Whistleblowers play a key role in exposing corruption, public safety scandals and unethical behaviour. Unfortunately, all too often they can suffer fear, silence, and loneliness  just from telling the truth. 

Protect, along with our partner, WIN (Whistleblowing International Network) is supporting the campaign #TruthNeedsFriends by the Green/EFA Group in the EU Parliament which hopes to educate the wider public and employers about whistleblowing and why its so vital for society.

The European Union is on the verge of enacting new legislation that would change the lives of people who reveal the truth. People who tell the truth shouldn’t be punished. The  Green/EFA Group in the EU Parliament is campaigning to ensure that the law does what it is meant to.

The new European Whistleblower Directive would oblige all EU governments to introduce minimum standards of protection for truth-tellers. These protections would include penalties for people that retaliate against whistleblowers or try to shut them up; an obligation for public and private bodies to set up channels for receiving reports and to keep the identity of the whistleblower confidential; and legal shields for whistleblowers so that, if for example they breach a confidentiality agreement, they would not be held liable for it.

So far, the European Parliament has been the strongest in defending the right to the truth. Now, the Parliament has to negotiate with the European Commission and the Council (where all the EU governments are represented) in order to draft the final version of the much-awaited whistleblower protection law. It’s a race against time to get the text right and adopt it before the upcoming European Parliament elections.

People who tell the truth shouldn’t be punished. It’s time to call on EU governments to protect whistleblowers, because right now, the #TruthNeedsFriends.

Take action here: https://www.greens-efa.eu/en/truthneedsfriends/

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A governance report into local authorities by the National Audit Office (NAO)  has found one in six councils do not have their whistleblowing policies easily available on their websites,  and of the policies that the NAO could find –  24% were out-of-date.

The report, Local Authority Governance, published 15 January, acknowledged the challenges facing local authorities due to increased cuts and the report states, ‘Governance arrangements have to be robust in this challenging context or this creates a risk that authorities will not be able to deliver their objectives.’

Protect’s acting Chief Executive, Jon Cunningham said, “We work with many local authorities across the UK. Many come to see the benefit of our work and whistleblowing as a risk governance tool only after a particularly unsavoury scandal has hit the press. We would like to be working with more local authorities to prevent risk and problems and those negative headlines in the first place. Local authorities are accountable to the communities they serve, and it’s not good enough to be providing out of date information on whistleblowing or failing to be transparent with no whistleblowing information on council websites.”

He added, “We know local authorities are under unprecedented pressure with reduced budgets, but with these challenges, as the NAO report acknowledges, comes increased risks to services. Now more than ever, local authorities need to sit up and realise whistleblowing works and can keep services and the community it serves, safe.”

 

 

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Protect Head of Policy Andrew Pepper-Parsons attended conference Exposing Secrets: the past, present and future of U.S. National Security Whistleblowing and Government Secrecy which brought together academics, legal experts, journalists and a few US national security whistleblowers to debate the issues.

The two-day conference on US national Security whistleblowing aimed to take a historic look at national security whistleblowing to see if fresh perspectives could be found. 

Why does history matter?  For me this was an interesting approach as the cases of prosecutions of national security whistleblowers are low in both the US and UK. Five in the US since 2015, and the last prosecution brought to trial in the UK was 2006.[1]  The legal frame work in both countries creates an offence with no public interest defence. Also in the US and the UK, the classification of secrets is held by the executive (in the UK this would be Ministers, in the US, the President) and  no way challenge abuses and decisions over what should be classified.

This all creates a secret space where the intelligence community operates, where there is little information, especially in the UK, about how these agencies operate.  On top of that we know from whistleblowing best practice in industries and sectors that are more open, that whistleblowing arrangements that lack an independent external route tend to be more flawed. A good example of an external route in the UK is the Financial Conduct Authority regulator which insists they are included as a route for whistleblowers to raise concerns with.

History lessons

History can show us the development beyond the cases that have been brought.  Sam Lebovic, historian of American politics and culture, pointed out that the current system sets the rules of game of disclosing national security secrets between the government and the press but leaves the whistleblower out in the cold.  The Government have strong legal powers to pursue whistleblowers who reveal information to the press, but these laws are not used against the press themselves, due to the First Amendment giving them a strong defence as a publisher.  The First Amendment (Amendment I) to the United States Constitution prevents the government from making laws which respect an establishment of religion, prohibit the free exercise of religion, or abridge the freedom of speech, the freedom of the press, the right to peaceably assemble, or the right to petition the government for redress of grievances. It was adopted on December 15, 1791, as one of the ten amendments that constitute the Bill of Rights.

