Leading whistleblower attorneys Stephen M. Kohn and David Colapinto of Kohn, Kohn & Colapinto recently attended the 1st Annual Whistleblowing Awareness Week in London. From Monday, March 20 through Friday, March 24, Kohn and Colapinto gave keynote addresses, spoke on panels, and discussed much needed reforms to the UK’s policies with other whistleblower advocates and members of Parliament. The All Party Parliamentary Group for Whistleblowing, a multi-party group established to advance legislation benefiting whistleblowers, co-hosted the event with WhistleblowersUK, a non-profit organization led by Georgina Halford-Hall.
Following Whistleblowing Awareness Week, minister Kevin Hollinrake MP announced that a review of the whistleblowing framework in Parliament would in fact take place. While this is a step in the direction that Halford-Hall and others were hoping for, they are concerned that it is not enough.
“We will be asking the Minister to extend the scope of the research and commit to a firm timetable for the review of the Public interest Disclosure Act,” Halford-Hall said. “Having read the announcement, which is welcomed, properly I am concerned that it has avoided tackling the real problem at the centre of the cycle of failure that surrounds existing legislation by seeming to try to contain any amendments within existing law.”
Hollinrake, a conservative member of Parliament, has shown support for the Office of the Whistleblower Bill in the past, citing that 43% of all financial crime is identified by whistleblowers, so “proper whistleblowing protection is absolutely critical.”
While these developments take place in the UK, we caught up with Kohn and Colapinto to reflect on the week.
Q: What has your prior involvement been with UK whistleblower groups and efforts?
David Colapinto: Zero. This was the first time I’ve met them, and I did not know anything about them until we went over there. I have relied on Jane Turner, who went over and met them last year, and others who have told us that they were a good group.
Q: What made you wish to get involved with Whistleblowing Awareness Week and whistleblower efforts in the United Kingdom?
David Colapinto: What they’re trying to do is desperately needed in the UK, and that was confirmed by our trip. I didn’t realize how bad the laws were. Clearly, there’s a connection between fraud that happens in the UK, Europe, and other parts of the world with what happens in the United States. A lot of folks that work in the financial sector in the UK end up using US laws because the fraud is part of a larger scheme that is within the jurisdiction of US law enforcement and regulatory authority here in the United States. A lot of those people in the UK are eligible for whistleblower awards in the United States. I think we were very curious as to why the UK was struggling so much in this area and why they are so far behind. We were also interested in the efforts of the All Party Parliamentary Group that Whistleblowers UK is tied to. Baroness Susan Kramer, who’s in the House of Lords, spoke at National Whistleblower Day here in 2019 and gave a brilliant presentation discussing the need for a law in the UK. At that time, I didn’t know her connection, or maybe at that time the connection didn’t exist, between her efforts and Whistleblowers UK. So we got to know them which was great, and that was the primary purpose of the trip.
Stephen Kohn: The United Kingdom has terrible whistleblower laws. They’re anti-retaliation law is a total failure, is highly criticized, and has not been updated for 25 years. They have no reward laws. So we’re concerned transnationally whenever whistleblowers who reside outside the United States cannot get due process. That is why we’ve engaged.
Q: Where does the UK struggle the most? What are they missing?
David Colapinto: They are light years behind. I hate to say that about our cousins across the pond, but their statute on whistleblower retaliation is woefully inadequate. We spoke to several whistleblowers who had used the tribunal system to challenge their wrongful dismissal for whistleblowing. They had meritorious cases, but they can’t recover their attorneys fees. So they might get back pay, or get reinstatement, but they still owe a huge lawyers bill. So, you know, for the privilege of suing and getting your job back, you have to pay money. That must have a chilling effect. I mean, a lot of people are either not going to blow the whistle at all, or if they blow the whistle and they get fired, a lot of people just aren’t going to bother with a termination case, because they don’t have the funds to be able to fight the companies.
At least if they have a fee shifting statute to award attorneys fees to the whistleblower if they win, then at least they would not have that economic harm. But, who’s going to put out $100,000 or more to litigate an employment case? You get reinstated. Great, you get your job back, but everybody hates you at work. And then you know, you get a little bit of back pay but that’s not enough to pay your legal bills. That’s a big problem.
I also think they lack an aggressive regulatory structure to go after financial fraud and other types of misconduct. They don’t have any monetary incentives or any reward system in place like we do in the United States, and they are hostile to it. I think what they’re trying to do is to implement this Office of the Whistleblower and give it a lot of powers. But you know, how far it will be able to go is an open question, but whatever they’re trying to do is a step forward. They have a lot of ground to make up.
Q: Why do you think UK advocates look to the US for advice and support when amending or creating whistleblower laws of their own?
David Colapinto: I think because of the experience of the United States in developing laws. Our laws have undergone numerous changes in the last 40 years. We started off with a very modest number of laws which have grown over time and then expanded. A big shift was the False Claims Act of 1986. Prior to that time, there were only a few whistleblower retaliation statutes in the United States, and that’s primarily what our firm did in those days. We didn’t do any False Claims Act cases until several years later, and the whistleblower retaliation statutes progressed over time. There were more of them that kept getting added on. There was also, on paper, a good whistleblower retaliation statute for federal employees in the United States. So we have had a lot of experiences of failures, as well as successes, and I think they’re looking to the United States based on the fact that we’ve been doing it for 40 something years. They have one whistleblower law there [the Public Interest Disclosure Act] which was passed in 1998. Based on everything I was hearing from whistleblowers and practitioners over there, it is wholly deficient. It is worse than anything that we had at the time we started practicing law here. So, I think looking to the United States is, you know, a responsible thing to do.
