Memorandum from Public Concern at Work
Public Concern at Work is an independent charity
and legal advice centre. Popularly known as the whistleblowing
charity, we have four key activities:
providing free confidential advice
to people concerned about wrongdoing in the workplace but who
are unsure whether or how to raise the matter;
providing training and consultancy
to employers, unions and professional bodies on workplace cultures
and communication and on compliance and governance;
contributing to public policy on
these issues; and
seeking to create a culture where
people feel there is a safe alternative to silence.
Now 10 years old, we have handled over 3,000
whistleblowing concerns and our helpline achieves recommendation
rates of 90%. While it has been promoted through the media and
advice agencies, the largest referral source now is employers'
whistleblowing policies. These employers include government departments,
local authorities, the NHS and leading PLCs. One half of our expenditure
is met by the fees we earn from our training and consultancy work,
while the other half comes from voluntary donations.
Within two years of our launch, or approach
to whistleblowing had been endorsed by the Committee on Standards
in Public Life and by the Audit commission. In 1995 and 1996,
MPs asked us to prepare and promote draft legislation on whistleblowing,
which was secured wide support in and out of Parliament. In its
White Paper The Governance of Public Bodies, the last Conservative
Government described us as "the Leading organisation in this
In 1997, the new Labour Government asked us
to assist it and Richard Shepherd MP in formulating, consulting
on and promoting the Bill which became the Public Interest Disclosure
Act (PIDA). While technically a piece of employment law, this
legislation was and remains supported by the CBI, IoD and TUC.
For our work on PIDA, Lord Nolan commended us in Parliament "for
so skilfully achieving the essential but delicate balance between
the public interest and the interests of employers". The
Government has restated its strong support for PIDA in this Parliament
and last year amended both the Employment Act and the Police Reform
Act in consequence. Last year the Financial Services Authority
launched an initiative on whistleblowing (www.fsa.gov.uk/whistle)
which drew heavily on PIDA and our role.
Both at home and abroad, our approach to and
work on whistleblowing is seen as having a key role to play in
deterring and detecting corruption. We produced the 2000 OECD
report for the review of the Anti-Bribery Convention and acted
as special advisers at the Global Forum in 2001 in its preparations
for UN convention. We have chaired and addressed DTI, DfID and
Home Office events on tackling corruption, during which speakers
from unions and business have stressed the role whistleblowing
policies can play. Our work advising on whistleblowing legislation
in South Africa, the Netherlands, Lithuania and Japan has always
been seen as relevant to national strategies to combat corruption.
We also work closely with Transparency International both at home
and abroad on whistleblowing legislation.
We would be grateful if the Committee could
consider one point in relation to the drafting of the Bill and
one point of wider policy.
1. Principal's consent: no corruptionClause
The Explanatory Notes state the effect of clause
7 is to "exclude from the offences cases where the agent's
principal knows of all the material circumstances surrounding
the conferring of the advantage and consent to it." The Notes
then explain that sub-clause (2) extends the exemption to where
"the defendant may have a mistaken but genuine belief"
that the principal did consent or would have consented had he
been aware of the circumstances.
The terms of clause 7(2) of the Bill, however,
do not include any qualifying adjective as to the honesty or reasonableness
of the defendant's belief. From the Explanatory Notes, we imagine
this is a drafting omission that the Government will be keen to
put right. If, however, the Government's position s not settled,
then we ask the Committee to recommend that the defence should
only apply where the belief is "reasonable" or, should
it prefer "genuine". Without some such qualification,
we think the exception is too wide in that it will apply where
the belief is unreasonable or where it is not honestly held.
We think such a qualification would be both
prudent and just if the Bill were providing a defence for the
agent to invoke and establish in these circumstances. However,
the fact that clause 7 is as an exception rather than a defence,
we take to mean that it will be for the prosecution to prove that
the defendant did not believe his principal would have consented.
If this is so, then we consider it necessary that that belief
be reasonable or genuine. Otherwise a mere assertion by an agent
that he believed his principal would have consented would thwart
a prosecution, however serious the case and however compelling
the other evidence.
2. THE PUBLIC
In our view the main benefit of such a Bill
will be its declaratory effect and its consequential deterrent
effect on conduct. As much of the impetus behind this Bill and
Recent international initiatives has been concern about perceived
and actual corruption by business to secure lucrative contracts,
we ask the Committee to recommend that the Government consider
whether the Bill can address this in a practical and helpful way.
In our view, a desirable practical consequence
of the Bill will be if it actively encourages organisations where
there is a risk:
to adopt a clear policy or statement,
with sanctions, against corruption;
to provide and promote routes through
which staff are able to seek advice on and to report suspected
instances of corruption; and
to act consistently with it.
There are three ways in which we believe the
Bill might actively do this. First, consistent with the approach
in the draft Bill, an exemption might be provided in these circumstances
for an employer in relation to the corrupt activity of one of
its employees. Alternatively, it might be simpler to provide such
an employer with a due diligence defence on this basis. The third
option would be for the Bill to expressly state that such conduct
by the employer is a mitigating factor to be considered at sentencing.
We believe that if there is a provision along
these lines, the Bill will provide responsible business and employers
with a level of certainty that they are entitled to. As importantly,
it will enhance the Bill's deterrent effect by prompting organisations
to take practical steps to create and maintain working environments
that are inimical to corruption. On this point, in our experience
and from the views expressed to the Financial Services Authority
and at the DTI's anti-Corruption conference, employers see the
benefits of such steps as easily outweighing any burden. Finally
when so much of the interest overseas in following the UK's lead
on whistleblowing is coming from an anti-corruption perspective,
we think such a provision in the Bill would reassert and strengthen
the UK's position at the forefront of international efforts to
We hope that we have provided sufficient information
for the Committee to consider these two points at this stage.
Needless to say, if we can be of assistance to either the Committee
or the government in taking either of these points further we
will be happy to offer such help as we can.