Such protection  is not available to the whistleblower who is left rather exposed, relying on the journalist to protect them as a source while also hoping the US Government doesn’t independently discover who they are.  An interesting area of research would be to look at the development of these type of measures in the UK to understand how we got to our  current legislation  – for example it would be interesting to examine the historical development of the Official Secrets Act since it was first introduced in 1911.

Can journalists play a role?

Edward Snowden, the NSA whistleblower currently exiled to Russia, who skyped in to the conference,  adds to this by stating that the current system is a reflection of the incentives in place for government.  Their interest is to avoid political embarrassment rather than to hold the intelligence community to account. This informed his decision to use journalists rather than internal routes with an organisation because he had seen Thomas Drake and John Kiriakou both suffer costly legal fights and prison for using these mechanisms.   Thomas Drake, a former senior executive at the National Security Agency, blew the whistle on massive multimillion dollar fraud, waste and abuse, the failure of 9/11, as well as the widespread violations of the rights of citizens through secret mass surveillance programs after 9/11.  Former CIA analyst John Kiriakou was the first US government official to confirm that the US used waterboarding to interrogate terrorism suspects. In 2007, Kiriakou disclosed to ABC News the CIA’s waterboarding of Abu Zubaydah. In 2012, Kiriakou was charged and prosecuted for revealing classified information to the media and in 2013 was sentenced to 30 months in jail.

Snowden believes an independent panel of journalists should be used as an independent mechanism for decisions of disclosure.  This is probably unworkable as journalists would be accused of being biased towards disclosure but Snowden is not wrong on wanting to create a more independent system.

The introduction of a public interest defence and an independent classification system is possible. The Tshwane Principles which is a set of global principles developed by civil society academics and practitioners on balancing the need for government’s to protect sensitive information against the public’s right to know. This is the best route to create a confidential rather than secret space for Government to operate when it comes to national security.

[1] US: https://www.theguardian.com/us-news/2015/mar/16/whistleblowers-double-standard-obama-david-petraeus-chelsea-manning and https://theintercept.com/2018/06/26/reality-winner-plea-deal/ UK: https://www.theguardian.com/media/2008/jan/09/pressandpublishing.freedomofinformation

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Protect attended a public meeting of the All Party Parliamentary Group (APPG) on Whistleblowing at Westminster chaired by Baroness Kramer along with many whistleblowers,  including those with experience in education, care, the NHS and other public services.

Attendees were generally in agreement about the principles of whistleblowing and that greater support for whistleblowers is needed. To this end, Baroness Kramer led a discussion about how attendees had been let down by the law, and what improvements they saw as being necessary. The following issues were raised:

• Extending the cover of whistleblowing law The Public Interest Disclosure Act (PIDA) so it covers more than workers/employees eg school governors, judges and other ‘office holders’, parents, volunteers and students as well as foster parents

• Negative feelings towards the term ‘whistleblower’ were expressed, and the proposal ‘public protector’ was raised. There was some dispute on this as changing the name does not change the action. The benefit of the term whistleblowing is that it is widely recognised.

• A lack of prompt or appropriate response from regulators; regulators can appear unaccountable.

• A public fund to cover whistleblower legal fees was discussed as they deserve to have a fair trial and this is often impossible if they are unrepresented. Whistleblowers act in the public interest and therefore should be publically funded.  The group heard how an individual was at risk of losing their home due to funding legal fees.

• The use of expert industry panels to support or dispute claimants disclosures as being in the public interest and valid as they demonstrate wrong doing. The panel opinion could then be submitted to an Employment Tribunal  or other forum for judgement. ET does not have industry specific knowledge to analyse if wrongdoing is present or if concerns were reasonably held. Panels could sit within professional bodies and would operate a peer review system in analysing disclosures.

• Employment Tribunals were criticised as not understanding the experience or pressures facing whistleblowers. It was suggested that an Office of the Whistleblower could perform this role, or provide significant support in preparation and throughout hearings.

