Governance and guidance as alternatives to law change: solutions from a comparison of UK prescribed persons’ approaches to whistleblowing with contemporary international practice

This thesis aims to evaluate whether the organisations prescribed in UK law to receive qualifying disclosures from whistleblowers appear to understand the relevant law and apply it accurately, and in turn, whether UK law reflects contemporary international practice, including Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law. These aims are encapsulated in two research questions: (i) Do UK prescribed persons meet the requirements of the whistleblowing framework, including government guidance? and (ii) where not, how can identified incompatibility be addressed, where possible without recourse to law change and having regard to contemporary international practice? Thereafter, the thesis posits practical solutions to deficits identified by the research.

Freedom of Information Act 2000 (FOIA 2000) responses from UK prescribed persons (with comparable functions to the material scope of the Directive) assisted evaluation of the UK’s de jure alignment with the Directive, and de facto application of prescribed persons’ policies, procedures and processes when compared both with UK law and the Directive. Corroboration and contradiction of the FOIA 2000 responses were sought through examination of the prescribed persons’ whistleblower policies, procedures and processes, where available. Given that prescribed persons are expected by law to publish annual reports about whistleblowing reports received, analysis was undertaken of such reports, where identified. Further comparison was made between the UK’s de jure and de facto situations with comparable legislation in Australia, Canada, Ireland, New Zealand, and South Africa. Following this analysis, the research distilled practical guidance from international comparators to assist prescribed persons in addressing the inconsistent approaches that were identified. Finally, the lack of oversight, particularly of local authority prescribed persons’ approaches, suggested a role for local government ombudsmen augmented by private sector audit capability.