Office of the Whistleblower Bill [HL]
Thursday 20th May 2021
(3 years, 6 months ago)
Lords ChamberRead Full debate Office of the Whistleblower Bill [HL] 2021-22 Read Hansard Text
Office of the Whistleblower Bill [HL]
Friday 25th June 2021
(3 years, 5 months ago)
Lords ChamberRead Full debate Office of the Whistleblower Bill [HL] 2021-22 Read Hansard Text Read Debate Ministerial Extracts
Baroness Kramer (LD)
My Lords, perhaps it would help to start this debate by explaining why I regard whistleblowers as crucial to a healthy society. To quote Stephen Kerr, the former Conservative MP and first chair of the APPG for Whistleblowing:
“Whistleblowers are the first line of defence against crime, corruption and cover ups.”
Indeed, the APPG’s first meeting coincided with breaking news of the Gosport War Memorial Hospital scandal, including stories describing how whistleblowers were ignored and silenced.
The scandals exposed by whistleblowers range from care homes, the NHS, policing, the Prison Service and transport projects to financial institutions—many of those, unfortunately—and many private companies. Research by the chartered institute of fraud has found that 42% of all internal fraud is identified by whistleblowers. But before anyone thinks all is well, the sad history of many scandals is that early warnings are ignored when they should be regarded as the canary in the mine and many whistleblowers pay such a personal price that others who want to speak out are deterred. That has to change. I see whistleblowers as a citizens’ army, not just exposing wrongdoing but significantly deterring it.
The first phase of the work of the APPG for Whistleblowing focused on providing a platform for whistleblowers to describe their experiences and recommend reforms. The lived experience of so many whistleblowers, shared in their testimonies, was a legacy of inaction and retaliation when they spoke out. This came with devastating professional and human consequences, with many seeing their lives turned upside down. Despite moves to increase the role of regulators and enforcement authorities, it remains the reality for so many whistleblowers. The APPG’s 2019 report outlined a 10-point plan to improve this situation, from a legal definition that includes all whistleblowers to proposing new ways to support individuals and protect them from retaliation. Crucially, it recommended the creation of an independent office of the whistleblower with real power to act.
In its second phase, the APPG has been talking to regulators. My assessment—the APPG has not yet concluded its work—is that most regulators regard their role in dealing with whistleblowers as very limited by law. Anyone who trawls through the various regulators’ websites will quickly find that the rules for each regulator not only differ but rarely meet the obvious expectations of whom they can hear and what they can do. This situation is confusing and chaotic, and must be improved. Every regulator will tell you how important whistleblowers are. I am sure the Minister will take the same view. I am here today because of the gap between these assertions and the reality facing those who become whistleblowers. Behind every new scandal is a legacy of vital early warnings being ignored and the whistleblowers who bravely put their heads over the parapet being left out to dry and overlooked.
I think we all agree that regulators work hard to try to ensure that the confidentiality of whistleblowers is protected, but we know that such protection often fails because the individual has already spoken internally or is one of a few privy to the necessary information. Regulators regard what most of us would call retaliation against a whistleblower as outside their jurisdiction; indeed, I have never heard of a regulator intervening in an employment tribunal case even though this is where most employees who speak out end up. Most regulators engage with whistleblowers through a call centre staffed by people trained to handle and pacify complaints, not experts capable of spotting wrongdoing. Some regulators act with alacrity. Others pay little attention to what they regard as complaints by troubled people. Interestingly, many of them greeted with sheer relief the idea of the office of the whistleblower to sort through this complex and difficult area, provide them with clarity, help whistleblowers with tailored support and help them as regulators to get on with their jobs. That is why it is important that we ensure that the office has sufficient powers to carry out this role effectively. I am particularly keen that it has the scope to examine, consult and act on knotty and difficult problems.
Who is a whistleblower? Surely it is not just a worker, as you would assume from current law. It could be a client, a supplier, a relative or a contractor, all of whom may need support and protection.
How do you deal with retaliation when it involves a real inequality of arms? It pits little people against well-funded organisations with access to the finest legal expertise and the patience to drag out a case for years. This week in the London central tribunal, as I drafted this speech, there were three whistleblowers that I know of in hearings whose current phase of litigation was costing from £24,000 for a preliminary hearing to £145,000 for a liability hearing—just a fraction of what their final legal costs will be. Dr Raj Mattu, a whistleblower who has permitted me to use his name, was a leading cardiologist fired after he exposed tragic levels of excess deaths at Coventry hospital. He spent £1.48 million clearing his name. When he was totally cleared, he was awarded £1.22 million; he still ended up facing huge bills. If the Minister says, “Well, this is the old world. It does not happen now”, I refer him to the case of Dr Beatt, which was resolved just a year ago. He was awarded £870,000; I do not yet have permission to tell people his costs but let me just say that the pattern is consistent. These costs are prohibitive and skew the system in favour of employers and organisations. We must level this playing field to enable more people to come forward.
