On Saturday 10 June 2017, the Birkbeck Institute for Social Research (BISR) Guilt Group, in conjunction with the Centre for the Study of British Politics and Public Life, convened its fourth annual colloquium. It was devoted to whistleblowers.
In previous years, we’ve done on a larger scale what we do in research workshops throughout the year: bring people from different disciplines together to discuss a single theme, and let interdisciplinary sparks fly. The Whistleblowers Colloquium was different. It’s not that that we didn’t invite speakers from different disciplinary backgrounds. Lauren Kierans, who gave an excellent overview of the state of the law regarding Public Interest Disclosure, which is meant to afford whistleblowers legal protection, is an Irish barrister and a law lecturer at Maynooth University. Wim Vandekerckhove, having started as a philosopher, is now Reader in Business Ethics at Greenwich University. Marianna Fotaki qualified as a medical doctor, and is now Professor of Business Ethics at the Warwick Business School. They were joined by six whistleblowers: Julie Bailey and John Meek from Cure the NHS, and Eileen Chubb, Christine England, Joe Joskow and Karis Le Winton from Compassion in Care. The goal of this colloquium was to gather people with expertise and experience of whistleblowing, and ask them to enlighten us, and so help us discover whether we might make some useful contribution in this area.
We started the day by wondering whether whistleblowing doesn’t reveal worrying and irrational features of the way guilt works. Though whistleblowers may end up making an accusation, they are liable to feel guilty themselves for ever having been complicit with the abuse they’ve sought to stop or for not having been able to stop it. They may have guilt foisted upon them in a different way if their organisation decides to blame the messenger, and make a scapegoat out of the whistleblower. We noted the appalling burden that whistleblowing, as currently conceived, imposes on the individual, notwithstanding procedures that are supposed to preserve the whistleblower’s anonymity. That burden pushes whistleblowers from being ordinarily principled and civic-minded people, into a situation where they become liminal figures attempting to hold society or an organisation to account, but often without the wherewithal to do so effectively without great cost to themselves.
Lauren Kierans’ account of the Public Interest Disclosure Act (1998, and amended in 2013) (PIDA) explained some of its key definitions, including the question of who counts as a whistleblower, and compared UK law with best practice elsewhere. However, its remedies and protections are, at best, retrospective. The whistleblower has first to stick their neck out – a long way out – and much of the terrible drama of which we heard will have happened long before legal redress can be effected, assuming the whistleblower qualifies for it in the first place and can afford the fees. That drama can bring about the whistleblower’s isolation, the organisation’s retaliation against them, and unbearable pressure on the whistleblower’s mental health – a point made by Marianna Fotaki and confirmed by several of the whistleblowers. Its longer term consequences include permanently damaged careers, no matter how justified the whistleblower may have been, family breakdown, loss of friends, dire financial straits and illness.
It’s as if some whistleblowers find themselves locked in a latter-day trial by ordeal, and, even if they come through it successfully, they’re still liable to be scapegoated and sacrificed. All the whistleblowers’ narratives confirmed their sense of an overriding obligation to act as they had done. However, as Wim Vandekerckhove pointed out, whistleblowers don’t typically start with the fully formed intention of being whistleblowers. They start, usually, wanting and expecting the organisation to be true to itself and to live up to its own ideals. The choices that they make, step by step, in an effort to return to what they see as a situation of normality and probity, can take them to quite a different place from any they’d previously imagined even existed. Eileen Chubb has written movingly of how, as a care worker in Bromley, she was impelled by degrees to adopt a position of uncompromising opposition to the official world of management and legal regulation. Nothing short of public shaming on television (Eileen has worked with Panorama) can do any good, she reckons. It’s worrying then, as Lauren made clear, that PIDA’s arrangements are weighted in favour of keeping whistleblowing within the affected organisation. Joe and Karis, both of whom witnessed and tried to stop abuse in the private care sector, explained how managements and workers are practically unaccountable. A management or a care-worker censured in one place will simply pop up in another guise elsewhere.