• Holding organisations to account. Two approaches were suggested, firstly there should be consequences for organisations who do not respond effectively to concerns. Secondly, there could be a ‘kitemark’ system for organisations that respond well to concerns, and treat whistleblowers with respect. A further idea to increase transparency would be requesting organisations to disclose the amount they have spent defending whistleblowing claims.

• Organisations should be held to their own whistleblowing policy, breaches of which could be considered contractual breaches.

The session ended on a positive note, attendees felt it to be the beginning of a productive and enthusiastic project. Baroness Kramer encouraged written submissions to the APPG to continue, as work is under way to consolidate information from those involved in whistleblowing to form recommendations for legislative reform.

Protect is keen to support the APPG’s research and proposals, and improve  the landscape for whistleblowers and the public they protect.

 

Please take the APPG whistleblowing survey if you are a whistleblower

 

By Protect Adviser, Laura Fatah

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Academics at Middlesex University have presented Helen Evans, former Global Head of Safeguarding at Oxfam, with their UK Whistleblower Award for 2018.

In 2018, Helen blew the whistle on the systemic sexual exploitation and abuse perpetrated by Oxfam aid workers. Her revelations were one of the biggest charity scandals in recent years.

While Helen worked at Oxfam GB she pleaded for more safeguarding investment and quit in frustration in 2015 when her request fell on deaf ears. She took her concerns to the Charity Commission, yet despite the seriousness of her revelations, they took little action. She went public with a Channel 4 news interview in 2018 when the matter came to national attention following a Times investigation. Her disclosures, and those from others, led to two public inquiries by the International Development Select Committee and Charity Commission.

She said, “The decision to whistleblow was the hardest decision of my life. The impact on my life and my family’s life has been considerable. Yet it doesn’t come close to the devastating impact of sexual abuse perpetrated by aid workers.

“Despite what’s happened I still believe in the charity sector and have confidence the vast majority of aid workers are there for all the right reasons. The sector though must change, and never again approach safeguarding with such complacency”.

Helen has recently taken up post as Chief Executive of a medical charity and has chosen to share today’s Award with the NGO Safe Space. This organisation was founded by Shaista Aziz and Alexia Pepper de Caires in March 2018 to gather testimonies on sexual harassment, exploitation and abuse in the humanitarian aid and international development sector, to provide solidarity to survivors and victims, and to seek accountability and redress.

Professor David Lewis, Head of the University’s Whistleblowing Research Unit, said, “Helen’s persistence and courage were key factors in her winning this Award”.

Protect would also like to congratulate Helen as well as thank her for speaking up to stop harm.

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Following the  Women and Equalities Committee report into sexual harassment in the workplace – which found the government, regulators and employers all failing to tackle the issue of sexual harassment in the workplace – Protect asks is the government taking enough action?

The government have pledged to bring in a Code of practice on sexual harassment for employers and look into options to better regulate NDAs, including introducing a standard clause explaining the limits of the agreement in plain English.

Also proposed is  extending the list of prescribed persons for whistleblowers to include the Equality and Human Rights Commission (EHRC).  This gives a new route for whistleblowers to raise concerns about sexual harassment with an organisation with some enforcement rights, and we support the extension.   The Government are also considering whether the Police should be included in the list – an interesting idea, but we’d argue that if the Police are to be prescribed, their remit shouldn’t be limited to concerns about sexual harassment alone.

However, despite the government’s claim that “the employment protections for whistleblowers can already cover disclosures of workplace sexual harassment”, we need to be clear that this is no simple remedy to the widespread problems identified by the #Metoo campaign.  When an individual suffers sexual harassment in the workplace, their usual remedy is through the internal grievance process.  To fall within the protection of the Public Interest Disclosure Act (PIDA), the individual raising a concern has to have a reasonable belief that the employer is breaching a legal obligation and that the disclosure is in the public interest.  It may seem self-evident that telling an external organisation – such as the EHRC – that sexual harassment has occurred should be a protected act – but it isn’t.  The law was changed to include the public interest test to stop individuals using PIDA to raise concerns about their own employment rights.  This may not be straightforward and will rest on the number of people effected, the seriousness of the harassment, who the harasser is and how seriously the individual is affected. While it is likely the test will have a broad application it is an additional hurdle for victims that does not exist in the Equality Act. If the test is not met,  a private grievance followed by an individual claim to the tribunal is still their only employment remedy.

