Whistleblowers, the Public Interest, and the Public Interest Disclosure Act 1998

AuthorJames Gobert,Maurice Punch
Publication Date01 Jan 2000
Whistleblowers, the Public Interest, and the Public
Interest Disclosure Act 1998
James Gobert* and Maurice Punch**
Corporate crime and organisational deviance raise complex legal issues. An
initial problem lies simply in identifying when such wrongdoing has occurred.
Here, whistleblowers can perform a valuable service. However, publicized cases
suggest that they often pay dearly for their candour, encountering unfair
sanctions at work. In Britain, the Public Interest Disclosure Act 1998 seeks to
protect ‘ ‘good-f aith’’ whistleblowers from employer reprisals. In the wake of this
legislation, the authors examine whistleblowing from a socio-legal perspective,
asking what motivates whistleblowers, how do institutions respond to them, can
legislation adequately protect them, and what effects will PIDA have on
whistleblowing, employment practices, the culture of the workplace and,
ultimately, society.
We live in a society where organisations play a pivotal role in determining the
quality of our lives. It is therefore crucial that such organisations be responsible
and accountable. Yet the legal, sociological and criminological literature is filled
with examples of wide-spread malpractice and systemic rule-breaking within
organisations.1Public inquiries have revealed improprieties, and, in some cases,
illegalities, in business and government.2Investigative journalists, drawing from a
range of sources, have documented that children in care are abused, that patients in
nursing homes are mistreated, that ferry boats are operated in an unsafe manner,
that banks take unfair advantage of their customers, that hospitals cover up for
incompetent doctors, that police on occasion ‘stitch up’ innocent suspects, that
civil servants mislead government ministers, and that government ministers do not
fully inform Parliament on matters about which MPs are entitled to know. At the
same time that organisations bend and break the rules (including rules of law),
ßThe Modern Law Review Limited 2000 (MLR 63:1, January). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 25
* School of Law, University of Essex.
** Manheim Centre for Criminology and Criminal Justice, London School of Economics and Political Science.
The authors would like to thank Steve Anderman, Frank Anechiarico, Carolyn Hamilton, Derek Phillips,
Robert Reiner, Paul Rock, and Bob Watt for their helpful comments on previous drafts of this article. We
also appreciate the constructive suggestions of the editor and the anonymous reviewers.
1 See generally E. Sutherland, White Collar Crime: The Uncut Version (New Haven: Yale University
Press, 1983); D. Friedrichs, Trusted Criminals (Belmont, CA: Wadsworth, 1996); M. Punch, Dirty
Business: Exploring Corporate Misconduct (London: Sage, 1996); M. Clinard and P. Yeager,
Corporate Crime (New York: Free Press, 1980); M. Clarke, Business Crime (Cambridge: Polity Press,
1990); J. Braithwaite, Corporate Crime in the Pharmaceutical Industry (London: Routledge, 1984);
M. Levi, Regulating Fraud (London/New York: Tavistock, 1987); F. Pearce and L. Snider (eds),
Corporate Crime (Toronto: University of Toronto Press, 1995); M. Tonry and A.J. Reiss Jr (eds),
Beyond the Law: Crime in Complex Organisations (Chicago: Chicago University Press, 1993); C.
Wells, Corporations and Criminal Responsibility (Oxford: Clarendon Press, 1993). It might be
observed that while there is a tendency in the literature to speak of organisational deviance,
comparatively little attention is paid to non-profit, non-governmental, voluntary, educational and
religious organisations; the focus instead tends to be on business and government organisations.
2 See eg Committee on Standards in Public Life, Report Cm 2850 (1995)(Nolan report); Report of the
Court No 8074, mv Herald of Free Enterprise (1987)(Sheen report); Investigation into the Clapham
Junction Railway Accident Cm 820 (1989)(Hidden report); Public Inquiry into the Piper Alpha
Disaster Cm 1310 (1990)(Cullen Report).
those within the organisation who are aware of the misconduct tend to maintain a
discreet silence. The focal point of this article is on the few who decline to remain
silent – persons commonly known as whistleblowers.
Whistleblowing as a mechanism for achieving accountability in public and
private organisations has received considerable attention of late, stimulated in
Britain by the enactment of the Public Interest Disclosure Act 1998 (PIDA). The
Act constitutes an attempt to provide legal protection to good faith whistleblowers.
But it also can be viewed as part of a larger movement to make institutions more
transparent and accountable. Fuelled by the Act, there are an increasing number of
magazine and newspaper columns that feature reports of whistleblowers.3
Presumably most of us would applaud these initiatives, and in particular the
protection of whistleblowers. Business and government organisations tend to be
characterised as defensive, secretive and self-serving bureaucracies, while
whistleblowers are seen as courageous, public-spirited citizens. But the deeper
one searches for the truth behind the stereotypes, the more complicated the picture
that emerges. It is difficult to reach definitive conclusions, however, as
whistleblowing not uncommonly involves a contest of credibility between an
organisation and an individual, with each disputing the other’s veracity and
perceptions of the problem. Research is meagre and largely anecdotal. Rarely does
the public learn of cases of whistleblowing that have not attracted media attention.
The academic literature is comprised mostly of empirical case-studies of individual
whistleblowers, with the occasional survey, and is predominantly North American
in origin.
Whistleblowing as an explicit concept meriting serious study was pioneered in
public administration in the United States after the Vietnam War. Daniel Ellsberg’s
leaking of the ‘Pentagon Papers’, and the Watergate scandal, where ‘Deep Throat’
primed Bernstein and Woodward with inside information on wrongdoing within
the Nixon White House, provided the impetus. Major legislative milestones
included the Report to the US Senate of Senator P.J. Leahy in 1978 on federal
employees who disclose information on governmental ‘waste, abuse and
corruption’; the Civil Service Reform Act 1978, which first attempted to protect
whistleblowers against victimisation; and the Federal Whistleblower Protection
Act 1989, which strengthened the 1978 legislation. These Acts gave rise to many
state and local whistleblowing laws.4Recently there has also been a spate of
legislation in other countries, including Israel and Australia.5A number of major
companies, among them Mobil and ATT, claim that they encourage
whistleblowing;6other corporations, such as Johnson and Johnson, have received
favourable publicity by taking a public stand asserting that mistakes should not be
covered up and that employees should report malpractice.7
In Britain, Parliament, by enacting PIDA, has now climbed aboard the
bandwagon. In the wake of this recent legislation, we propose to examine the
3 See for example the column that now appears in The Times Higher Education Supplement.
4 See generally F. Anechiarico and J. B. Jacobs, In Pursuit of Absolute Integrity (Chicago: University of
Chicago Press, 1996).
5 See eg the Queensland ‘Whistle Blower Protection Act’ of 1994 in Australia discussed in H. Whitton,
‘Legislating for Ethics: Responses to the Public Sector Ethics Act in the Queensland Public Sector,
1994–98’, Paper for Sixth International Conference on Ethics in the Public Service, Amsterdam, June
6 See D. Clutterbuck, ‘Blowing the Whistle on Corporate Misconduct’ in A. Elkins and D. Callaghan
(eds), A Managerial Odyssey (Reading, MA: Addison-Wesley, 3rd ed, 1981); D. Lewis,
‘Whistleblowers and Job Security’ (1995) 58 MLR 208, 210–214.
7Business Week, 26 September 1988: ‘At Johnson and Johnson a mistake can be a badge of honor’.
The Modern Law Review [Vol. 63
26 ßThe Modern Law Review Limited 2000

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