Perhaps the most compelling and alarming testimony came from Julie Bailey, who spoke of how her mother Bella was mistreated in Stafford Hospital, where she died in 2007. The Francis Report of 2013 later confirmed the ‘appalling suffering of many patients’ as a result of ‘serious systemic failure’. Then, in addition to failures, errors and cruelty in the administering of care, came threats and an attempted cover-up. Julie started by trying to get the local NHS to live up to its professed ideals. However, the hospital was the largest local employer, and criticism of it aroused strong passions, and not just within the organisation. Having lost her mother, and haunted by the sights and sounds of a ward out of control, with patients in agony, and many staff ignoring their patients’ pain, Julie felt she had no choice but to take a stand. She founded Cure the NHS. She’s paid an appalling price for it. She suffered such threats and vilification, including the desecration of her mother’s grave, that she was finally driven from the town. It sounds like something out of seventeenth-century Salem. But it happened here, in twenty-first century Britain. And then in 2014, the year after the publication of the Francis Report, little Jonnie Meek died in the same hospital. His father, John, gave an unbearably moving account of his child’s death, while cataloguing what appear to be instances of grave incompetence, compounded by attempts to cover it up. As yet, the case remains unresolved.
Not surprisingly, some of our concluding discussion explored the possibility of doing much more than tinkering with existing arrangements. The problems whistleblowing as a whole reveals are less a question of occasional and atypical wrongdoing that can be readily corrected (the odd ‘bad apple’), than of a seemingly widespread liability to failure, corruption and cruelty. ‘Cultural’ change was canvassed in various forms. Wim Vandekerckhove reported a manager commenting on what it would take to get people in the hierarchy of their organisation to change their attitudes. Having mentioned the importance of symbolism, this manager said, ‘Somebody’s thrown off the fourth floor because they did the wrong thing. Leave the body there for a while. Everybody’ll get it’. This is ironically, as Wim pointed out, more often what happens to whistleblowers: they get made an example of. Though it’s a metaphor, it speaks of a world that experiences itself as disconcertingly violent and lawless. If this is the mental world people are living in, small wonder they sometimes behave cruelly.
It felt at times as if we were contemplating a David and Goliath struggle: the lone individual taking on a large organisation, with the organisation all too often wary and disdainful of independent judgement when exercised by those working within it. In Law, Legislation and Liberty (1973-79) the economist and philosopher Friedrich Hayek warned of the dangers of what he called ‘constructivist rationalism’: an attitude of mind giving rise to a form of organisation that seeks to control all contingencies and to prescribe outcomes, and which, in the process of committing itself to a preordained vision of ‘progress’, renders itself unaccountable to anyone here and now. The centrally planned, totalitarian state is an obvious instance of Hayek’s constructivist rationalism. Hayek’s solution had two main elements: political and economic competition, and the rule of law upheld by a strict separation between law-making and executive powers. Everyone would then, thought Hayek, have a degree of independence consistent with a society running in accordance with impartially applied, general rules. In such a world, there would be scant scope for tyranny, because personal domination would have no place. We would obey laws, not people.
However, while Hayek was intent on guarding against constructivist rationalism at the state and societal level, he was less concerned about other organisations, such as businesses, being rationally constructivist, especially if they were in competition with each other. It was possible at times, as we reflected on whistleblowing on Saturday, to wonder whether the dire consequences of constructivist rationalism were not being laid before us. The rule of law may exist somewhere, but, for many of the purposes with which we were concerned, its application is usually deferred. Meanwhile whistleblowers, having started by trying to reassert what one would like to think of as normal decency and integrity and (especially in the care sector) common humanity, find themselves in a ghastly other world – a bit like going into Bluebeard’s Castle, being beguiled by the charming and spacious state rooms, and then taking a wrong turn and finding oneself unexpectedly in the torture chamber. Unsurprisingly, the team from Compassion in Care sometimes evinced a sense that almost anyone doing all right for themselves in the ‘official’ world of careers and rewards and confidence in one’s rights and standing was liable to be compromised. These goods of the ‘official’ world are precisely what the whistleblower forfeits on being sent into a kind of internal exile. Anyone who’s seen the average HR department dealing with a justified grievance will know all too well that, when the denial finally stops, what often follows isn’t repentance, reform and reinstatement, but merely the offer of enough money to make the complainant go away, often having signed a ‘compromise’ agreement of a kind that became notorious in the NHS for a time – the kind with gagging clauses in them. Though most of the whistleblowers at the colloquium had paid a high financial price, they were emphatic that the stand they’d taken wasn’t about money, and that in continuing the struggle they weren’t motivated by desire for compensation.
