Ethics Hub
Whistleblowing
Introduction
One of the many issues raised by the Post Office Horizon scandal is the scope of a lawyer’s professional, regulatory and ethical obligations to raise concerns about wrongdoing by their employer.
As a Costs Lawyer, you might find yourself in a situation where you become aware that your employer is involved in wrongdoing that will affect others. In this situation, it is likely that you will need to raise a concern about this internally, or externally to a regulator or another organisation.
Whistleblowing legislation provides certain protections for employees and workers who raise concerns in the public interest. Costs Lawyers, whether working in-house or in private practice, are protected by whistleblowing legislation as they will usually be employees or workers.
Costs Lawyers will usually have a contractual duty to act in the best interests of their employer. They also have obligations under the Code of Conduct to act in the best interests of their client and to maintain client confidentiality. However, Costs Lawyers also have wider obligations to act with honesty and integrity, and to promote the proper administration of justice and the rule of law. It is important to keep the public interest, and public perception of the profession, in mind at all times. This will be important when deciding whether, when and how to report a concern.
The information on this webpage sets out your professional and regulatory obligations in this area. It also explains the steps you should take if you have a concern, and what protections are in place for whistleblowers.
What is whistleblowing?
Protect defines whistleblowing as: “A worker raising a concern with someone in authority — internally and/or externally (e.g. to regulators, MPs, MSPs, the media) — about wrongdoing, risk or malpractice that affects others.”
The Public Interest Disclosure Act 1998 protects employees and workers from detrimental treatment by their employer for raising a whistleblowing concern.
The protections under the Public Interest Disclosure Act 1998 only apply if you make a “qualifying disclosure” in accordance with the Act. If you are thinking about raising a whistleblowing concern, you should consult the Act to ensure you will be making a qualifying disclosure. This will depend on factors such as the subject matter of the disclosure and who you make the disclosure to.
What disclosures are protected?
Generally, you are protected under the Public Interest Disclosure Act 1998 if you make a report about any of the following, and you reasonably believe that making a disclosure about the matter is in the public interest:
- that a criminal offence has been committed, is being committed or is likely to be committed;
- that a person has failed, is failing or is likely to fail to comply with any legal obligation to which they are subject;
- that a miscarriage of justice has occurred, is occurring or is likely to occur;
- that the health or safety of any individual has been, is being or is likely to be endangered;
- that the environment has been, is being or is likely to be damaged; or
- that information tending to show any matter above has been, is being or is likely to be deliberately concealed.
You can raise a concern at any time. Your concern can be about wrongdoing that happened in the past, wrongdoing that is happening now, or wrongdoing that you believe will happen in the near future.
You can also raise a concern about something that is taking place overseas.
What disclosures are not protected?
Personal grievances (for example bullying, harassment, discrimination) are not covered by whistleblowing law, unless your particular case is in the public interest.
The disclosure of privileged information by lawyers is also expressly excluded from the protections under the Public Interest Disclosure Act 1998. Whistleblowing protections will therefore not normally extend to information provided by your client for the purpose of obtaining legal advice or conducting litigation, as this information will usually be protected by legal professional privilege. Whistleblowing within costs law firms and other types of law firms will therefore likely relate to the actions of people working within the firm, not its clients.
You should bear in mind that the legal protection offered to whistleblowers relates only to the activity of making a qualifying disclosure. It does not cover your conduct in obtaining the disclosed information or in the way you raise your concern. You should therefore ensure that you do not do anything unlawful or unethical in order to raise your concern, in line with your obligations under the Code of Conduct.
How is whistleblowing different to regulatory reporting?
It is important to distinguish between whistleblowing and your duty to report ethical issues and disclosable events under the Practising Rules and Code of Conduct.
As a Costs Lawyer, you must tell us when you experience a disclosable event, and you must notify us of a breach of our regulatory rules by you or someone else. For more information, please see our advice on Reporting ethical issues.
Whistleblowing concerns are different, because these will usually involve a situation where you are raising a concern and need protection for some reason – for example, because you are acting in breach of your employment contract by raising the concern externally.
