28 November 2014

By Catherine Hobby, Senior Lecturer, School of law and social sciences, University of East London

Introduction

Article 10 of the European Convention on Human Rights (ECHR) provides workers with a right to freedom of expression and so has relevance for whistleblowers. The Conservative party pledge to repeal the Human Rights Act 1998 if elected in 2015, has generated considerable publicity focusing attention on the nature of human rights and their interpretation by the courts. Following its enactment McColgan was of the view that, although the Human Rights Act¹ 1998 (HRA 1998) did allow some scope to challenge employment restrictions on freedom of expression, this would be ‘limited’ by both the approach of the European Court of Human Rights (ECtHR) towards the exercise of employment rights and the provisions of the 1998 Act. This article examines the impact of the HRA 1998 upon the area of whistleblowing, with particular reference to the right to freedom of expression, and considers its ability to guarantee greater protection to whistleblowers given that the repeal of the Act will seriously undermine the development of new rights in the United Kingdom (UK).

Recent scandals in the NHS, financial services and the care of the elderly have again demonstrated the unique status and benefits of whistleblowing. Reports, such as that of the Francis Inquiry into high mortality rates and standards of care provided by the Mid-Staffordshire NHS Foundation Trust² and the Parliamentary Commission on Banking into the events leading to the rescue of HBOS by Lloyds TSB in 2008³, highlight the value of workplace knowledge and recognize the need to protect those workers who seek to raise concerns about illegality or wrongdoing. Despite this there is widespread acknowledgment that the Public Interest Disclosure Act 1998 (PIDA), enacted to protect public interest disclosures, is failing workers who blow the whistle on malpractice. Whistleblowing is clearly an activity that falls within a worker’s right to freedom of expression and so this right has the potential to provide assistance to workers disclosing information. It can be argued that the statutory rights in PIDA can be enhanced by having regard to the human rights incorporated by the HRA 1998 and specifically the right to freedom of expression.

In the 2010 General Election the Liberal Democrats made a commitment to the HRA 1998, but the Conservative party manifesto provided for the repeal of the 1998 Act and its replacement with a UK Bill of Rights. As part of its 2010 programme for government, in the section titled ‘Civil Liberties’, the Coalition Government expressed the view that:

‘the state has become too authoritarian, and that over the past decade it has abused and eroded fundamental freedoms and historic civil liberties’.⁴

It promised to establish a Commission to investigate the creation of a British Bill of Rights incorporating and building upon obligations under the European Convention on Human Rights (ECHR), ensuring these rights continue to be enshrined in British law and protecting and extending British liberties. Despite this, the language used in the document is that of ‘civil liberties’, ‘freedoms’ and ‘rights’ and there is no reference to ‘human rights’ other than in respect of the ECHR itself. This lack of recognition of the importance of human rights is now reflected in the hostility of the Conservative party towards the ECtHR and recent rhetoric expressed at the 2014 Conservative party conference. David Cameron promised to ‘scrap Labour’s Human Rights Act’ and the Lord Chancellor warned of the ‘mission creep’ of the jurisprudence of the Strasbourg court. The Conservative party have now published their arguments in a document that calls for a ‘British Bill of Rights and Responsibilities’ the interpretation of which will not required to take into account judgements of the ECtHR⁵. It is ironic that this commitment is given by persons whose office should require them to uphold human rights in the UK.

The Human Rights Act 1998

The HRA 1998 incorporated into domestic law a number of ‘Convention rights’ (certain articles of the ECHR), including the right to freedom of expression contained in Article 10, so that workers can now argue these rights in the domestic courts rather than going to the ECtHR. This is reflected in the titles of the Labour Party Consultation Paper on legislation, ‘Bringing Rights Home’ and the White Paper on the Bill ‘Rights Brought Home’⁶. The right to freedom of expression includes the right to both receive and impart information and so has important implications for workers who wish to raise public interest concerns. The right to freedom of expression is not absolute, but a qualified right. The right is set out in the first paragraph of Article 10 which also provides a second paragraph that allows the right to be interfered with ‘as prescribed by law’ and as ‘necessary’ for one of the express aims provided. These include the important qualifications of ‘the interests of national security’ and ‘preventing the disclosure of information received in confidence’. The word ‘necessary’ has been interpreted by the ECtHR as implying the existence of a pressing social need. Thus an interference with a whistleblower’s right to freedom of expression can be justified if it is under legislation such as the Official Secrets Act 1989 or the common law duty of confidentiality, provided it is necessary for a legitimate reason such as national security or the maintenance of confidence and it is proportionate. The ECtHR has held an interference with a right should be examined with regard to the facts of the case to determine whether the interference was ‘proportionate to the legitimate aim pursued’ and reasons advanced for justifying the interference are ‘relevant and sufficient’⁷. Essentially an employer must show that an interference with a worker’s right to freedom of expression was justified within the test established by the European case law.

