On paper, there has never been an easier time to blow the whistle on government wrongdoing. As the size of the state has expanded, so too have audit offices, public interest disclosure schemes, and civil service codes designed to assist government employees who publicly expose misconduct. But the more the rules have multiplied, the less clear they have become. Fewer than 1 in 20 claims brought under the Public Interest Disclosure Act 1998 (United Kingdom) now succeed. After blowing the whistle, some 4 in 5 public servants in Australia report workplace harassment, dismissal, or disciplinary action. Though the path to government transparency has been paved with good intentions, a fragmented patchwork of schemes has become a labyrinth for would-be whistleblowers.
The chilling effect of this complexity is predictable. Whistleblowing in the civil service is on a worrying decline in liberal democracies around the world. The United States Office of Special Counsel, responsible for handling disclosures of wrongdoing within the executive branch, notes a consistent decline in whistleblowing from 2015 to 2022, despite the federal public service expanding. So too in the United Kingdom, where the All Party Parliamentary Group for Whistleblowing notes an overall decline in whistleblower reports over the past decade. Instead of safeguarding integrity, today’s public sector whistleblower rules are strangling it.
Whistleblowing by public sector employees and contractors is often celebrated as preventing fraud, corruption, and abuse of power. To cite a few examples, Daniel Ellsberg’s leaks of the Pentagon Papers led, in part, to turning public opinion around against the Vietnam War. Edward Snowden’s public release of a United States surveillance program led to a cultural discussion about privacy rights and cybersecurity. Katharine Gun’s revelation of the coordinated proposal for the US-UK plan to spy on United Nations diplomats in the lead-up to the Iraq War vote laid bare the efforts governments go to win votes. Each of these is now celebrated as an act of courage, but at the time, their states treated them as betrayals. Ironically, however, it is often the whistleblowers, rather than wrongdoers, who pay an enormous personal price. As human rights lawyer Kieran Pender notes, the first person imprisoned in relation to Australian war crimes in Afghanistan was not a war criminal, but whistleblower and military lawyer David McBride. Tax office employee Richard Boyle spent seven years in the courts after exposing unlawful debt-collection practices while senior executives went unpunished. Chelsea Manning spent seven years imprisoned for releasing footage of civilian attacks in Baghdad, and would have spent some 35 years but for President Obama commuting her sentence.
Wrongdoing by the state is often difficult to trace, slow to emerge, and shielded by secrecy laws. But an act of blowing the whistle is traceable to an individual and immediate. This asymmetry ensures that individuals bear the personal cost of whistleblowing, even though their act benefits the citizenry. Ellsberg helped end a war and Snowden triggered privacy reforms, yet neither of them were embraced by the states they served. We privatise government accountability to quasi-prosecutors before unleashing the arm of the state on those who demand it do better.
There is a strong economic case for public whistleblower protection. Estimates from the National Crime Agency indicate that the UK public sector loses some £40 billion through fraud every year. Moreover, the UK’s whistleblower charity, Protect, estimates that the cost to the taxpayer of failing to act on whistleblowing concerns in the Post Office Horizon affair, Carillion’s collapse, and the Lucy Letby murders was at least £426 million. Whistleblowers can allow civil service failures to be stopped before they spiral out of control.
Public servant whistleblowers are held to higher standards than corporate whistleblowers both in the legal and moral realms. When a corporate insider speaks out, they transgress company rules – non-disclosure agreements, their employment contracts, and internal reporting mechanisms – in favour of the common good. But when a public servant does the same, they are viewed as transgressing laws passed by the democratic process itself, even if there is widespread support for calling out state cronyism. The common law has not been of much assistance. In narrowly construing immunity statutes, courts have found the whistleblower to be the aggressor and the state the victim. For instance, immunity from civil prosecution under public service whistleblowing laws generally only applies to the ‘making’ of a disclosure, and not illegal anterior acts of preparing materials. Boyle v Director of Public Prosecutions (Cth) illustrates the point. In that case, a tax office whistleblower exposed illegal debt collection practices through recording conversations on his phone and storing taxpayer information on a hard drive. The Court said that if the Parliament had intended for immunity to attach to preparatory acts, the statute could have been drafted that way, and there is ‘no room in our society for individuals to be able to take the law into their own hands’. That reflects the longstanding criticism against public service whistleblowers that in arrogating the task of determining what is a legitimate or illegitimate state secret, they undermine the decisions of democratically elected officials (see Eric Boot in a 2019 issue of Law and Philosophy).
But in the private sector, illicit evidence gathering may be treated more liberally. In the United States, many non-disclosure agreements become void if they would inhibit the reporting of fraud or crime. And there may be strong normative and political reasons for a prosecutor to drop cases concerning acts made in the course of revealing illegal corporate behaviour. These decisions, while discretionary, are arguably still democratic. They allow overwhelming public support, as in cases like Katharine Gun and Witness K, to guide prosecutorial decisions, usually justified at being ‘in the public interest’. But we cannot allow ad hoc intervention of the executive to become the bedrock of accountability in public administration. That leaves the fox to mind the henhouse.
