Corruption prevention in the midst of a crisis

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9 December 2010
©PCaW 2010 - 00 44 20 7404 6609
©PCaW 2010 - 00 44 20 7404 6609
PCaW is an independent charity, founded in 1993. We
provide:
free confidential advice to people concerned about
wrongdoing in the workplace who are unsure whether or
how to raise their concern
train organisations on policy and law of whistleblowing
campaign on public policy, and
promote public interest whistleblowing laws.
©PCaW 2010 - 00 44 20 7404 6609
Helpline - statistics
Over 18,000 calls to date - a third are from the health and
care sector
35% are public, 44% private and the remainder voluntary
sector or unknown
Source: Where’s whistleblowing now? PCaW 2010
©PCaW 2010 - 00 44 20 7404 6609
Helpline - statistics
Breakdown of types of wrongdoing
Source: Where’s whistleblowing now? PCaW 2010
©PCaW 2010 - 00 44 20 7404 6609
Raise
internally?
Keep quiet?
Go Outside?
A concern
about
malpractice
©PCaW 2010 - 00 44 20 7404 6609
Should the law treat whistleblowing as a workplace issue?
If so, should there be a common approach for public and
private sectors?
How do you separate public concerns from private
complaints?
What safeguards against abuse are necessary?
©PCaW 2010 - 00 44 20 7404 6609
CoE Convention requires protection of
‘employees’,UNCAC suggests States consider extending
protection to ‘any person’.
Employees will usually be first to know and have most to
lose. They also work under obligations of confidentiality.
©PCaW 2010 - 00 44 20 7404 6609
Corruption is classically an illegal bargain made between
someone in the private sector with someone in the public
sector.
CoE Convention covers both sectors; public interest
disclosure laws often cover both sectors in the same way
in the same piece of legislation; and USA covers private
and public sectors but in separate schemes.
©PCaW 2010 - 00 44 20 7404 6609
Should we encourage people to raise a concern
openly,
confidentially (so, if requested, the person’s identity is not
freely disclosed), or
anonymously (the person does not identify himself)?
©PCaW 2010 - 00 44 20 7404 6609
Should the law encourage people to raise a concern…
with the alleged wrongdoer?
with the organisation involved?
with the regulatory authorities?
more widely – to politicians, NGOs, the media?
©PCaW 2010 - 00 44 20 7404 6609
Should it be a duty to blow the whistle?
If not, should good faith be a requirement?
Who should best promote the law?
Should the protection be under criminal or civil law?
Should there be an obligation to investigate?
©PCaW 2010 - 00 44 20 7404 6609
©PCaW 2010 - 00 44 20 7404 6609
Promotes and protects open whistleblowing
Tiered disclosure regime, which emphasises
internal whistleblowing, regulatory oversight
and recognises wider accountability
Signals a change in the culture
International benchmark
©PCaW 2010 - 00 44 20 7404 6609
Valid cause
to go wider
Genuine
suspicion
Internal
disclosure
The actual
disclosure is
reasonable
Substance
to the
concern
Regulatory
disclosure
Public
disclosure
Lord Nolan’s praise for ‘so skilfully achieving the essential but delicate balance between the
public interest and the interest of the employers’.
©PCaW 2010 - 00 44 20 7404 6609
Applies to almost every worker
Wide definition of wrongdoing
Application overseas
Burden of proof reversal
Full compensation
Impacts on gagging clauses and secrecy offences
©PCaW 2010 - 00 44 20 7404 6609
Over 9,000 tribunal claims to date
The number of claims has increased from 157 in
1999/2000 to 1,700 in 2008/9
70% of PIDA claims settle
Of the remainder 78% were lost and 22% were won
Highest tribunal award is £5 million
PIDA retains support of business, union and regulatory
interests
©PCaW 2010 - 00 44 20 7404 6609
Analysis of judgments from the employment tribunals –
3,000 to date
Where do the cases come from?
©PCaW 2010 - 00 44 20 7404 6609
Types of wrongdoing in PIDA judgments
©PCaW 2010 - 00 44 20 7404 6609
©PCaW 2010 - 00 44 20 7404 6609
What the surveys say
86% of UK employees believe that people in their company feel free to
report a case of suspected fraud, bribery or corruption. In Europe this
figure is 57% 1
Negative media portrayal of whistleblowers is virtually nil now
compared to 1997 2
The term “whistleblowing” is increasingly seen in a neutral to positive
frame 3
1. Ernst & Young – Survey into Fraud Risk Mitigation – UK Report
2. Karin Wahl-Jorgenson, Cardiff School of Journalism, Media and Cultural Studies – study
commissioned by Public Concern at Work, Where’s whistleblowing now? 10 years of legal protection
for whistleblowers
3. YouGuv survey 2007 & 2009, commissioned by Public Concern at Work, Where’s whistleblowing
now? 10 years of legal protection for whistleblowers
©PCaW 2010 - 00 44 20 7404 6609
Recent developments
Regulatory referral – in force April 2010
A compromise on open justice
Individual consent required
The Bribery Act
“adequate procedures”
Consultation on guidance out now
©PCaW 2010 - 00 44 20 7404 6609
The Bribery Act: the six principles
Risk assessment
Top level commitment
Due diligence
Clear, practical and accessible policies and procedures
Effective implementation
Monitoring and review
©PCaW 2010 - 00 44 20 7404 6609
What next?
Promotion of the law
Public interest test
Non-Executive Directors
PIDA outside of the Employment Tribunals – professional
bodies
Pre-employment/blacklisting
©PCaW 2010 - 00 44 20 7404 6609
©PCaW 2010 - 00 44 20 7404 6609
A lead from the top
Safety valve communication channel outside the line
Default is open reporting but respect confidentiality
Provide internal and external options
Avoid defensive legalistic terms
Distinguish whistleblowing from grievances and bullying
Access to independent advice
Promote policy effectively
©PCaW 2010 - 00 44 20 7404 6609
Grievances
Concerns
risk is to self
risk is to others
need to prove case
tip off or witness
rigid process
pragmatic approach
legal determination
accountability
private redress
public interest
©PCaW 2010 - 00 44 20 7404 6609
©PCaW 2010 - 00 44 20 7404 6609
Internal audit and review:
Concerns - volume
Concerns – substance
Adverse incidents?
Assessing trust and confidence
Other information?
©PCaW 2010 - 00 44 20 7404 6609
Audit Commission whistleblowing performance audits:
Minimal – Policy has been communicated to staff and
parties contracting with the body
Good – Policy is publicised within the body and
demonstrates the body’s commitment to providing support
to whistleblowers
Excellent – Track record of effective action in response to
whistleblowing disclosures. Periodic reviews of the
effectiveness of the arrangements and also effective
arrangements for receiving and acting upon information
from members of the public
©PCaW 2010 - 00 44 20 7404 6609
Policy conforms to good practice
Buy-in (those in charge)
The right start (practical implementation)
Communication & confidence (staff)
Briefing / Training (design. officers & managers)
Logging concerns (formal)
Reviewing the arrangements
©PCaW 2010 - 00 44 20 7404 6609
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