Another significant qualification in Article 10 is ‘for the protection of the reputation or rights of others’. Thus an employer’s right to protection of its reputation can justify an interference with a worker’s right to freedom of expression in disclosing information relating to their employer. The ECtHR has recognised that all employees owe ‘a duty of loyalty, reserve and discretion’ to their employer, and that in situations of whistleblowing a court will weigh an employee’s right to freedom of expression to signal illegal conduct or wrongdoing on the part of the employer against the employer’s right to protect their reputation⁸. This right to protect reputation has been interpreted by the court to include commercial interests. Further the rights of the employer worthy of protection also include the right to respect for a private life, contained in Article 8 of the ECHR, which can also justify an interference with a worker’s right to freedom of expression. The assertion of the right to respect for a private life have been particularly important in cases where employers have sought to restrain former employees from disclosing confidential information. Employees are under an equitable duty of confidentiality and this provides an employer with an equitable remedy against a worker who seeks to disclose confidential information. It is well established that publication of confidential material can be restrained by injunction⁹. The jurisdiction arises from the duty of good faith or conscience¹⁰; no person is permitted to disclose to the world information received in confidence. The equitable principle allows person to seek an injunction without establishing any proprietary right or contractual relationship if the information has the required level of confidentiality. Such an injunction can restrain publication by both a worker and a third party to whom the disclosure is made. This duty of confidentiality has been developed into a tort of misuse of private information¹¹ with regard to the right to respect for a private life in a number of cases brought by celebrities who have successfully restrained former employees from selling information to the press. However, this right can be outweighed by the right to freedom of expression on the part of newspapers if there is a public interest in disclosure. In the case brought by the Prince of Wales against Associated Newspapers Ltd in respect of publication by the Mail on Sunday of extracts of the Prince’s diary sold to it by a former employee, the Court of Appeal made a distinction between ‘public interest’ and matters that are of interest to the public¹². If the right to freedom of expression is in conflict with the right to respect for a private life then the courts will carry out a balancing exercise to establish which right takes precedence. The courts have held that the courts must balance these two competing rights and neither trumps the other¹³.

The Right to Freedom of Expression and European Case Law

The ECtHR has made it clear that the right to freedom of expression is relevant and applicable in the workplace. In Steel and Morris v UK the European court held freedom of expression constitutes:

‘one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment’¹⁴.

Any worker victimised or dismissed for blowing the whistle could argue that an employment tribunal should decide their case with regard to their human right to freedom of expression and the right to disclose information in particular. Section 2 of the HRA 1998 requires a court or tribunal determining a question that has arisen with regard to a Convention right to ‘take into account’ decisions of the ECtHR. Although the ordinary meaning of the words to ‘take in to account’ can be argued to mean ‘to consider’ and not to follow, the House of Lords have ruled that if there is a ‘clear and consistent’ line of jurisprudence coming from the European court then it should generally be followed. Therefore any employment tribunal case could be decided with reference to relevant European case law concerning the right to freedom of expression. Although the ECtHR has heard few cases involving whistleblowing, the two judgments of the court in Guja v Moldova¹⁵ and Heinisch v Germany¹⁶ do provide some support for a development of the right to disclose as they do provide some consistent general principles.

Guja v Moldova

The case of Guja v Moldova concerned a civil servant who was the head of the press department of the Prosecutor General’s office in Moldova. He sent copies of two letters to a newspaper that resulted in an article alleging that the Deputy Speaker of Parliament attempted to influence the Prosecutor General in respect of the prosecution of four police officers, with the result criminal proceedings were discontinued. In finding a violation of the applicant’s right to freedom of expression, the European court reiterated that the right to freedom of expression applies to the workplace and so could be relied on by whistleblowers. The ECtHR were clearly of the view that the disclosure of illegal conduct or wrongdoing in the workplace by a civil servant or public sector employee should, in certain circumstances, enjoy protection. In determining the proportionality of an interference with a right to freedom of expression the court established a number of factors which the court must have regard to: whether the applicant had alternative channels for making the disclosure; the public interest involved in the disclosed information; the authenticity of the disclosed information; whether applicant acted in good faith; detriment to the employer and the severity of the sanction. It was found in Guja v Moldova that the applicant did not have any effective channel through which to make his disclosure as neither Moldovan legislation nor the internal regulations of the Prosecutor General’s office provided for employee reporting. The European court held that the information related to:

‘very important matters in a democratic society which the public has a legitimate interest in being informed about and which fall within the scope of political debate.’

Further the court decided that the letters disclosed were genuine, the public interest in the information outweighed the interest in maintaining public confidence in the Prosecutor General’s Office and the applicant was acting in good faith. With regard to the severity of the sanction, the ECtHR noted that the heaviest sanction possible was imposed and that dismissal is a ‘very harsh measure’ having negative repercussions for the applicant’s career. In doing so the court commented that this sanction would also have a ‘serious chilling effect’ on other employees at the Prosecutor’s Office discouraging them from reporting misconduct.

Heinisch v Germany

The criteria for establishing a breach of the right to freedom of expression in relation to whistleblowing in Guja v Moldova was then applied by the ECtHR in Heinisch v Germany. In this case the applicant, a geriatric nurse in a nursing home, together with colleagues repeatedly indicated to management that staff shortages were impacting on their ability to perform their duties and so caused serious shortcomings in the daily care of patients. The applicant complained that she was dismissed without notice on the ground that she lodged a criminal complaint against her employer in respect of these concerns, and this infringed her right to freedom of expression. The ECtHR observed that the parties agreed that the lodging of the criminal complaint was whistleblowing on the alleged unlawful conduct of the employer in the running of its nursing home and the resulting dismissal was an interference with the applicant’s right to freedom of expression. However the German Government argued that the interference was justified as her dismissal was a necessary and proportionate means to protect the reputation and rights of her employer. The ECtHR confirmed its approach taken in Guja v Moldova that workers, in certain circumstances, should enjoy protection in respect of the disclosure of illegality or wrongdoing in the workplace, particularly if the employee is the one person, or part of only a small group, aware of what is happening and so ‘best placed to act in the public interest’ by alerting the employer or the public¹⁷. In coming to its judgment the court noted that the information disclosed by the applicant was in the public interest and of ‘vital importance’ to prevent abuse, taking into account the particular vulnerability of the patients in the employer’s nursing home who are often unable to draw attention themselves to shortcomings in the provision of their care.