How do we compensate whistleblowers whose professional life is effectively ruined by the informal blacklist that follows them for life? I got a lovely email from a whistleblower who has found his career reduced from senior professional jobs—on a par with, or even senior to, many of the people in this Chamber today—and who can now only find work driving a delivery van. How do we deal with confidentiality agreements, the UK equivalent of American non-disclosure agreements, which are part of nearly every settlement agreement and mean that both politicians and the public are in the dark about both the number of whistleblowers fighting to save their careers and what, if anything, has happened to counter the wrongdoing they have exposed? Is the Public Interest Disclosure Act 1998—the key piece of legislation—capable of revision, or does its place as a narrow subset of employment law mean that more overarching legislation is needed? The answer can be found through the work of an office of the whistleblower.
One objection always raised in opposition to creating an office of the whistleblower is the cost it would take to set up and run. To that I say this: the money lost through scandals and corruption far outweighs the cost it would take to run this office. But in pounds, shillings and pence, the financial penalties from one successful prosecution of financial abuse would pay for the office for years—a good example is the £45 million fine from the Lloyds Reading fraud case.
The current chair of the APPG on Whistleblowing, Mary Robinson MP, is very supportive of the Bill, and I thank WhistleblowersUK and Protect for their support. Many MPs are now exercised by the issue and, as we come out of the pandemic, whistleblowers will be crucial in addressing waste and fraud that has occurred in the Government’s Covid programmes. That is not an attack on the Government; it is making sure that people who took advantage of those programmes are identified and dealt with.
We need quick progress to ensure a proper and effective framework for whistleblowing so that corruption and fraud can be stopped in their tracks, while ensuring that those who speak out are protected and supported. I note that just two weeks ago Paul Scully MP, a Minister for BEIS, said:
“It is right and proper that we review the whistleblowing framework”.—[Official Report, Commons, 8/6/21; col. 846.]
An independent office of the whistleblower can drive and support the change we need and ensure that we build a better, fairer society for all. I beg to move.
The Earl of Erroll (CB)
My Lords, this is an important Bill which addresses an area that needs thoughtful sorting out. I agree with the points the noble Baroness, Lady Kramer, made. There is no point in me repeating any of them, but one I think is particularly important is the whole area of financial redress to whistleblowers. They cannot be left out of pocket and many of them without work. Their whistleblowing has harmed their employment and their future, and that is very serious.
I have two caveats about whether there should or should not be total anonymity. The French experience during the Second World War resulted in France not allowing anonymity for whistleblowers nowadays, because the quickest way of getting your neighbour’s property was to make an anonymous report to the Gestapo that they were members of the resistance, at which point they disappeared. We must always be careful of people using this mechanism incorrectly for their own business ends and that it does not become a weapon, but this is not to say that everything the noble Baroness, Lady Kramer, said about protecting whistleblowers was not right.
I also remember back to the 1980s, when I was in software development. If you lost a software developer to the opposition, the best thing was to get an Anton Piller order, at which point you walked in and seized all their files and records because you said there had been copyright infringement. That closed them down for at least a week and put them at a serious disadvantage. It was even better if you could actually follow up with a Mareva injunction—which we never did—because, with a bit of luck, they would go bankrupt. You have to be very careful about some of these things being used in that way.
One of my sons commented on the disturbing tendency that there is no longer the principle of innocent until proven guilty. You can now force people to resign, often from high-profile public positions, by an accusation that many years ago they behaved inappropriately by today’s exacting standards—and this resignation must happen immediately, before any examination of context, veracity or circumstances. Two consequential thoughts came to me from this. The first is that there must not automatically be an unquestioning belief that any blown whistle is true. You will get ones that are not, but it must be handled terribly carefully. The second is a bit broader than the Bill, but I thought I would slot it in here, and it is relevant to stuff that has happened recently in the news. Carelessly worded and overhasty tweets made by someone who is young should not be held against them for ever, especially once they have entered a more reflective and responsible area in their lives. We have a Rehabilitation of Offenders Act, which allows people to put their past behind them after a certain period and gives them a fresh start. We should do the same for all these people who have poorly presented pronouncements in the past which are perceived painfully.
Lord Sharkey (LD)
It is a pleasure to follow the noble Earl, and I congratulate my noble friend on securing this debate and on the compelling way she has presented her Bill. As she has demonstrated, there is a clear need to reform the way we deal with whistleblowing and I strongly support the reasonable and reasoned approach to reform proposed in this Bill.
