HRA, Whistleblowing & PIDA
Introduction
The Human Rights Act (HRA) came into force on 2 October 2000. This paper looks briefly at its possible implications for our work. It consists of a list of points about the operation of the HRA in this area and then sets out some comments. A more detailed review of the relationship between the HRA and the Public Interest Disclosure Act (PIDA) can be found in Whistleblowing: The New Law (Sweet & Maxwell, 1999) John Bowers QC, Jeremy Lewis & Jack Mitchell.
At the time of writing these are early days for the HRA. There are three strands of opinion as to its impact. The first is that it will be revolutionary and that no existing law can be assumed to be safe; the second is that its impact will be very limited and that most UK laws are compatible with the Convention rights; the third is that over time it will affect a good number of laws.
While HRA is a beautifully drafted piece of legislation, what is clear from these views is that its implications are uncertain. My view is that the Government is right to say that almost all laws will continue as they are, though over time its influence will increase. The general impact of the HRA will be dramatically less than that which EC law has had on the UK laws, although HRA may well affect the way the State conducts itself. The poet in me would say the HRA is a deep mountain spring which will add some welcome fresh clear water to a majestic river which is fed by several substantial tributaries. The course of the river will not change.
The Convention
1. The ECHR gives a series of rights to people and bodies against the State. Almost all of these rights may be qualified if the infringement is prescribed by law, has a legitimate aim and is proportionate.
2. Two of the Convention rights have a potential bearing on our work - the right to privacy (art 8) and, more importantly, the right to freedom of expression (art 10) reproduced in the article. For any infringement to be allowed, the legitimate aim has to be one of those identified in the second paragraph to each article. Therefore the right to privacy may be qualified to protect the rights and freedoms of others. The right to free expression 'carries with it duties and responsibilities' and may be qualified to protect the reputation or rights of other or to prevent the disclosure of information received in confidence.
3. The key issue from the Strasbourg jurisprudence seems to be around the issue of proportionality. Breaches of article 10 have arisen mostly where a State has imposed a criminal sanction on free speech which was disproportionate(1). The convictions of journalists in Thorgeisson (police brutality) and Fressoz (hypocrisy / tax returns of top businessman) were not necessary in a democratic society. The clear inference is that some lesser, civil sanction could be proportionate as the infringements were found to meet legitimate aims.
4. Strasbourg has been very reluctant to interfere in employment relations. The recent victory in the Court in Vogt (teacher sacked by the State as she was a communist) appears exceptional. The sanction was not proportionate as she was a good teacher, her political views did not interfere with her work in any way, she had been open and honest for years about her views and her dismissal by the State ended her career.
5. The nearest case the Court has heard to whistleblowing was in Grigoriades, where a conscript won his case that a three month jail sentence for writing a letter to a senior officer saying the army was a conspiracy and crime against man was disproportionate. The Commission (which used to act as a first tier sifting court) has twice got nearer. Brown, who was severely reprimanded for talking to the media about safety concerns at Aldermaston, lost his case because the sanction was justified as protecting the rights of his employer and it was proportionate. Rommelfanger, who was sacked by a Catholic hospital for expressing views about abortion, lost because the Catholic hospital was not a public authority.
Comment: In the employment area, Strasbourg is unlikely to get involved in the private or voluntary sectors. In the public sector, it clearly accepts that there are legitimate matters which can qualify an employee's whistleblowing (protection of reputation and rights of employer and others and protection of confidential information). The issue is whether the sanction is proportionate. As an example if David Shayler were to successfully challenge in Strasbourg a prison sentence for breaching of the Official Secrets Act, this would in no way mean that (had it been the case) his dismissal from MI5 for the same disclosures would have breached article 10(2).
As to PIDA, we should not lose sight of the fact that it limits or overrides some of the qualifications that States are allowed to make article 10 subject to. If anything, therefore PIDA might be used by HMG to demonstrate that it has carefully balanced the rights of the respective parties and the public interest in the area of whistleblowing and article 10. While it is no ground for complacency, at present PIDA provides a level of whistleblower protection which is way ahead of anything in ECHR states (other than Sweden).
The HRA
6. The HRA can be directly invoked against public authorities(3) . These include a body such as the Take Over Panel, the Advertising Standards Authority or Railtrack in respect of their exercise of a public function. The HRA is not aimed directly at private bodies or persons.
7. Public authorities are prohibited from acting in a way which is incompatible with convention rights and therefore need to consider these rights and qualifications.
8. The victim of an infringement of a convention right by a public authority can bring infringement proceedings. If the claim is successful, the court can grant such remedy or relief as is just and appropriate and within its jurisdiction. Damages can only be awarded where necessary to satisfy the victim, but non-pecuniary awards under the convention have always been much less than those under english law. Outside of criminal law, this may appear a long hard slog for a small prospect of little return for many individuals. In time, it may well be that most HRA issues in civil law will be made by corporations rather than individuals.
9. The victim of an infringement of a convention right by a private person, company or individual cannot bring infringement proceedings, but - in enforcing any other right that victim may have against the wrongdoer - the court will construe that right so far as possible to be compatible with the HRA.