In applying the requirement of pursuing alternative channels for making the disclosure the ECtHR noted the applicant had raised her concerns on numerous occasions with her employer to no avail. It also made reference to the Parliamentary Assembly’s guiding principles on the protection of whistleblowers which stipulates that where internal channels cannot reasonably be expected to function properly then external whistleblowing should be protected. The court reiterated that a person who chooses to disclose information must carefully verify, as far as permitted by circumstances, its accuracy and reliability. This did not appear to be an onerous burden in this case as the court found that applicant’s allegations were not devoid of a factual background, and there was no evidence that she knowingly or frivolously reported incorrect information. The ECtHR also found the applicant was acting in good faith. Although she allowed herself a degree of exaggeration and generalisation, the applicant’s disclosures were held to be a description of the serious shortcomings in the functioning of the nursing home. Finally the court held that the public interest in receiving information about the care in the nursing home outweighed the rights of the employer and the dismissal of the applicant was ‘disproportionately severe’. In conclusion the European court held the interference with the applicant’s right to freedom of expression, in particular her right to impart information, was not necessary in a democratic society within Article 10. Accordingly it found a violation of her right to freedom of expression.

Although the cases of Guja v Moldova and Heinisch v Germany are supportive of whistleblowing being protected by the right to freedom of expression, there are limits within the judgments for the protection of British whistleblowers. One of the criteria established in the two cases for the finding of an interference with the right to freedom of expression is good faith on the part of the whistleblower and in Heinisch v Germany it was stated to be a ‘determinant factor’¹⁸. Good faith is no longer one of the obligations placed upon a whistleblower by PIDA. The Enterprise and Regulatory Reform Act 2013 (ERRA 2013) removes all references to the condition of ‘good faith’ in the relevant tests to establish a protected disclosure and transfers it to the sections concerning remedies. An employment tribunal can now, if it considers it ‘just and equitable’, reduce any compensation for victimisation or unfair dismissal by up to 25% if the protected disclosure ‘was not made in good faith’. The removal of the much criticized duty of good faith was called for by both academics and professionals and it is unfortunate that the ECtHR place such emphasis upon it. The focus should be on the value of the information disclosed and not the motive of the whistleblower. A whistleblower may have mixed motives in raising a concern, but the fundamental issue is whether a disclosure is in the public interest.

In Heinisch v Germany the ECtHR considered the need to strike a fair balance between the need to protect the employer’s reputation and rights on the one hand and the need to protect the right to freedom of expression of the whistleblower on the other. This demonstrates the limits of the case law as it places the right to freedom of expression on an equal footing with the right of the employer to protect their reputation. Also detriment to an employer is part of the criteria to consider in establishing whether there has been an interference with the right to freedom of expression, and commercial interests are included within the rights of an employer to be protected. Further it must be noted that neither Moldova nor Germany have laws that protect whistleblowers against detrimental treatment and this was a factor taken into account by the ECtHR as it denied the applicants a remedy against dismissal. This contrasts sharply with the UK that has deemed to have one of the most comprehensive and advanced whistleblowing legislation in Europe and one of the few countries to do so¹⁹.

A positive argument that could be made out of the European case law is in respect of mandatory whistleblowing policies. The ECtHR found in Heinisch v Germany that German law did not provide for a particular enforcement mechanism for investigating a whistleblowers’ concerns nor seeking corrective action from an employer. PIDA provides rights against unfair dismissal and victimisation for making a protected disclosure, but does not make the investigation of worker concerns or the implementation of whistleblowing policies mandatory. An argument that an organization did not provide mandatory whistleblowing policies to channel internal concerns could be a useful argument to a whistleblower who makes an external disclosure relying on the right to freedom of expression if it is considered in light of the relevant arguments in Heinisch v Germany.

The relevance of the Guja v Moldova and Heinisch v Germany is that with the incorporation of the right to freedom of expression by the HRA 1998 workers can ask a court or tribunal to take into account the principles decided by European case law in determining cases domestically in respect of this Convention right. The HRA 1998 offers procedures in which a worker can make an argument that their right to freedom of expression has been breached or rely on the Convention right as part of proceedings. The Act also creates a statutory requirement that all legislation must be read and given effect in a manner compatible with human rights whenever possible. These devices are considered below but if a worker pursues such mechanisms a court or tribunal must take into account the relevant European case law and this allows potential claims to be supported by principles established by the Strasbourg court.