But what of the new Code of Practice – surely that will make a difference?  Again, we welcome the proposal to introduce a statutory code, to give a strong steer to employers about what they should be doing to prevent sexual harassment in the workplace.  However, this should adequately consider how to support and encourage whistleblowers who speak up on behalf of victims. But without an enforcement mechanism, it remains with the individual to complain if the Code isn’t followed.  The government have proposed a wait-and-see approach to how tribunals respond to the Code – which isn’t likely to make bad employers tremble.  Even the threat of an uplift in a tribunal award for failure to prevent sexual harassment pales into insignificance when contrasted with the fines employers might face for breaching, say, GDPR requirements.  Sadly, the government haven’t agreed with the Committee’s recommendation of a mandatory duty on employers to prevent harassment –  a breach of which could lead to enforcement action by EHRC.   It is disappointing that the good practice in some sectors making whistleblowing arrangements mandatory  – such as in Financial Services – haven’t been followed here.

On the plus side we look forward to contributing to a number of the proposals that the government has accepted: the need for a wider public information campaign about legal rights, a review of the protection for volunteers and interns, and a consultation on the much misunderstood use of Non Disclosure Agreements .

 

 

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The Government has published legislation it describes as the ‘biggest package of workplace reforms for over 20 years’ – implementing 51 of the 53 recommendations of the Taylor review into UK modern economy workplaces.

Whilst welcomed – Protect see a missed opportunity for workplace reforms for whistleblowers.

The government review into working practices in the modern economy –  led by Matthew Taylor, chief executive of the Royal Society of the Arts, looked at seven key recommendations including how a worker was defined, and whether sick and holiday pay could be enforced.

The first positive Government announcement: “Extend the right to a day one written statement of rights to workers, going further to include detail on rights such as eligibility for sick leave and pay and details of other types of paid leave, such as maternity and paternity leave”.  We will be pushing the Government and Parliament to ensure that this statement also includes encouraging staff to raise whistleblowing concerns. This will help to alleviate low awareness among workers about their whistleblowing rights where 63% of UK workers either incorrectly stated there was no legal protection for whistleblowers or were unaware of the protection.

We also welcome the commitment to quadruple maximum employment tribunal fines for employers who are demonstrated to have shown malice, spite or gross oversight from £5,000 to £20,000.”  We would like this commitment to be extended so that Employment Tribunals are given the power to make recommendations to employers on how to improve their whistleblowing arrangements.  For example, where a case before them highlights a training need for managers, a weak whistleblowing policy or poor board governance. These could all be powerful additions to the tribunal’s menu of sanctions.

The Government have made a commitment to “legislate to improve the clarity of the employment status tests to reflect the reality of the modern working relationshipsbut there is no detail as to what Parliament will be asked to consider in this area. We welcome the intention to clarify this difficult area – there are already inconsistencies in how “worker” is defined for whistleblowing rights compared with other employment rights. The legislation is an opportunity to extend protection for many individuals including job applicants, students in many professions, volunteers, non-executive directors. (For a full list see our infographic).

Protect Head of Policy, Andrew Pepper-Parsons said, “These Government reforms represent modest reforms at best for whistleblowers because there are key issues missing from the proposals that need to redress the balance of power between employer and employee. This is an opportunity to improve important legislation, give a better framework for employers and raise awareness amongst workers of whistleblowing and their rights.”

Key missing reform issues:  

PIDA suffers from access to legal advice and representation is limited. These proposals do not address the issue that representation at tribunal can have a real effect on the outcome with many whistleblowers having to take their claim forward as a litigant in person.  Our research found 68 per cent of those lacking representation lost their case, while this falls to 53 per cent with representation.

PIDA is silent on standards expected from employers. These are inconsistencies in how regulators deal with whistleblowers and PIDA provides little in the way of legal guarantees. This includes both in terms of what a whistleblower should expect if they approach a regulator with concerns or guidance to organisations they regulate (except the Financial Conduct Authority who have created rules for banks).  We want to see real teeth in the proposals so that employers are placed under greater obligations to deliver better workplaces.

