Whistleblowing to Prescribed Persons

The Department for Enterprise sought views on adding new persons and bodies to the list of 'prescribed persons' workers may whistleblow to. The consultation specifically asked for feedback on adding a number of UK medical regulators and Members of the House of Keys/Members of Tynwald to the list.

The consultation opened on 5 January 2024 and closed on 1 March 2024. There were 55 responses to the consultation.

There was overwhelming support for the proposal that a number of UK medical regulators should be added to the list of prescribed persons, with 89% of the responses in agreement.

On the issue of whether MHKs or Members of Tynwald should be prescribed persons, 56% of the respondents agreed with the proposal that MHKs should be added to the list, while 49% agreed that Members of Tynwald should be added.

Respondents also suggested a number of other persons or bodies to take on the role of prescribed person.

The Department is grateful for the responses received from the consultation. The Department’s next steps are as follows.

Question 1 - Adding medical regulatory bodies to the list of prescribed persons

There was wide support for adding the UK medical regulatory bodies to the list of prescribed persons, and adding them to the list will reinforce the whistleblowing framework in the Isle of Man. The Department has been liaising with those regulators and with Manx Care to ensure that practical arrangements are put in place to support the regulators operating as prescribed persons for the Isle of Man.

Some of the responses questioned why the Nursing and Midwifery Council (NMC) was not on the list of the bodies to be added. The Department is currently working with the NMC and Manx Care to have NMC operate as a prescribed person in the Isle of Man.

Questions 2 and 3 – Adding MHKs/Tynwald members to the list of prescribed persons

Questions 2 and 3 sought views on adding either MHKs to the list of prescribed persons or adding all Tynwald members. Though a majority of the respondents supported adding MHKs and similarly adding Tynwald members, a number of issues were raised by Tynwald members themselves.

It is of particular importance to note that in response to the consultation the Tynwald Standards and Members Interests’ Committee published, in February 2024, a short report which considered the issues around MHKs or Tynwald members being prescribed persons. The report made no recommendation but it raised a number of issues in relation to MHKs/Tynwald members being specified as prescribed persons.

On the one hand, whistleblowing to Tynwald members may already qualify as a protected disclosure in some circumstances under section 55 and 56 of the Employment Act 2006. Individuals may be more likely to make a disclosure to a Tynwald member given their public status.

On the other hand the Department accepts that there are good reasons why MHKs/Tynwald members should not be prescribed persons. The feedback to the consultation, and the Tynwald report, set out some of those reasons. For instance, the Department considers that persons are normally prescribed as those to whom a whistleblowing disclosure should be made because those persons (or bodies) have existing powers to deal with a disclosure, and those persons are prescribed for those issues alone. For example, the Department for Enterprise is a prescribed person for the purposes of any disclosures about payment of the minimum wage because the Department has powers to investigate breaches of the minimum wage under the Minimum Wage Act 2001. In contrast there is no statutory framework which sets out how Tynwald members would deal with a whistleblowing disclosure, and Tynwald members have no statutory powers to deal with such disclosures. Practically speaking, it is likely that the only thing a Tynwald Member would be able to do would be to pass such a disclosure to another prescribed person that had specific powers to deal with the issue.

In addition, Tynwald members do not have the same office resources that MPs in the UK benefit from, and, given that many Tynwald members have roles within the Government, e.g. Ministers, Political Members or Board Members, Tynwald members may find themselves conflicted in dealing with protected disclosures.

For the reasons above the Department does not intend to add either MHKs or all Tynwald members to the list of prescribed persons, but will engage with the Clerk of Tynwald’s office to ensure that adequate guidance is made available to Tynwald Members in respect of Whistleblowing procedures.

Question 4 – Adding any other bodies to the list of prescribed persons

As previously stated, the Department will consider further the suggestions for bodies to be added to the current list and will bring forward an updated Order for approval by Tynwald in autumn 2024.

More information can be found in the review of responses document below.