Applicability of European case law

Despite the limitations of Article 10 and the European case law, Hyde and Savage believe the European jurisprudence provides ‘an additional layer of protection’²⁰ to whistleblowers in supplementing protective provisions offered by PIDA, discussed below. This is on the basis that section 6 of the HRA 1998 places all public authorities under a duty to act compatibly with Convention rights and if it fails to do so it will be acting unlawfully. This places public authorities under an obligation to undertake all their activities, including the employment of its workers, with regard to human rights. Although a definition of public authority is not provided by the HRA 1998 it extends to government ministers, the police, army and local authorities. A public sector whistleblower can therefore argue its employer should have regard to the right to freedom of expression in its treatment of workers. If it fails to do so the public authority will be acting unlawfully and its worker can either take proceedings against it in the appropriate court or tribunal or rely on the right to freedom of expression in any proceedings under section 7 of the HRA 1998. This allows a whistleblower to argue the right to freedom of expression in support of any claim for adverse treatment for blowing the whistle. However, not all judges recognise the relevance Convention rights in employment cases. This is shown by the disagreement between the Court of Appeal judges in the case of Mba v Mayor and Burgess of London Borough of Merton²¹. Although the case concerned the right to freedom of religion, and not freedom of expression, it demonstrates different judicial approaches towards the relevance of human rights in employment tribunal cases. Maurice Kay LJ was of the view that the right to freedom of religion was of no relevance on the facts of the case. Lord Justice Elias disagreed as the Respondent in the case was a Council and so under a duty to act compatibly with human rights as a pubic authority.

Private companies can be deemed to be public authorities for the purposes of the 1998 Act if their functions are of a ‘public nature’. This provision has been interpreted restrictively as demonstrated by the case of YL v Birmingham City Council²² in which a private company, Southern Cross, running a nursing home for the elderly, was held not to be a public authority for the purposes of the HRA 1998 and so not required to have regard to the protection of human rights. Despite legislative reform, such as that of section 145 of the Health and Social Care Act 2008, extending liability under the HRA 1998 to private companies providing care the liability of private companies in the provision of contracted-out services remains a problem. However, even if a company or organization is deemed to be a public authority for the purposes of the HRA 1998 it will only be so in respect of the provision of its services and not the employment of its workers for under section 6 that remains an act of a ‘private nature’. Thus a private sector employee will not be able to make a claim that their employer has acted unlawfully under section 7 of HRA 1998 by failing to comply with human rights. The Act does not allow human rights to be enforced directly against a private organization, but courts and tribunal have obligations under the HRA 1998 and this can assist all workers.

Under section 6(3)(a) of the HRA 1998 a court or tribunal is also deemed to be a public authority and so is required to compatibly with human rights. This allows an opportunity for the enforcement of horizontal rights between a private sector employer and its worker, as seen in the area of breach of confidence. This is important for, as stated above, private sector workers cannot take claims against their employer for acting unlawfully under section 7 of the HRA 1998 for non-compliance with the right to freedom of expression. A court or tribunal has a duty to ‘give effect’ to this human right in reaching their decision, if possible, and can develop the common law or equitable principles to make it compliant with the right to freedom of expression in doing so. Further, a private sector employee can also ask an employment tribunal to interpret relevant employment legislation with regard to this right, as discussed below. In cases involving private parties human rights can be therefore be relevant as a court can draw upon the right to freedom of expression in its application of the common law or equitable principles, exercise its judicial discretion with regard to the Convention right and also interpret relevant legislation compatibly. Also in deciding a case the tribunal will have to take into account the relevant decisions of the ECtHR and whistleblowers may benefit from the analysis adopted by the European court in the cases discussed above. It should be noted that the obligation is only to take into account and not to follow the jurisprudence of the ECtHR. The case law of the court is not binding on the domestic courts and tribunals and it may adopt a different approach. In Mba v Mayor and Burgess of the London Borough of Merton, Maurice Kay stated he reached his decision ‘without the need to venture into the Strasbourg jurisprudence’²³, although the other Court of Appeal judges considered human rights were relevant to the case.

The rights provided by the ECHR should be regarded as a ‘floor of right’ to be built upon and section 11 of the HRA 1998 provides that reliance on Convention rights does not restrict reliance on other legal rights as statutory rights. A human rights argument can thus be run at the same time as other arguments a claimant may wish to pursue. There is a reluctance of the part of some judges to consider human rights within the employment context and also an inconsistency in approach. Also human rights are not always argued, where applicable, in support of claims. In Mba v Mayor and Burgess of the London Borough of Merton, it was noted that the right to freedom of religion had not formed part of argument between the parties until a prompt came from the Bench. This is interesting as the right to freedom of religion was a significant factor in a number of recent employment cases.²⁴

The common law offence of misconduct in public office has been used to prosecute public sector whistleblowers in recent years. One example is the decision by Cumbrian police in early 2013 to prosecute workers who leaked to the press information about the excessive expenses of the recently elected Police and Crime Commissioner. The offence has been defined as wilful neglect or misconduct that amounts to an abuse of public trust ²⁵