Legal threats to whistleblowers: There are a number of laws that make it an offence to disclose certain information (for example, Section 105 Utilities Act 2000). Such laws contain no public interest defence or gateway and will also mean that PIDA protection is not available. There is a worrying tendency for such laws to be used in the workplace as a means of suppressing concerns, pursuing or threatening whistleblowers. Such practices undermine the policy aims of PIDA to ensure concerns are raised by workers at the earliest opportunity. Legislative reform provides an opportunity to address this legal loophole.

No proposals to confront the misuse Non-disclosure agreements (NDA’s): It may well be that there are separate Government proposals in the pipeline on this issue, yet this is an obvious missing elephant. For whistleblowers 43J of PIDA makes it clear that a whistleblowing concerns cannot be gagged: the legislation allows individuals to raise public interest concerns outside the employment relationship where they would be protected under PIDA, but this is a little known or used section of the law. Yet due to low awareness around whistleblowing rights among UK workers this is often missed.  Alongside a reference to whistleblowing rights in the day one initial statement given to employees, we also propose clearer wording in law on this right, and a requirement on lawyers who are advising whistleblowers about settlement agreement to explaining this right more clearly.

The Taylor Review recommendations

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In June 1994, in small village in Northern Ireland, six Catholic men were shot dead at point blank range by loyalists, as they watched the World Cup in their local pub. The main shooter was accompanied by two others, and although within 24 hours the local residents had a strong indication of whom the murderers were, over twenty four years later British Security Forces have yet to charge anyone for the crime.

After years of being drip fed information, the families of those killed started to demand answers. Investigative journalists met with the families, people professionally involved in the case at the time and eye witnesses to search for the truth behind the failings.

“No Stone Unturned” a film by Alex Gibney, Barry McCaffrey and Trevor Birney explores the Loughinisland massacre and how it came to pass that such a tragedy was left unsolved for over 20 years.The film is the first published work to name the murderer suspects. Several newspapers have now followed. This incredibly brave step was taken with all due care: the journalists involved even warned the authorities several months in advance, so that protection may be offered to the named individuals. Why the authorities were not able to provide a transparent conclusion or logical methodology in the original case is not known. But by using information which was only a fraction of what was available to the state, journalists Barry McCaffrey and Trevor Birney demonstrated with conviction that the police had more than enough information to investigate and convict, they even had DNA evidence linking the main suspect to a balaclava worn at the scene of the crime.

The film – screened to a packed and passionate audience at the National Union of Journalists (NUJ) Headquarters earlier this month – highlighted several failings in the investigation. The lead investigator on the case was able to maintain his month long holiday plans the day after the murders took place. The getaway car, the largest piece of evidence relating to the case, was destroyed with very little explanation. Attempts to decipher the mysterious actions which had been taken were obfuscated and no clear answers were forth coming. Still, the families kept up their fight.

Eventually, in 2016, the Police Ombudsman produced a (secondary) report, which finally gave the families the truth they had been seeking for so long. The report found that there had been collusion between the police and the criminals. Unfortunately, it did not identify any individual officer as being at fault, and created no accountability for the failings.

The film highlighted the importance of two whistleblowers who leaked information to those in authority who they thought would know what to do with it. Unfortunately, it took the making of this film for the potential impact of the information they provided to be realised, and for the whistleblowers to know the risk they took was worth it in the end.

Shockingly, Barry McCaffrey and Trevor Birney are now being legally pursued for document theft, from the office of the Police Ombudsman, who denies having made a complaint of document theft. Perhaps Oscar-winning director Alex Gibney’s reaction reflects the majority of public opinion. In a tweet, he said the film had exposed the failure of police to properly investigate the massacre. “Police reaction? Re-open murder investigation? No. Arrest the truth tellers,” he wrote.

In a further twist, the original 2016 Police Ombudsman report was amended in March 2018 to further distance the main suspect, Ronald Hawthorne, from the wrong doing mentioned in the report.

Protect knows the value of open and honest journalism, even (and especially) when this reveals information which is embarrassing to the state.  We  commend the National Union of Journalists in their robust and compassionate support to these outstanding professionals and offer our support of Barry and Trevor, and will continue keeping a keen eye on any attempts to persecute them for their achievements. With deepest respect of, and support for, the families of those who were killed in Loughinisland.

