Whistleblowing: A Human Right under Threat?

1. Whistleblowing: A Human Right under Threat? Catherine Hobby University of East London IER Conference: Human Rights vs Bill of Rights: What’s in it for workers? London, 27th April 2016

2. Importance of Whistleblowing “Whistleblowers play an important role in exposing poor practice in firms and they have in the past few years contributed intelligence crucial to action against firms and individuals” Financial Conduct Authority (FCA) on its introduction of new rules on whistleblowing in October 2015

3. Whistleblowing as a human right • 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 statutory rights introduced by the Public Interest Disclosure Act 1998 (PIDA) can be enhanced by having regard to the human rights incorporated by the Human Rights Act 1998 (HRA 1998) and specifically the right to freedom of expression.

4. The Right to Freedom of Expression Article 10 of the ECHR: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...” (Article 10 - Paragraph 1)

5. Workers have a right to freedom of expression The European Court of Human Rights (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’

6. Right to Disclose “Hence Article 10 operates as a protection for whistle-blowers who act responsibly” Lady Hale (leading judgment) in Supreme Court case of Clyde & Co LLP v Bates van Winkelhof [2014] UKSC 32, relying on the European case of Heinisch v Germany where the right was found to extend to a nurse in a nursing home who reported her employers to the authorities because of concerns over understaffing.

7. Qualifications The right to freedom of expression is a qualified right and so can be interfered under Article 10(2) for express legitimate aims including: • ‘In the interests of national security’; • ‘For the protection of the reputation or rights of others’; and • ‘For preventing the disclosure of information received in confidence’.

8. Everyone has the right to respect for a private life A human right that conflicts with the right to freedom of expression is the right to respect for a private life (Article 8 of the ECHR) which is also a qualified right. Courts have interpreted this right to develop a tort of misuse of private information Thus an employer could seek to rely on this right to interfere with a worker’s right to blow the whistle

9. Reliance on ECtHR • Section 2 of the HRA 1998 requires the courts to “take into account” judgments of the ECtHR • Two relevant judgments of the ECtHR: Guja v Moldova (2008) Application 4277/04. Heinisch v Germany Application 28274/08, 21st July 2011.

10. Duty to have regard to human rights • Section 3 of the HRA 1998 places courts and tribunals under an interpretative duty to make all legislation, including employment provisions, compatible with human rights - “so far as it is possible”. • PIDA inserted rights into the Employment Rights Act 1996 (ERA 1996) to protect whistleblowers against unfair dismissal and victimisation. Part IV of the ERA 1996 should be read and given effect with regard to the right to freedom of expression

11. Reluctance to engage with human rights “The appeal to Article 10 .. does not assist. … It is well within the margin of appreciation to be accorded to a member state that it should enact careful and detailed provisions as the UK Parliament has done in enacting Part IV of the Employment Rights Act” Mr Justice Langstaff in Clay v Lewisham and Greenwich NHS Trust and Health Education England UK/EAT (Judgment 9th March 2016)

12. British Bill of Rights Repeal of the Human Rights Act 1998 “This will break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK”. Conservative Party Manifesto, 2015

13. Emphasis on Freedom of Expression? Source quoted in The Telegraph on 9th April 2016 “Ministers are “actively considering” a change in the law which will stop wealthy individuals – including famous public figures – using Labour’s Human Rights Act to stop newspapers publishing material that is in the public interest.”

14. A new human right to disclose in the public interest Will a British Bill of Rights safeguard the rights of whistleblowers by providing a right to disclose in the public interest? The 2014 Conservative Party document, Protecting Human Rights in the UK stated: “ We will not introduce new basic rights through this reform; our aim is restore common sense, and to tackle the misuse of the rights contained in the Convention.”

15. Conclusion “There is indeed a point to the Human Rights Act’ (Lady Hale, What’s the point of human rights?, Warwick Law Lecture delivered on 28th November 2013) The repeal of the HRA 1998 will deny whistleblowers access to the important right of freedom of expression that could be of benefit to them