Public Interest Disclosure Act 1998

In addition to its obligations considered in detail above, a court or tribunal is under an interpretative duty to make all legislation, including employment legislation such as PIDA, compatible with human rights where possible under section 3 of the HRA 1998. In Mba v Mayor and Burgess of the London Borough of Merton two of the Court Appeal judges noted the obligation to read the relevant employment regulations so as to be consistent with the relevant human right. Further, the House of Lords has held this allows judges to ‘read in’ words which change the meaning of legislative provisions to ensure it is compliant with the relevant Convention right. The court acknowledged that this allowed a court to ‘modify the meaning, and hence the effect, of primary and secondary legislation’²⁶. PIDA was enacted to provide protection to whistleblowers and amended the Employment Rights Act 1996 (ERA 1996) by inserting Part IVA. The ERA 1996 affords workers statutory rights against unfair dismissal and victimisation if they make specified protected disclosures. The duty of interpretation requires courts and tribunals to interpret the relevant provisions of the ERA 1996 compatibly with the right to freedom of expression, but the judicial duty is ‘only as far as is possible’. If the legislation cannot be made compatible then a declaration of incompatibility may be given by an appropriate court. An employment tribunal is not empowered to make a declaration as this can only be made by the higher courts of the High Court, Court of Appeal and Supreme Court. A declaration of incompatibility is not a remedy for an applicant as it has no impact on the individual case or on the validity or continuing operation of the relevant legislative provision. Such a declaration may have some value as a campaigning tool and for that reason has been called a ‘political’ remedy although this is of no interest to an individual worker victimized for blowing the whistle.

Although in existence for 16 years PIDA has been criticised for being excessively complex and inaccessible. This author is of the view that reform is needed, for if workers are not fully protected they will fear blowing the whistle and important allegations of malpractice, illegality, abuse and misdeeds will go undiscovered²⁷. In recognition of the need for reform two consultations in respect of the 1998 Act were undertaken in 2013. The first by the Whistleblowing Commission, established by Public Concern at Work, reported in November 2013 that the majority of respondents to it were of the view that PIDA ‘is not working as intended’²⁸. A second consultation was carried out by the Department for Business, Innovation and Skills²⁹ which reported in June 2014³⁰. The Consultation paper commented that the Government believes that the ‘overall framework works well’ and this was reflected in its final report that recommended legislative amendments of little substance³¹.

One criticism of PIDA is that the categories of information that qualify for protection under PIDA are insufficient and limited. The Act does not use the widely understood term of whistleblowing in the protective provisions, but relies on the term ‘disclosure’. The six specific categories of disclosure set out in section 43B of the ERA 1996 do not capture all potential areas of wrongdoing that may require public disclosure. If the relevant information does not fall within one of the express categories then the whistleblower will fall at the first hurdle in a claim under PIDA. The classifications form a definitive list which does not provide a final catch-all provision that might refer to any other matter of a public nature or interest. Information relating to financial irregularity and abuse and misuse of power are not expressly included³². The right to freedom of expression may assist with this gap in PIDA by interpreting section 43B in accordance with a right to disclose information relating to unprotected disclosures such as abuse of power to extend the protection afforded by PIDA. Also the ERRA 2013 introduced a ‘public interest’ duty into section 43B to further define those disclosures that qualify for protection. A worker now has to show that they have a reasonable belief that the disclosure of information ‘was made in the public interest’ and that it falls into one of the six existing categories of qualifying information. Whistleblowing is clearly in the public interest but demanding workers overcome a statutory definition of it results in a number of problems. Not least is that it will generate a lack of certainty as the test further exposes a claimant to the dangers of restrictive judicial interpretation that often fails to act in accordance with the spirit of PIDA 1998. The 2013 report of the Whistleblowing Commission is also concerned that the introduction of this additional requirement will lead to ‘uncertainty and unpredictability’³³
but hopes the Government, or the Employment Appeal Tribunal in an appropriate case, will give guidance as to the meaning of the test. Guidance would be useful, but this is not guaranteed as recent case law shows a judicial inconsistency with regard to the interpretation of whistleblowing rights.

Another area that could benefit from the courts interpreting PIDA with regard to the human right to disclose is in respect of the restrictive judicial distinction between allegations of information which are not protected by PIDA and disclosures that qualify for protection. This distinction was made in the case of Cavendish Munro Professional Risks Management Ltd v Geud³⁴. The Employment Appeals Tribunal that an allegation, such as that an employer is not complying with health and safety laws, is not a disclosure of information that will be protected under PIDA. This author is of the view that the raising of a concern could also fall outside the legislative protection if it is not framed as a disclosure of information³⁵. As argued by the Whistleblowing Commission such a distinction is ‘artificial and undermines the purpose of the law’ protecting whistleblowing³⁶. The Shipman Inquiry proposed the substitution of the word ‘report’ for the words ‘disclose’ and ‘disclosure’ as their definition is problematic in that the term disclosure conveys the presumption that the disclosed facts are true³⁷. Such a meaning could be read into PIDA if the relevant provisions were read with regard to the right to freedom of expression and a right to impart, or disclose, information.

Breach of Confidence

In pursuance of its obligation under section 6(3)(a) of HRA 1998 to act compatibly with human rights a court can develop the common law and equitable principles, in particular the tort of breach of confidence, with regard to the relevant human rights. Therefore a court or tribunal can make reference to and apply the right to freedom of expression in cases involving cases of breach of confidence when a worker blows the whistle. Many workers are bound by a contractual duty of confidentiality to keep the business of their employer secret, but even if the contract does not impose an express duty it can implied as a common law obligation as part of the wider duty of trust and confidence owed by a worker³⁸. Whistleblowers may be in breach of this obligation of confidence if they disclose information relating to the company or organisation employing them. As considered above, an obligation may also be imposed through the equitable principle of confidence providing an employer with an equitable remedy and the contractual duties of confidence can be seen as a reflection of the equitable principle. There is a public as well as private interest in the maintenance of confidence, and employers have utilised both the common law and equitable principles in restraining protection of confidential material. However, the public interest in the maintenance of confidence can be overridden if there is a countervailing public interest in the disclosure of information. As stated by Wood VC in Gartside v Outram³⁹ there ‘is no confidence to the disclosure of iniquity’. In the subsequent case of Initial Services v Puterill Lord Denning found that this ‘iniquity’ exception extended to