It is also important to distinguish between whistleblowing and the requirements under general legislation to report certain information to other bodies or agencies. These include, for example:
- the requirement to make a suspicious activity report to the National Crime Agency pursuant to either the Proceeds of Crime Act 2002 or the Terrorism Act 2000 (for more information, see the Guidance Note on Economic Crime in the Costs Lawyer Handbook);
- the obligation to report a personal data breach to the Information Commissioner’s Office pursuant to the Data Protection Act 2018.
What are your obligations?
As a Costs Lawyer, you must act in line with your duties under the Costs Lawyer Code of Conduct at all times.
You have professional obligations to:
- act honestly and with integrity (Principle 1.1);
- act independently in the interests of the proper administration of justice (Principle 1.1a);
- not act in any way which is likely to diminish the trust the public places in you or in the profession of Costs Lawyers (Principle 1.7); and
- at all times, act within the law (Principle 2.1).
If you become aware that your employer or someone in your organisation is acting improperly or involved in wrongdoing – or is intending to act or become involved in wrongdoing – you should raise your concerns with them directly and advise them of the risks and implications of their actions. This is in line with your duties outlined above.
If no action is taken as a result of you raising your concerns – for example, if the person involved chooses to ignore your concerns – you should consider escalating your concerns to a more senior person in your organisation.
If addressing the issue with the person involved or your employer directly does not resolve your concern, you will need to consider whether you can continue working for your organisation and still meet your regulatory obligations and duties.
Depending on the circumstances, you may also have an obligation to make a report to an external regulator, law enforcement agency or another organisation. Please see our advice on Reporting ethical issues for more information. Note that your obligation to consider whether you need to make a report to an external authority continues even if you decide that you are unable to continue to work for your employer.
Regardless of whether or not you need to make an external report about the matter, you should record the action you have decided to take together with your reasons. This will help to demonstrate that you have acted with independence, honesty and integrity.
How can you raise a whistleblowing concern?
As set out above, there is a difference between whistleblowing and your duty to report ethical issues and disclosable events under the Practising Rules and Code of Conduct. As a Costs Lawyer, you must tell us when you experience a disclosable event, and you must notify us of a breach of our regulatory rules by you or someone else. For more information, please see our advice on Reporting ethical issues.
If you need to raise a whistleblowing concern, the starting point will usually be to raise it with your employer. Disclosures made to your employer will qualify for whistleblowing protections (assuming they meet the other criteria in the Public Interest Disclosure Act 1998).
If your employer has a whistleblowing policy, you should follow the procedure set out in that policy.
If your employer does not have a whistleblowing policy, you should still try to raise your concern internally. The fact that your employer does not have a whistleblowing policy does not negate your obligation to raise concerns; it simply means that you should consider alternative channels for doing so.
You might find yourself in a situation where it is not possible, or appropriate, to raise or escalate concerns with your employer. For example, because your concern is time-critical, or your employer or senior leadership is directly involved in, or responsible for, the wrongdoing. In this situation, you should consider whether you need to make a report to an external regulator, law enforcement agency or another organisation.
There are various external organisations that you can contact regarding a whistleblowing concern. The procedure you need to follow depends on the organisation you are contacting – each has its own channels and procedures for handling whistleblowing concerns.
You can raise a concern with an external body at any stage; you do not have to raise your concern with your employer first. However, you should raise your concerns internally first if you can. This is likely to be the most effective way of addressing your concern quickly.
Another person or organisation that is responsible for the wrongdoing
Where the issue causing concern is the responsibility of a person or organisation other than your employer, you can raise your concern directly with them. For example, if a contractor is carrying out work on site at your firm and you notice a serious health and safety breach, you can raise your concern with that person. This is a legitimate way to make a qualifying disclosure under the Public Interest Disclosure Act 1998.
Prescribed person or body
You can make a report to a prescribed person or body that can deal with the concern you are raising, such as a government body, auditor, regulator or law enforcement agency. For example, concerns about data protection can be raised with the Information Commissioner. You can also raise a concern with a Member of Parliament, as all MPs are prescribed persons.