British society has vestiges of an old system in which personal authority was held virtually as a private possession, passed on within the same families in principle for ever: the hereditary aristocracy, the monarchy. But we like to believe we actually live in a quite different world: a world of formal equality, and of delegated powers exercised by office-holders for specific and limited functions under the rule of law – a world more like the one Hayek proposed. Saturday’s event revealed a hideous alternative: a world in which organisations are apt to feel so threatened by protests from within their ranks that they are often willing to shield wrongdoers while destroying the finances, the future, and the health of any who dare speak out. Christine England cited specific examples that she’d witnessed of this happening in the NHS. As Marianna Fotaki argued, whistleblowers often wind up in that most awkward of positions: a marginal one – neither properly inside nor outside the organisation. There’s a danger of the organisation acting as if it’s fighting a foreign body, and seeking to expel the whistleblower. But that means there’s also a risk of the rule of law itself being perceived as lying outside the organisation, with obvious and disquieting implications for the attitudes that will therefore prevail within.
Wim Vandekerckhove spoke of whistleblowers often coming up against a ‘gatekeeper’ mentality within the organisations in which they find themselves. The gatekeeper deals in bureaucratic procedures, rules and technicalities. Theirs is a world carved up into specialized remits. What the gatekeeper baulks at is the bigger picture and common humanity. It’s an attitude modern bureaucracy tends to foster, and it readily goes along with a system that evades accountability, because adherence to procedure ousts the taking of moral responsibility. Hence Hannah Arendt’s judgement that bureaucracy is capable of being peculiarly oppressive, because no one can be held to account. In his study of whistleblowers, C. Fred Alford writes of organisations that have become concerned to stop people making connections and thinking for themselves. One might see some organisations as being equally intent on stopping people noticing and feeling for others. Julie Bailey recalled seeing nursing staff who had simply ceased to attend to patients in unbearable pain. Sadists, grotesquely, seem to fit more easily into some organisations than whistleblowers possessed of common humanity and the uncommon moral courage it takes to speak up for it. In exercising a very personal power for purely personal gratification, in a worrying way, sadists may better exemplify the culture of some organisations than the whistleblowers who challenge them. To judge from Eileen Chubb’s account in Beyond the Facade of her time working in the Isard House care home, there’s a kind of sadist that can thrive in hierarchical organisations: adept at deferring to those above them, and terrorizing or corrupting those below them, they remake the organisation around themselves.
The picture we’ve presented here may seem unduly bleak. So far as the Guilt Group’s investigation of whistleblowing goes, it’s early days. It may yet prove to be so. But we started Saturday by merely entertaining the idea that whistleblowing might reveal something amiss, not just in particular cases, but with what we think of as normality in organisations and even in society at large. We fully expected this rather bald and bold hypothesis to be qualified and chipped away at as our speakers generously set about enlightening us regarding the realities of whistleblowing. We ended the day with the grim conviction that our hypothesis might not have gone far enough.
Sam Ashenden & James Brown
Our thanks for Naomi Segal and Ben Worthy for constructive criticism of this piece.
For a brief account of developments and dilemmas in policy and culture in relation to whistleblowing, see Ben Worthy’s blog, ‘Whistleblowing: past, present and future’.