‘crimes, frauds and misdeeds, both those actually committed as well as those in contemplation, provided always – and this is essential – that the disclosure is justified in the public interest’⁴⁰

This long established public interest defence to the breach of confidence allows certain disclosures to be justified or excused. Breach of confidence is of limited impact in the areas of whistleblowing as most workers will bring a claim under PIDA rather than rely on a public interest defence in respect of employer action for breach of confidence. However, the defence may be applicable to workers who do not fall within the definition of a worker under PIDA and so are denied its protection. Whether a duty of confidentiality will be upheld against a whistleblower excluded from the protection of the 1998 Act will depend on all the circumstances and this affords great flexibility to the courts. The essence of the defence is whether it is in the public interest for the worker to reveal the confidential material and this will involve a balancing exercise, setting the employer’s interest in maintaining confidentiality against the public interest in disclosure. In resolving these conflicting principles a whistleblower can ask the court to have regard to the right to freedom of expression, but it will also have take into account the conflicting rights of the employer to maintain confidence. In resolving the two conflicting rights the court can take into account the European case law and this could support arguments in favour of the whistleblower as both the cases of Guja v Moldova and Heinisch v Germany ruled in favour of the right to disclose over the rights of the employer.

Official Secrets Act 1989

The criminalisation of disclosures within the Official Secrets Act 1989 (OSA 1989) is ‘problematic’⁴¹ with reference to the right to freedom of expression. As recognised by Lord Phillips CJ in the case of R v Keogh the provisions of the OSA 1989 are ‘both lengthy and complex’⁴², but human rights could be a means to challenge the restrictive Act. The 1989 Act imposes criminal sanctions for the disclosure of six categories of information including: security and intelligence; defence; and international relations. As a consequence of the acquittal of Clive Ponting, tried for the disclosure of information to the MP Tam Dayell relating to the sinking of the Belgrano during the Falklands War, the public interest defence provided by the Official Secrets Act 1911 was repealed. The civil service does fall within the protective provisions of PIDA, but only if a civil servant does not commit an offence under the OSA 1989 by making a disclosure. Disclosure of information is an offence under section 2 of the OSA 1989 if it is ‘damaging’ and ‘made without lawful authority’. Employees at GCHQ as well as members of the intelligence and security services are excluded from the protective provisions of PIDA and strict liability is imposed on these workers by making it an offence to disclose information irrespective of impact or motive under section 1 of the 1989 Act.

To date the HRA 1998 has been of limited value in the area of disclosure of official information despite reliance on it by applicants. Although, as stated above, all legislation including the OSA 1989 should be interpreted with regard to the right to freedom of expression as well as the other human rights such as the right to liberty and the right to a fair trial and hearing, a restrictive approach has been adopted by the courts. This is demonstrated by the case of David Shayler, a former member of the security service, MI5, who made allegations as to illegality and inefficiency on the part of MI5 in the New York Times which were then published by the British press. Shayler was prosecuted in 2000 under section 1 of the OSA 1989 for disclosing information without lawful authority. By virtue of this section Shayler, as a former member of MI5, was under a lifetime duty of confidentiality and, at his trial and appeal Shayler unsuccessfully sought to rely on his human rights to challenge the absolute ban on disclosures in section 1. In a pre-trial hearing in 2001 he argued the denial of a public interest defence by the 1989 Act was incompatible with a right to freedom of expression. The House of Lords found the relevant provisions did restrict his right to freedom of expression, but this was justified as there was a need to preserve secrecy of information in the interests of national security. The court interpreted the relevant human right narrowly and refused to engage with any possible common law defences of necessity or duress of circumstance in respect of the disclosure.

The ECtHR in Guja v Moldova supported a view that civil servants should be allowed to disclose official information if disclosure is justified in the public interest. This could have relevance for a civil servant asserting freedom of information in proceedings relating to the disclosure of information. With reference to Civil Law Convention on Corruption, the European court noted in the course of their work, civil servants may be aware of information, including secret information, the divulgence of which may be in the public interest⁴³. Those in Government may on occasion be in error or guilty of incompetence, misconduct, malpractice and even misdeeds. Such wrongdoing should be made public for, as recognised by Lord Bingham in R v Shayler ‘publicity is a powerful disinfectant’⁴⁴.