There lies the paradox that Boot observes: we wish to maintain the prohibition on whistleblowing, because it violates the democratic ideal, and runs counter to the idea that civil servants owe their superiors strict obedience. But at the same time, we also wish to provide justified acts of whistleblowing some form of legal protection. As Mailyn Fidler (2020) writes in the Harvard National Security Journal, the solution may come into play at the time of sentencing. Though public interest defences in the United States ‘have largely failed’, courts continue to take First Amendment considerations into account, mitigating sentence lengths in recognition of the public value of whistleblowing. This approach, however, may be leaving too much discretion with the judiciary. It offers little confidence to a would-be whistleblower predicting the outcome of their case.
The justification often used in whistleblowing discourse is that actions were taken ‘in the public interest’. As Boot explains, acting on this would require establishing a statutory public interest defence, but the issue lies in its indeterminacy: what exactly would qualify as justified conduct? He explains that existing theories of the public interest that prioritise the sum of individual interests, deliberative democracy accounts, or ‘common good’ theories are too uncertain. Instead, his workable defence would rest on three conditions: (1) that the whistleblower meets the ‘public interest condition’, there being both an objective and subjective test that exposing a secret serves the public interest; (2) the ‘ultimum remedium condition’, that a whistleblower must first exhaust all other alternative accountability channels; and (3) the ‘minimise harm condition’, that all reasonable steps are taken to mitigate harms ensuing from disclosure. This would include anonymising names, minimising national security exposure, and taking steps to work with media organisations. Moreover, a valid defence should ensure that disclosure attempts have been made in good faith and that making complaints public are not solely to defame or be made out of grievance. This requirement already applies to some other types of disclosure statutes such as those for corporate whistleblowing, which often require that a whistleblower has reasonable grounds to suspect that a disclosure concerns misconduct or a breach of the law. This defence, coupled with a good faith requirement, would offer whistleblowers confidence to come forward.
At this juncture, we encounter a central issue because whistleblowers may not be well-equipped to determine what the appropriate internal reporting mechanisms are before making a public interest disclosure. Even without the public interest defence, this has proven to be a difficult task given the fragmentation of whistleblowing laws. The European Union’s solution to this problem was to streamline all corporate and public law whistleblowers under the 2019 ‘Whistleblower Directive’, the so-called gold-standard of whistleblowing guidelines. Under the directive, which as of 2024 was adopted by all EU member states, organisations of over 50 employees must establish safe channels for whistleblowers to report breaches of EU law, and employees are protected if they go to the media when these channels have failed or if there is an imminent danger to the public interest. This has muddied the waters even further, as it only applies to breaches of EU and not domestic laws, many of which overlap, and others do not. For the non-lawyer, discerning between which disclosures are protected, and which are not, is a daunting task. This has led the International Bar Association to describe the lay of the land as a ‘complex maze, even for experienced practitioners,’ that has led to rights becoming ‘largely symbolic’.
Legal theorist Lon Fuller described the ‘inner morality of law’ as requiring eight features in order for rules to be worthy of the name ‘law’. Most importantly, at least for this discussion, they are that rules be sufficiently clear, non-contradictory, and possible to comply with. By this standard, many current whistleblowing procedures ought to be non-deserving of that name law at all.
One fix in vogue with advocates and the academy is a one-stop-shop Whistleblower Protection Authority. The Human Rights Law Centre argues such a body could provide caseworker-style support to navigate disclosure law, conduct mediation between whistleblowers and employers, and ensure remedies for whistleblowers who suffer from speaking up. Such powers, though more limited in scope, are already afforded to the Whistleblower Protection Agency in Serbia and the Protected Disclosures Commissioner in Ireland. This assists whistleblowers in navigating the patchwork quilt of regimes. Expanding such bodies would also lead to a moral shift in our discourse. Though whistleblowing may be seen as transgressing the state, or ‘snitching’, an organisation dedicated to whistleblower protection would undoubtedly shift the burden of justification. Other fixes are simple. Including anterior acts as immune from prosecution would close the Boyle loophole. A statutory public interest defence using Boot’s three criteria would provide public service whistleblowers with certainty. Anti-retaliation measures protecting employees from termination or providing compensation, enforced by protection agencies, would bolster the incentive to report.
The deeper question, though, is about solidarity. Whistleblowers are cast as actors of solitude, defying the state and democracy, but when good faith disclosure efforts are made and they are left with no other option than to make information public, they embody the highest ideal the civil service ought to aspire to: personal sacrifice for the public good. Until we simplify, incentivise, and expand protections, public servant whistleblowers will continue to be treated as outlaws, and the law will remain a labyrinth designed less to expose wrongdoing than to silence those who try.
Max Thomas is a second-year undergraduate law and economics student at The Australian National University.