10. Courts are now required to construe legislation (inc. PIDA and ERA) so far as possible in a way which will prevent them finding it incompatible with convention rights. Courts will also be required to have regard to convention rights when applying and developing common law.
11. Where legislation is incompatible with the convention a court (but not a tribunal) can issue a declaration to that effect. I have not yet been able to resolve the conflicting views on whether for this purpose the EAT is a court.
12. Where there is a conflict between art 8 and art 10 rights, section 12 HRA gives particular importance to article 10 (freedom of expression).
Comment:I think the implications of the HRA in the ordinary workplace will be modest for a number of reasons. First, the art 8 and 10 rights may lawfully be balanced against, inter alia, the rights and reputations of others. While the two rights will be relevant in considering the extent and application of the common law duties of mutual trust and confidence, this sort of balancing occurs already in the law. Similarly while the ERA does protect employees, it is primarily concerned with the fairness of the process by which someone is dismissed. If a public authority weighs up these issues and reaches a reasoned and proportionate decision, it is difficult to see how or why this should be overturned at tribunal under the HRA. For private and voluntary employers, the implications of the HRA in this area are even more tenuous. Even if the finer points do need adjusting, there is no incompatibility with the HRA unless the sanction the State imposes is disproportionate. As PIDA offers protection to private and voluntary sector whistleblowers, HMG has discharged any HRA obligation it may arguably have to positively provide protection in this area.
While there is no doubt that many ingenious arguments will be advanced, for a successful HRA challenge in this area a public sector employee will need to get six ducks in a row and shoot them with four bullets (grapeshot is not allowed). A private or voluntary sector employee will have seven ducks and three bullets.
PIDA
13. Having said this, there are some interesting implications arising out of PIDA and the HRA. Whistleblowing workers for public authorities who are not covered by PIDA (e.g. the police, the army or a self-employed bookkeeper at the Millennium Dome) may find it gives them an extra bullet. They could claim to a court (not a tribunal) that their art 10 right was infringed by a reprisal. The public authority would need to justify the infringement under one of the legitimate aims in part 2 to each article. If their whistleblowing would have been PIDA protected had it covered that worker, that public authority might have a harder time showing that it had some legitimate reason why comparable protections should not apply to that worker. So there is a possibility that the scope of people covered by PIDA may in time be extended in the light of the HRA.
14. There are some other arguments that may be advanced as to PIDA, some of which may have validity. One is that a generous construction should be given to what is a qualifying disclosure under s 43B, particularly where the whistleblower works for a public authority. Another is that a narrow construction should be given to the 'not for personal gain' test in wider disclosures(4) . Another is that in considering whether a wider disclosure is reasonable, the tribunal will need to consider any privacy right under art 8(5) . Another is that the emphasis in section 12 HRA on art 10 over art 8 may encourage tribunals to view media disclosures slightly more generously.
15. As to the PIDA disclosure regime, it not only reflects the common law position under the law of confidence but, insofar as Strasbourg has addressed these points, is in step with ECHR jurisprudence. In Thorgeirson the Court rejected arguments that there should be less protection for disclosures of public concern than of political opinions. In Grigoriades the Court stressed that the conscript had made an internal disclosure and that the position might well have been different had he gone public with his concerns about the army. In Morissens the Commission implied that a teacher who went public with her concerns about discrimination should have had evidence to support them specially as she had not raised the concerns internally.
16. Although I have not been able to study the Goodwin decision (protection of sources), I do think that PIDA might have some bearing on this issue if it is considered by the court. This is because there is an argument that as PIDA protects certain media disclosures, the journalist's obligation to protect his source is less sacrosanct as it not the only means by which the State safeguards that art 10 right.
17. As to art 6 (fair and public trials) I gather some lawyers are looking out for a good PIDA claim against a public authority to argue an HRA point that legal aid should be available to ensure equality of arms. This article may also have a bearing on the issue of public access to IT1s, were an applicant to ask that his IT1 be placed on the register.
Comment: I think PIDA itself is pretty robust against the HRA, but that in time the Act may help to see PIDA's scope extended to other workers of public authorities.
References:
(1) Though in Tolstoy, the Court found the failure of the UK to allow a £1.5 million libel award against him to be reviewed on appeal was a breach.
(2)Another example is the HL decision that George Blake must account to HMG for the profits on his book. While this does not inhibit his free expression, it simply prevents him profiting from it. As such I doubt an HR challenge would succeed.
(3)PCaW is not itself a public authority and so the HRA does not apply directly to us
(4) In Barthold a vet ad been injuncted from commenting on lack of emergency vet services in Hamburg as in doing so he had incidentally promoted his own night-time service and so breached rules banning comparative advertising by vets. This breached art 10 and the Court said his incidental commercial benefit could not justify the interference with his art 10 rights. While bodies as well as individuals have human rights, art 8 is drafted in a way which does focus on the individual. I am unclear about the extent to which it includes commercial confidences.