The Public Interest Disclosure (Prescribed Persons) Order 2014 sets out the list of prescribed persons that an individual may approach (outside of their employer) to report wrongdoing, risk or malpractice.
You should take care to identify the correct prescribed person for your concern, because your disclosure will only be protected if you raise a concern that is within that body’s remit. If you are unsure about which prescribed person to make your disclosure to, you can contact Protect for advice.
You can make a report to a prescribed person or body on an anonymous basis, or request that your name is kept confidential.
Government ministers
If you work for a statutory body, government-appointed organisation or a non-departmental public body, you can make a disclosure to a government minister, either directly or through their officials.
Another person or body
If your concern relates to an “exceptionally serious failure”, you can consider making a disclosure to another person or body other than those listed above, for example, law enforcement or the press. There is no statutory definition of what would constitute an “exceptionally serious failure”. If you are considering raising a whistleblowing concern in this way, you should consider seeking independent legal advice.
In this situation, you will need to have a reasonable belief that the information you are disclosing is substantially true, and need to show that you are not disclosing the information for personal gain.
You will also need to show that the disclosure was reasonable in all the circumstances, in line with the conditions set out in the Public Interest Disclosure Act 1998.
Raising a concern to the media should be treated very carefully, and is only likely to be the most appropriate way of addressing your concerns in rare and exceptional circumstances. If you are considering this course of action, you should contact Protect or seek independent advice in order to determine whether this is the best course of action.
A legal advisor
You may wish to seek independent legal advice about raising a concern. You can do this at any time. Disclosures made in the course of seeking legal advice are protected under the Public Interest Disclosure Act 1998.
You can also contact whistleblowing charity Protect, which offers free legal advice.
If you are contemplating disclosing information as a whistleblower, you will need to consider whether the wrongdoing that you are concerned about falls into one of the categories of qualifying disclosures under the Public Interest Disclosure Act 1998 (see above under “What disclosures are protected?”).
You will also need to consider whether and when to report the matter to the police and any relevant regulatory bodies. This is likely to depend on the outcome of your initial whistleblowing disclosure.
You should keep a written note of the action you take, your reasons for doing so, who you spoke to and their response.
In practice, every situation will have unique characteristics and you must decide how to meet your professional and ethical obligations on a case by case basis. This means that you must exercise professional and situational judgement, and give consideration to any ethical issues at hand, when considering how to act.
Regardless of the situation you are facing, you should always consider your obligations under the Code of Conduct, and ensure that you are familiar with the Guidance Notes in the Costs Lawyer Handbook and any relevant advice in the Ethics Hub.
If you are in doubt about what steps you should take, you should consider speaking to Protect. You can also contact us directly for assistance. While the CLSB is unlikely to be the appropriate recipient of whistleblowing disclosures (as we do not regulate entities/employers), we will support any Costs Lawyer who is looking to raise a concern in good faith.
How do the protections apply to lawyers?
Costs Lawyers, whether working in-house or in private practice, are protected by whistleblowing legislation as they will usually be employees or workers. This means that you have a right to not be dismissed or suffer detriment if you make a qualifying disclosure under the Public Interest Disclosure Act 1998.
However, whistleblowing protection does not apply if the information you disclose is subject to legal professional privilege. Protect provides detailed information about how the whistleblowing legislation applies to solicitors. Given the close alignment between the Costs Lawyer and solicitor professions, the information will be relevant and helpful for Costs Lawyers.
Further resources
Whistleblowing for employees (gov.uk)
SRA reporting obligations (relevant to Costs Lawyers working in SRA-regulated firms)
SRA draft guidance – reporting concerns about wrongdoing when working in-house (1 March 2024) (relevant to Costs Lawyers working in SRA-regulated firms)
CILEx Regulation – Whistleblowing (relevant to Costs Lawyers working in CILEx-regulated firms)
Protect is the UK’s whistleblowing charity, providing free and confidential advice to support whistleblowers in reporting wrongdoing in the workplace. You may find their practical and legal checklist for whistleblowers helpful.