The price of botheration

Observations on whistle-blowing

Imagine a world in which the government paid compensation when it wasted your time. Far-fetched and utopian, you might say, but for one small organisation it's about to happen. The Department of Trade and Industry was this month ordered to compensate the watchdog group Public Concern at Work for deliberately misleading it and, through it, the public at large. This unlikely outcome followed a report by the parliamentary ombudsman, Ann Abraham, into DTI regulations which, in the eyes of the group, encourage employers to bribe whistle-blowers who threaten to expose acts of lawlessness.

At the root of the case is an argument about how far employment tribunals are a matter of public record. Public Concern at Work, a charity invited by the government to monitor these matters, was concerned at the DTI's insistence that any whistle-blowing claims brought in these public tribunals, under the Public Interest Disclosure Act, had to remain confidential. Further, details of all such claims remain secret where the cases are settled before reaching the tribunal, as 70 per cent are.

The group challenged this in the courts in 2000, pointing out that, besides making a mockery of the whole business of whistle-blowing, it was a betrayal of public interest. A system that sets out to conceal dangers to society, it argues, can surely benefit no one, and with these rules in place it might be possible to keep another Harold Shipman or a multimillion-pound fraud such as Enron under wraps. The High Court agreed.

The DTI, however, did not give up. It decided to rescue its regulations by getting parliament to pass them as amendments to existing legislation. To shore up its case and avoid unwelcome scrutiny, it made its move at a quiet time, brushed off curious MPs and repeatedly misled Public Concern at Work, which was doing its best to contribute to a consultation process. The law, for example, required a meeting with the charity and this took place, with DTI officials giving every appearance of helpfulness. Only afterwards did it emerge that at a ministerial meeting at the department the previous day the details of the amendments had been set in stone, so the consultation was a sham. In due course, after the whips were called in, the regulations were approved by parliament, coming into effect on 17 August.

By now, however, the ombudsman was on the case and her verdict, published this month, was scathing. "Serious shortcomings on the part of the department served to deny the charity the opportunity to influence the process of changing regulations," she declared, in what Richard Shepherd, the MP who asked her to investigate, called the most critical ombudsman's report in 20 years. "It makes clear that officials and ministers at the DTI had no regard for the basic ethical rules that underpin our democratic constitution," he said.

To cap it all, the ombudsman, declaring that "the failure to keep the charity properly in the picture led them to incur unnecessary expense, time and trouble", ordered the DTI to apologise and to pay compensation to Public Concern at Work "for the expense and botheration they have been caused".

Guy Dehn, the group's director, is partly satisfied. "We hope the DTI will now make it clear that it will not tolerate the self-serving and third-rate conduct revealed in this report." Unless it does, he says, nobody can assume it will be straight with the courts or parliament, let alone the press or the public.

The DTI's secrecy regulations, however, remain in force, since the ombudsman had no powers to change that, but Dehn has a suggestion. The size of the compensation has not been agreed yet, but he is offering to forgo the lot - if the DTI agrees to put whistle-blowing claims on the public record.

Public Concern at Work's website is www.pcaw.co.uk