change (Edward Elgar 2004)

[39] Savage and Hyde, above note 5.

[40] Hansard HL Deb 11th May 1998 col 890

[41] In the judgment FIMBRA stands for the Financial Intermediaries, Managers and Brokers Regulatory Association.

[42] Lord Haskel HL Deb 05 June 1998 vol 590 column 621.

[43] [1989] Ch 477.

[44] Gartside v Outram [1856] 26 LJ.

[45] Ofsted, Whistleblowing to Ofsted about Local Authority Safeguarding Services: Policy and Guidance for Whistleblowers (Ofsted, 2010)

[46] The Public Interest Disclosure (Prescribed Persons) (Amendment) Order 2014.

[47] See explanatory note to the Order, Ibid.

[48] This would constitute a disclosure under Public Interest Disclosure Act 1998, s.43F.

[49] This would constitute a disclosure under Public Interest Disclosure Act 1998, s.43G or s.43H.

[50] Regulatory Enforcement and Sanctions Act 2008, Schedule 5.

[51] The Forensic Science Regulator Dr Susan Tulley also wrote a letter to this regard highlighting the gap in protection and her desire to be prescribed. At the time of writing this had not been acted upon: https://www.parliament.uk/documents/commons-committees/science-technology/Correspondence/2018-03-16-Letter-from-Science-Regulator.pdf [Accessed 24 October 2018].

[52] Such an interpretation might also be bolstered by section 6 of the Human Rights Act 1998 read with article 10 ECHR.

[53] For example, WhistleblowersUK have suggested the establishment of an 'Office for the Whistleblower' see further: The compelling case for a national Office for the Whistleblower, accessible via:  https://www.wbuk.org/new-page/ [Accessed 24 October 2018].

[54] It could, of course, conduct all three functions.

[55] See Trevor Buck, Richard Kirkham and Brian Thompson, The Ombudsman Enterprise and Administrative Justice (Ashgate 2011).

[56] Section 5(1)(a) Parliamentary Commissioner for Administration Act 1967.

[57] Protected Disclosures Act 2000 (New Zealand), s.10.

[58] For example, see Protected Disclosures Act 2000 (New Zealand), s.7 whereby disclosures must ordinarily be made in accordance with internal procedures. In contrast the Public Interest Disclosure Act 1998 (United Kingdom), s.43B is much more flexible.

[59] For information on the role of PSIC Canada see further: Office of the Public Sector Integrity Commissioner of Canada, Annual Report 2017-2018, accessible via: https://www.psic-ispc.gc.ca/sites/default/files/sites/default/files/annualreport17-18final_pdf_en.pdf [Accessed 25 October 2018]. For information on the South Korean  Anti-Corruption & Civil Rights Commission see: Anti-Corruption & Civil Rights Commission, 2017 ACRC Annual Report, accessible via:  http://www.acrc.go.kr/en/board.do?command=searchDetail&method=searchDetailViewInc&menuId=020504&confId=64&conConfId=64&conTabId=0&currPageNo=1&boardNum=69448 [Accessed 25 October 2018].

[60] This is enshrined in law, see further: Public Servants Disclosure Protection Act 2005 (Canada), s.20.

[61] See further, Huis Voor Klokkenluiders, Annual Report 2017, accessible via: https://huisvoorklokkenluiders.nl/wp-content/uploads/2018/07/Annual-Report-Whistleblowers-Authority-2017.pdf [Accessed 24 October 2018].

[62] A.Savage and R.Hyde, 'the Response to Whistleblowing Concerns by Regulators: A Practical Perspective' (2014) 35(3 )Legal Studies 408.

[63] Proposal for a Directive of the European Parliament and of the Council on the Protection of Persons Reporting on Breaches of Union Law: http://www.europarl.europa.eu/RegData/docs_autres_institutions/commission_europeenne/com/2018/0218/COM_COM(2018)0218_EN.pdf [Accessed 22 March 2019].