By Laura Fatah, Adviser

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The start of a new year is a good time to address organisational change – and we at Protect are hoping to work with more and more organisations in 2019 to help improve trust and create a safer environment for whistleblowers.

5 common mistakes:

  • Thinking you’ve got it covered with a policy on your intranet
  • Lack of training for those receiving/handling concerns
  • Failing to give feedback to your staff
  • Poor communication and staff engagement
  • Senior management failing to endorse


We are offering a 20% discount on our 360 Benchmark tool throughout January
which focuses on three key areas – governance, operations and staff engagement – to assess whistleblowing or speak up arrangements.

“It can be hard for organisations to gauge whether their whistleblowing arrangements are effective – a policy on an intranet is not enough. The idea of the 360 benchmark is to help companies look at their culture and ask how much staff trust you when they raise concerns. It’s trying to move beyond ‘just the numbers of concerns’ and really transform cultures” explains Protect Development Director Jon Cunningham.

The 360 Benchmark was developed over 18 months by a team at Protect and a working group party made up of compliance and governance executives.  It measures how organisations engage with staff, how a company records and investigates employee concerns and evaluates written policy and accountability.  Upon completion, organisations receive a report identifying gaps in their procedures and how they have performed against similar organisations.

Since launching the 360 Benchmark tool in the summer, the Protect Business Support team has had extremely positive feedback from organisations who have completed it. Make 2019 the year of good governance for both your business and your staff.

If you are interested in discussing the 360 Benchmark 20% discount which will be available throughout January 2019, please contact the Business Support team

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An OFGEM whistleblower – Greg Pytel – has been told that he is unable to challenge the victimising behaviour of his employer in the Employment Tribunal after he raised public interest concerns about the implementation of smart meters.  He is now having to take his case to the Court of Appeal, at his own expense.

Current legislation makes it a criminal offence (sec 105 of the Utilities Act 2000) to disclose information about the utilities sector.  The offence is so widely drawn that it prevents a whistleblower from enforcing their legal rights, through the Public Interest Disclosure Act (PIDA), against victimisation or dismissal for raising concerns.

The Employment Tribunal originally found sec. 105 frustrated the ability for Pytel to get a fair tribunal hearing, and breached his right to freedom of expression. But the tribunal lacked the power to declare the sec. 105 officially ‘incompatible’ and read wording into the act, as the Human Rights Act allows, that would allow Pytel’s case to be heard.

The EAT stated that though it also lacked the power to declare the legislation officially ‘incompatible’, it pointed out that only the Government or Parliament could create an exception for whistleblowing under sec. 105.  It concluded that Pytel’s whistleblowing claim could not progress, even though on the facts stated at tribunal, the claim in absence of sec. 105 could have been heard.

Pytel will now have to take his case to the Court of Appeal who have the power to issue a formal declaration of ‘incompatible’ against sec. 105 and that his right to a fair hearing.

We at Protect have intervened in the case in support of Greg Pytel who is being prevented not only from bringing a claim but also from speaking openly about the concerns he has.  This case shows how secc. 105 has an incredibly wide reach and impact and we are calling on the Government to urgently amend the law to allow whistleblowers to both raise their public interest concerns, and enable them to enforce their legal rights.  It’s clear from the legal judgments that the courts are probably unable to make this change even when they declare the law incompatible with the ECHR.

Pytel said, “OFGEM now accepts that Section 105 prevents me from having a fair trial, contrary to my basic human rights, and – more importantly to the public – my concerns about the smart metering project can’t be examined. The Government themselves have nothing to say about this.

He added, “I am therefore left having to take the Government all the way to the Court of Appeal to appeal the judgment and get a formal declaration of incompatibility. I should not have to do so. This requirement puts a burden on me as an individual litigant to correct the government’s systemic problems at my own expense, systemic problems which should not have occurred in the first instance. It should be role of public authorities to avoid such systemic problems occurring, and to correct them voluntarily if and when they do.”

Protect Head of Policy, Andrew Pepper-Parsons said, “OFGEM’s admission that this aspect of the Utilities Act is unlawful, highlights the very real urgency for the Secretary of State to use his power to remove this legislation that unlawfully gags whistleblowers and denies them access to justice.

“Given that there are many statutes containing similar ‘gagging clauses’ – with criminal prosecution as punishment for breach – we at Protect will be calling on urgent action as soon as possible. ”

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