In R v Shayler Lord Bingham stressed the importance of a ‘bright line’ in relation to security and intelligence disclosure so that the legal principles are clear to all⁴⁵. At present the bright line appears to restrict the argument of human rights in support of the revelation of official material. The disclosures of Edward Snowden in 2013 highlighted the importance of the disclosure of official information in certain circumstances and focussed attention on newspapers as the recipients of disclosed information. Although an American whistleblower whose revelations principally concern the activities of the US National Security Agency (NSA) in undertaking widespread surveillance programmes, Snowden’s allegations have also raised issues about the role of GCHQ in assisting the NSA. Despite the disclosures raising serious public interest concerns about the invasion of privacy by mass surveillance programmes seeking intelligence, the reporting of Snowden’s claims by the Guardian newspaper has been condemned by some as assisting terrorists. Indeed in August 2013 anti-terror laws were used by police officers to detain and question David Miranda, the partner of the Guardian journalist Glenn Greenwald at Heathrow airport for almost nine hours. His laptop and memory stick were also seized as part of his detention and questioning under Schedule 7 to the Terrorism Act 2000. A person may be questioned under this provision to determine whether he is a terrorist or has been ‘concerned in the commission, preparation or instigation of acts of terrorism’. It is clear that Miranda is not a terrorist or involved in terrorist activities and so there is a good argument that his detention was unlawful and an infringement of his human rights. Relevant human rights include the right to freedom of expression as well as the Convention right to liberty and the right to respect for a private life. Earlier in 2013 the ECtHR accepted as admissible a claim challenging the compatibility of Schedule 7 with these human rights in the case of Malik v UK⁴⁶. Following his detention Miranda commenced proceedings seeking judicial review of his questioning and detention under Schedule 7 of the Terrorism Act 2000 arguing the use of the power under Schedule 7 was incompatible with his right to freedom of expression. The High Court gave its judgment in February 2014 and the three judges rejected Miranda’s arguments. In giving the lead judgment Lord Justice Laws concluded that Schedule 7 “does not offend Article 10”⁴⁷.

Conclusion

It has been argued that the employment protections afforded by the right to freedom of expression are ‘slim’⁴⁸ but little attention has been given to the right in the advancement of a right to disclose for whistleblowers. The focus in the protection of whistleblowers appears to be on the statutory rights provided by PIDA rather than human rights incorporated into domestic law by the HRA 1998⁴⁹. The reports of the Whistleblowing Commission and BIS make no reference to the human right in its recommendations as a means to develop the rights of whistleblowers. This mirrors a limited acceptance of the benefits of the HRA 1998 in the area of employment generally with the exception of some argument advanced with regard to the right to freedom of religion and a fair hearing. It is 16 years since the HRA 1998 was enacted, but there is not an increased acceptance and awareness of the value of human rights. There has always been hostility amongst certain newspapers and politicians who seek to blame the Act for unpopular decisions on prisoners’ right to vote and deportation. A lack of support was even shown by members of the Commission on Human Rights, established by the Coalition Government to examine the question of whether there should be a UK Bill of Rights. The Commission reported in December 2012 and a majority favoured the creation of a UK Bill of Rights although most of those who responded to the consultation favoured the retention of the HRA 1998. In general there is a lack of understanding of the provisions of the HRA and the nature of the rights it incorporates into domestic law.

Before the HRA 1998 the human rights afforded by the ECHR were simply part of international law and the domestic courts had no obligation to determine cases with regard to them. If workers wished to rely on the right to freedom of expression they had to take a case against the UK to the ECtHR after exhausting all domestic remedies. At present there is a legal system that allows human rights arguments to be made and considered in national courts and tribunals. As examined in this article there are ‘a number of logistical and conceptual difficulties’
⁵⁰
with the HRA 1998 that prevent workers form fully benefitting from the right to freedom of expression. Significant restrictions to the full application of the right are the reserved approach towards human rights by the judiciary in the employment area and also the apparent reluctance of practitioners to make human rights arguments. However a repeal of the 1998 Act will return the legal position to that before 1998 when whistleblowers had no right to freedom of expression to advance and there will be no possibility of any improvement in the rights afforded to whistleblowers. As argued by Lady Hale ‘there is indeed a point to the Human Rights Act’⁵¹ and its repeal will deny whistleblowers access to the important right of freedom of expression that could be of benefit to them. The Conservative Party proposals are ill-conceived as well as damaging to employment rights.

^{1. [McColgan, A, ‘Article 10 and the right to freedom of expression: workers ungagged?’ in Ewing, K D, (ed) Human Rights at Work, 2000, Institute of Employment Rights, p 73.]↩}

^{2. [Report of the Mid-Staffordshire NHS Foundation Trust Public Inquiry, 2013, Volume 1 HC 898-1.]↩}

^{3. [Parliamentary Commission on Banking Standards, An accident waiting to happen: The failure of HBOS, Volume I, Fourth Report of Session 2012-13, 2013, HL Paper 144.]↩}

^{4. [Coalition Government, The Coalition: our programme for government, Cabinet Office, May 2010, p 11.]↩}

^{5. [The Conservative Party, Protecting Human Rights in the UK: the Conservatives’’ Proposals for Changing Britain’s Human Rights Laws, 2014. ]↩}

^{6. [Straw and Boateng, Bringing Rights Home: Labour’s Plans to Incorporate the ECHR into UK law: A consultation Paper, 1997 and White Paper, Rights Brought Home: The Human Rights Bill, 1997, Cm 3782.]↩}

^{7. [Steel and Morris v the United Kingdom, no 6841/01, ECHR 2005-II, paragraph 87.]↩}

^{8. [See Heinisch v Germany, Application 28274/08, 21st July 2011,at paragraph 64.]↩}

^{9. [See Argyll v Argyll [1965] 1 All ER 611; AG v Guardian Newspapers [1987] 3 All ER 316.]↩}

