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Building Confidence in the Regulatory System – or not?

In the UK, certain regulators are recognised as ‘prescribed persons’ by the government, for example the Care Quality Commission and the Health and Safety Executive. Being a ‘prescribed person’ means that an organisation can be approached to receive and handle specific concerns, as listed online.

This matters for whistleblowers, as making a disclosure of information (i.e. blowing the whistle) to a prescribed person is an act which carries stronger legal protection than disclosing information to a body which is not ‘prescribed’.

The Prescribed Persons (Reports on Disclosures of Information) Regulations 2017, passed on 1 April 2017, imposed new rules: a duty on prescribed persons to publish annual reports on the whistleblowing disclosures they have received by 1 October each year.

Prescribed persons have a duty to report:

  • The number of disclosures received from whistleblowers
  • How many of these disclosures lead to a regulatory response/action
  • What action was taken, and the operational impact of this (e.g. if the information from the disclosure helped the prescribed person to perform it’s regulatory function)
  • A summary of the prescribed persons own functions and objectives

The Department for Business, Energy and Industrial Strategy (BEIS)

BEIS, who collate all the reports each January, have stated:

“The aim of this duty is to increase transparency … and to raise confidence among whistleblowers that their disclosures are taken seriously. Producing reports … will go some way to assure individuals who blow the whistle that action is taken in respect of their disclosures.”

However, BEIS also confirm:

“In collating these reports, BEIS has not assessed them for compliance with the duty. The legal obligation falls on the prescribed person to meet the annual reporting duty requirement.”

The Problem

The danger of introducing a duty and not even assessing compliance, far from enforcing it, is that this can bring the opposite of the desired effect – and reduce confidence in the regulatory system.

Our records show that almost three years on from the introduction of the regulations, almost a third of prescribed persons (32%) are not fully compliant with the reporting duty, and one in 20 have not published any of the information required by the duty. However, when prescribed persons do not comply with the duty to report, the government take no action for this breach of their duties; and it appears there are no plans to change this.

Without enforcement of the duty, how can confidence be built from the reports being published; how can a whistleblower be sure their concerns won’t be ignored, when over a third of all those prescribed don’t provide all the information that they are required to by law.

Protect are campaigning for a new law, which would enable whistleblowers to hold regulators to account if their concerns are ignored, or if their confidentiality is breached. Our new law would create a requirements for regulators to uphold set standards when it comes to handling and responding to whistleblowers. An oversight body, a Whistleblowing Commissioner, would be established, which would have powers to issue penalties if these standards are breached.

By Laura Fatah