Imagine you are the first to notice that something bad has been going on at work. It has been going on for years. Some terrible mistake has been made, or some unjustifiable practice has crept in and become routine. You put down the torch and look up from the scattered piles of yellowing papers as it dawns on you: if this gets out, your organisation, your colleagues – perhaps you – will be in trouble. What do you do next?
Even spotting the problem in the first place might make you a fairly unusual person. Something happens to our powers of perception in institutions – a sort of blindness sets in. “But everyone was doing it!” was the first reaction of traders arrested in the Libor scandal. Men who ended up at the sharp end of #MeToo gestured indignantly to a long culture of harassment around them; all this seemed to be fine five minutes ago. When the 2009 expenses scandal broke, MPs bellowed down the phone at journalists: “This is outrageous, you just don’t understand the system.”
But let’s say you do make that radical intellectual leap: that even though everyone is doing something, it is not right. Are you going to say anything? You’d have to be brave. A sort of primal survival instinct seems to take over large organisations when faced with an internal accuser. They strike back. The lives of whistleblowers are made a misery, and after they lose their jobs they face years fighting this injustice in court while their original claims are forgotten. Financial ruin may follow. It can get shadier still – personal information is leaked and rumours circulated. Who’d be a whistleblower?
With that in mind, let us turn to three old scandals which resurfaced lately: years or decades after damage was first done, victims have yet to be paid, legislation has yet to go through and, in one case, an inquiry is still ongoing. On Monday, MPs voted to speed up the pace of compensating victims of the “contaminated blood” scandal. On Wednesday, the government stopped short of a “Hillsborough law” that would require candour in public officials, committing to a charter instead. And the week before, the government introduced a new Post Office compensation bill to ensure claimants did not miss out.
What links these three, other than the long wait for justice, is that they are really about cover-ups. It was a terrible mistake when clotting factor infected with HIV and hepatitis C sourced from US prisons was given to haemophiliacs. But what followed was worse: years of evasion and secrecy by doctors – medical records destroyed or falsified, patients kept in the dark while they died of their illnesses or infected others.
The Hillsborough scandal was not really about the decisions that led to a fatal human crush, but the efforts of South Yorkshire police and the willingness of newspapers to shift the blame on to fans. What made the Post Office scandal so shocking was not the wrongful prosecution of completely innocent people but that evidence this was happening was summarily ignored.
What is wrong with the NHS, or the police, or the Post Office, the subsequent inquiries asked, that these criminal cover-ups were allowed to happen? But they might as well have asked: what is wrong with human nature? “There is no exemplary case where someone noticed the problem, came clean, and the scandal ended there,” says a barrister who acts for whistleblowers. “The instinct is to burrow.” No institution is special; every scandal follows the same pattern. But how do you guard against a universal instinct?
Part of the problem is that there are few legal incentives to come clean. It would help if we could take the likes of Paula Vennells, who was chief executive of the Post Office at the height of the scandal, to court. But criminal prosecutions rarely happen after big institutional scandals because it is so hard to prove who knew what was going on, especially after decades have passed. We are left with inquiries: the equivalent of a coroner’s report. They can tell us what happened, but they can’t dole out punishments to those at fault. And they take years.
What, then, stands between us and the next Hillsborough, or contaminated blood scandal? The terrifying truth is that it might just be whistleblowers: those rare individuals who have the bravery to risk their careers – and often their health – for their cause. We depend on these people. As do the institutions themselves.
“It’s the cheapest form of risk assessment – listen to your staff,” says Elizabeth Gardiner, chief executive of the charity Protect, which advises and supports whistleblowers.
But current law – the Public Interest Disclosure Act – merely grants you a tribunal after your employer sacks you. “And these have a near-total failure rate,” says Philippa Whitford, an MP who has tried to bolster existing laws, “because you need to prove it was whistleblowing that led to your dismissal, but it is easy for your employer to find another reason.” Later, whistleblowers are often tied up with non-disclosure agreements so they can no longer go to the media. The problem they risked everything to expose may continue.
Whitford would like a whistleblowing commissioner with the power to set standards and to make it a criminal offence to harm whistleblowers. Gardiner would like systems for whistleblowing to be required of every employer.
The current laws aren’t good enough. Right now, it is inevitable that somewhere in the country, some company or public body will be methodically covering its tracks, compounding a shocking error. We need to make it easier to expose these scandals in the first place.
• Martha Gill is an Observer columnist