^{10. [See Vestergaard Frandsen v Bestnet Europe [2013] UKSC 31.]↩}

^{11. [See Campbell v MGN [2004] UKHL 22; [2004] 2 AC 457 and McKennitt v Ash [2006] EWCA Civ 1714; [2007] 3 WLR 194.]↩}

^{12. [HRH Prince of Wales v Associated Newspapers Ltd [2006] EWCA Civ 1776; [2007] 2 All ER 139 (CA).]↩}

^{13. [See Campbell v MGN [2004] UKHL 22; [2004] 2 AC 457.]↩}

^{14. [ [2005] ECHR 68416/01 at paragraph 87.]↩}

^{15. [ [2008] ECHR 14277/04.]↩}

^{16. [ Application 28274/08, 21st July 2011.]↩}

^{17. [ Ibid, at paragraph 63.]↩}

^{18. [ Ibid, at paragraph 69.]↩}

^{19. [ Transparency International, Whistleblowing in Europe: Legal Protection for Whisteblowers in the EU, 2013, p 6.]↩}

^{20. [ Hyde, R and Savage, A, ‘Cross-border Concerns: Perils and Possibilities’, Vol 2(3), 2013, E-Journal of International and Comparative LABOUR STUDIES, @ ADAPT University Press, p 122.]↩}

^{21. [ [2013] EWCA Civ 1562.]↩}

^{22. [ [2007] UKHL 27. See Palmer, S, ‘Public, Private and the Human Rights Act 1998: An Ideological Divide’, 2007, Cambridge Law Journal 559.]↩}

^{23. [ [2013] EWCA Civ 1562, at paragraph 20.]↩}

^{24. [ See Ladele v London Borough of Islington [2009] EWCA Civ 1357; McFarlane v Relate Avon [2010] EWCA Civ 771; and Eweida v UK [2013] IRLR 231.]25. [ See James, C, Responsibility in Public Office?, 25th April 2013, Inform’s Blog, at www.wordpress.com, accessed on 25/4/2013.]↩}

^{26. [ Ghaidan v Godin-Mendoza [2004] 2 AC 557, Lord Nicholls at paragraph 32.]↩}

^{27. [ See An IER Response, The Whistleblowing Framework: Call for Evidence, Submission to the Department for Business, Innovation and Skills, by Hobby, C , 2013, Liverpool: The Institute of Employment Rights, p 16-17.]↩}

^{28. [ The Whistleblowing Commission: Report on the effectiveness of existing arrangements for workplace whistleblowing in the UK, 2013, Public Concern at Work.]29. [ See Department for Business, Innovation & Skills, The Whistleblowing Framework: Call for Evidence, 2013, p 7]30. [ See Department for Business, Innovation & Skills, The Whistleblowing Framework: Call for Evidence, Government Response, 2014.]31. [ For example the duty to report imposed upon prescribed persons being introduced in the Small Business, Enterprise and Employment Bill 2014.]↩}

^{32. [ See An IER Response, The Whistleblowing Commission: Strengthening Law and Policy, Submission to Pubic Concern at Work’s Whistleblowing Commission, by Hobby, C , 2013, Liverpool: The Institute of Employment Rights, paragraph 4.1-4.2 and The Whistleblowing Commission: Report on the effectiveness of existing arrangements for workplace whistleblowing in the UK, at note 28 above.]↩}

^{33. [ See note 28 above, paragraph 79.]↩}

^{34. [ [2010] UKEAT/0195/09; [2010] ICR 325; [2010] IRLR 38. ]35. [ See Hobby, C, Public interest whistleblowing: 12 years of the Public interest Disclosure Act 1998, 2010, Liverpool: The Institute of Employment Rights, p 30.]↩}

^{36. [ See note 28 above, paragraph 112.]↩}

^{37. [ See Fifth Report of the Shipman Inquiry, Safeguarding Patients: Lessons from the Past – Proposals for the Future, 2004]↩}

^{38. [ See Hobby, C, Whistleblowing and the Public interest Disclosure Act 1998, 2001, London: The Institute of Employment Rights, pp 5-8.]39. [ [1856] 26 LJ 113, pp 114 and 116.]40. [ [1967]3 All ER 145, p 148.]41. [ See note 1 above, p 73.]↩}

^{42. [ [2007]EWCA Crim 528; [2007] 3 All ER 789, at paragraph 33.]↩}

^{43. [ [2008]ECHR 14227/04, at paragraph 72.]↩}

^{44. [ [2002] UKHL 11, at paragraph 21.]45. [ Wagner, A official secrets and the powerful disinfectant, 19th September 2011, UK Human Rights Blog at www.ukhumanrightsblog.com]↩}

^{46. [ Mailk v UK, application 32968/11, 28th May 2013.]↩}

^{47. [ Miranda v Secretary of State for the Home Department [2014] EWHC 255 (Admin), at paragraph 88.]↩}

^{48. [ See note 1 above, p 70.]49. [ See Commission on Human Rights, A UK Bill of Rights? The Choice Before Us, Report of the Commission on Human Rights, 2012.]50. [ Wadham, J, Mountfield, H, Prochhaska, E & Brown, C, Blackstone’s Guide to the Human Rights Act 1998, 2011, 6th edition, Oxford: Oxford University Press, p 102]51. [ Lady Hale, What’s the point of human rights?, Warwick Law Lecture delivered on 28th November 2013.]}

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