UK: Whistleblowers exposing national security issues must be protected

UK:  Whistleblowers exposing national security issues must be protected - Protection

UK armed forces at Kabul Airport, 2021. Photo:

ARTICLE 19 is concerned that UK legislation still fails to protect whistleblowers who disclose information about national security. We call on judicial authorities to uphold freedom of expression standards in the ongoing case of Josie Stewart, a former employee of the United Kingdom’s Foreign, Commonwealth and Development Office (FCDO). She is bringing her former employer to trial for unfair dismissal for giving an anonymous interview to the BBC about the UK government’s failures in handling the withdrawal from Afghanistan. 

In March 2022, Josie Stewart, who had worked in the Foreign Office for seven years, including in the UK embassy in Kabul, reported to the BBC that Boris Johnson, who was prime minister at the time, had ordered that an animal charity be prioritised during the evacuation from Afghanistan after the Taliban troops took control of the country. She was dismissed for her decision to speak up about the chaotic response to the crisis and for highlighting the fact that the prime minister’s instructions failed to follow any actual existing policy. 

Stewart is challenging her dismissal by taking her former employer to a labour tribunal, invoking the legal protections for whistleblowers under the Public Interest Disclosure Act (PIDA). In the UK, PIDA does not apply to disclosures that violate the Official Secrets Act. In 2002, the House of Lord ruled there is no public interest test in the Official Secrets Act. PIDA has been repeatedly used against whistleblowers who disclosed material of public interest to the media. 

Through her case, Stewart is testing how strong protection is for a public official who discloses sensitive information in the public interest about the government’s response to a crisis situation in which lives were at significant risk and needed to be saved. The court will have to establish whether Josie Stewart hads disclosed information in ‘exceptionally serious circumstances’ and whether it is therefore viewed as ‘reasonable’ to have done so.

The UK government has called for Rule 94 of the Employment Tribunal Rules to be applied. Rule 94 allows proceedings brought by a public official against a minister to be held in private in the interests of national security. It is reported that the first hearing was held behind closed doors and media were denied entry. This means that, in addition to the media block, parties directly involved in proceedings have not been allowed to share any information about what has been said during the hearing.

ARTICLE 19 is concerned that Rule 94 has been applied in order to prevent the media from reporting about the proceedings and the public from knowing the extent of the FCDO’s failures in managing rescue operations from Kabul. We call for judicial authorities to ensure proceedings are open and for the media to be able to report about information in the public interest.

ARTICLE 19 also reminds the UK authorities that whistleblower protection falls under the right to freedom of expression and the public’s right to know, as established under international and regional human rights standards. Strong protection for whistleblowers is critical to an effective protection of the right to freedom of expression, accountability and democratic governance. In particular, we recall that the European Court of Human Rights in Guja v. Moldova held that even in national security cases, the public interest in the information must be considered. 

Importantly,  the UN Human Rights Committee also called on the UK to review powers provided under the Official Secrets Act 1989, which have been exercised to dissuade former employees of the Crown from bringing into the public ‘domain issues of genuine public concern, and to prevent journalists from publishing such matters’. 

Therefore, we urge the tribunal to consider these international and regional standards on the protection of whistleblowers in Stewart’s case. ARTICLE 19 recommends authorities ensure that their powers to protect information genuinely related to matters of national security are narrowly utilised and limited to instances where it has been shown to be necessary to suppress release of the information. 

We also call on the UK Government to strengthen the protection of whistleblowers, especially by ensuring that the PIDA overrides other laws, including the Official Secrets Act. ARTICLE 19 believes that whistleblowers in national security situations must have the same protections and mechanisms of those in other cases.