Stephen Kohn: The members of Parliament who are urging reforms in the UK, and the main whistleblower group, Whistleblowers UK, know about the US laws and realize that they work exceptionally well. They are all pushing as hard as they can to bring the UK up to speed.
Q: David, you appeared on the panel titled “Modern Approaches to Whistleblowing”. What did your group discuss?
David Colapinto: Most of the speakers on the panel were from the UK. I think I might have been the only US representative on the panel. Most were whistleblowers telling their experiences under the laws that they have. The panel also had a lawyer from the UK who had offered their new law. I only spoke for a few minutes and mentioned the hallmarks of our whistleblower laws and what has worked based on our experience.
Other panelists included Jonathan Taylor, former global counsel for SBM turned gas industry whistleblower, Claudio Costagliola di Fiore, senior tech advisor, Tom Warren, investigative journalist at Buzzfeed News, Graham House, co-founder of the Independent Defence Authority, Aristeidis Danikas, South African police whistleblower, Simon Horsfield, British employment lawyer, and Helen Hughes, Chief Executive of Patient Safety Learning.
Q: Did you have any surprising findings from WBAW or speak with anyone whose perspective surprised or stood out to you?
David Colapinto: I was really impressed with everyone there. I was impressed, particularly, with the accessibility and the working knowledge of the issue and the sincerity of the members of Parliament who are involved in this. In the United States you have more direct interaction with members of Congress’ staff, whereas in the UK, the Parliamentary members that we met were present, accessible, and interested to know what we had to say from the United States. They were genuinely supportive and knowledgeable of the issue, and they wanted to know and learn more. So there really was a depth of immersion of these members, politicians, and elected leaders on the issue, which I didn’t expect. I expected things to work more like they do here.
The other thing that jumped out at me was the whole concept of the All Party Parliamentary Group. They apparently have these created for a number of different issues or topics where they’re trying to reform the law. And I thought it was just, you know, laudable to see people from different parties working together and putting aside all ideological differences. You know, we tried to do that in the United States with whistleblower caucuses. I guess there is one active in the US Senate, but we haven’t been too successful in the House. It’s really tough to have conversations if it’s going to be entangled in some sort of partisan infighting. They’re just getting started with having all the major parties involved. They had one leader who chaired their group, Mary Robinson from the Conservative Party, who was very nice and very open and friendly. In the House of Lords, there is Baroness Susan Kramer, a member of the Liberal Democrats. And then at the opening event where Steve spoke, they had, for the first time, a Labour Party representative who came out in support of the bill. As the week progressed, they had another event in Parliament where a member from the Scottish National Party spoke in favor of the bill. So they’re really getting advocates in each party to support the bill.
Stephen Kohn: We were very happy that so many members of Parliament recognized the need for stronger whistleblower protections, and also fully recognized the importance of their contributions. So they’ve won there, and that’s really the first hump. There was nobody there saying that whistleblowers are just disgruntled people. There were enough examples, and enough cases, showing that whistleblowers had done good things. I was very happy to see that that type of slander to whistleblowers wasn’t happening. I think that because of the recognition that whistleblowers need more help, both avenues going forward are viable, either through US or UK laws. You know, the whistleblowers who can meet the US criteria are fantastic, but they need a better law covering all whistleblowers in the UK.
Q: There is clearly a lot of hope for UK whistleblower laws and people who wish to make a difference, as seen by the WBAW turn out and feedback. What is next? Is anything yet to be done by the advocates, or is the future now completely in Parliament’s hands?
David Colapinto: No. I think that there’s a lot of public education that needs to go on and that will continue. They called it “Whistleblowing Awareness Week” for a reason, because there isn’t much awareness throughout the country. And that is a problem. So I think they’ve organized a kickoff that will have a good head of steam coming out of this event. I think we can expect to see more of a public outreach campaign, perhaps highlighting whistleblower cases in the media and the need for this legislation in the UK. They have a long way to go to build support. The other thing they’re doing, and they’re very mindful of this, is rallying up citizens to lobby their members of Parliament to support this bill. So I think those efforts will continue.
Stephen Kohn: The future is always in the hands of the people to put pressure on their elected representatives and let them know where they stand. Whistleblowers UK has done a very good job on that, and this Whistleblowing Awareness Week did a very good job of bringing whistleblowers and their stories directly to the decision makers in Parliament. We hope that the House of Lords will commence this process and pass the proposed legislation as quickly as possible, and we understand that can happen. Once the House of Lords passes it, it will come into the Commons, and then it’s a question of what the ruling party will do. A minister from the ruling party expressed support for the legislation, but they may amend. Support was also expressed by the Labour Party, the Liberal Democratic Party, and the Scottish National Party. So, they have bipartisan support, but the House of Commons will be the tricky one, and we’ll see how far it goes. But I’m optimistic that they’ll do something.
Q: Anything else you wish to add about WBAW or the UK’s whistleblower efforts?
David Colapinto: Everyone we met there was committed to the issue. The whistleblowers that we met were very knowledgeable and very keenly aware of the deficiencies in their legal system. We’ve met some whistleblowers who had some comparisons with the US system, because they’ve come to the United States and dealt with US regulators and law enforcement, and they could attest to the differences. So I thought that was very effective. And even though there is this hostility within British culture towards the payment of awards to whistleblowers, I think minds can be changed.
Stephen Kohn: One other thing that came out right in the beginning of the week-long event was a recognition that financial frauds and corruption is transnational. Money moves from country to country, businesses move from country to country, so you need a transnational approach. It also came out that the laws should be aligned to effectively fight corruption. As much as we can, we should aim to align the UK approach with the US approach. That would be better for everybody. So that recognition of the need for alignment was really heartening, and that came from the UK advocates, not from us. It was their perception, which we completely agree with.