As my noble friend Lady Kramer noted, two weeks ago, the Minister for BEIS, Paul Scully, acknowledged the need for review of the whistleblowing framework, but he qualified that by saying:
“we will do that once we have sufficient time to build the necessary evidence of the impact of the most recent reforms”.—[Official Report, Commons, 8/6/21; col. 846.]
The reforms he refers to took place in 2017 and were essentially confined to establishing the publication of annual incident reporting. That was four years ago—plenty of time to assess the impact of these relatively minor new requirements. I hope the Minister will not argue the need for more time or evidence. I hope he recognises both the need for rapid action and the merits of the approach proposed by the Bill.
Whistleblowers make a vital contribution to our national life, but they face enormous difficulties. Two of the most egregious cases are the attempt by Jes Staley, CEO of Barclays, to discover the identity of a whistleblower who made serious allegations against the bank; and the truly appalling treatment of Sally Masterton by Lloyds in connection with her exposure of criminal practices. The details of these cases make for grim reading about the shocking behaviour of very senior people in our banking sector. These and many other cases demonstrate the huge inequality of arms between the blowers and the blown upon. They demonstrate the fact of life-changing retaliation against whistleblowers, the feeble punishments meted out to transgressors or the ability of those responsible to avoid punishment altogether, and the moral and cultural failings of some of our largest institutions.
Abuse of whistleblowers is not confined to the financial sector. There are well-documented cases from within the NHS and the educational sector, for example. We all owe a debt to whistleblowers. They are crucial to uncovering malpractice and even sometimes saving people’s lives, as in the case of the NHS, and always help maintain the ethical standards, transparency, honesty and fair play that we require in all organisations, large and small.
But, as things stand, whistleblowers are horribly exposed. The legal protections available to them are wholly inadequate. There is no single source of help or advice. The Bill would remedy that by creating the office of the whistleblower as that source, with powers to review the whole framework. I hope the Minister will give a sympathetic and constructive response, as he usually does.
Baroness Altmann (Con)
My Lords, I too congratulate the noble Baroness, Lady Kramer, for her persistence in pursuing this important issue and for introducing this Bill. Offering guidance, protection and support for whistleblowers, with a central body that can co-ordinate across sectors—from care homes, to hospitals, to furlough fraud, to financial firms—is clearly an important aim.
The Employment Rights Act 1996 and the amendments in the Public Interest Disclosure Act 1998 are way out of date and leave significant lacunae. For example, they do not even cover entire groups, such as trustees, non-executive directors or the self-employed. There is no joined-up approach to protecting whistleblowers, and the Bill proposes establishing an umbrella body to co-ordinate across sectors, which clearly seems to be needed. Working internally, the whistleblowers are best placed to uncover wrongdoing, yet face monumental hurdles when they try to report issues that are clearly in the public interest.
The noble Baroness’s Bill proposes this new body to, for example, create a panel of accredited legal firms or advisers and a fund to support whistleblowers, as well as to ensure proper financial redress for those who are victimised for trying to do the right thing.
Whistleblowing is too often viewed negatively—some kind of betrayal of your employer, who is a potential wrongdoer—unlike compliance functions, which are accepted as necessary to protect the public. Unfortunately, as the noble Lord, Lord Sharkey, explained, the reforms in 2017 require bodies such as the Bank of England or the General Medical Council merely to produce a report on whistleblowers. That is clearly not sufficient to protect the whistleblowers themselves, who are battling through the courts to try to protect their own employment position, as the noble Baroness, Lady Kramer, described.
The USA has much stronger protections, and we are falling behind internationally. It recognises that whistleblowers are often important parts of stopping wrongdoing, but our regulators do not seem to be equipped, or take too long, to react to whistleblowing. They end up being years behind the wrongdoing. Meanwhile, the offences continue and the whistleblower is still fighting through the courts for redress.
Who might fund this office? That is an important issue, but I would be grateful if my noble friend could indicate any support for the Bill.
Lord Hendy (Lab)
My Lords, I too congratulate the noble Baroness, Lady Kramer, on introducing this Bill. She and the noble Baroness, Lady Altmann, who it is a pleasure to follow, are right to highlight that fundamental change to the legal framework for whistleblowing is necessary.
Having represented whistleblowers—indeed, the noble Baroness, Lady Kramer, mentioned one of my cases in her opening speech—and had the benefit of discussions with leading experts in the Institute of Employment Rights and with my friend Professor David Lewis of Middlesex University, I suggest the following eight points for consideration in the consultation that the Bill proposes.
First, there should be a statutory right to speak out and no civil or criminal liability for doing so within the legal confines of what whistleblowing is.
Secondly, all workers, including the police, armed services and security services, should have the protection of whistleblowing. Of course, it is understood that publication on matters of state security must be protected.
Thirdly, “reasonable belief” as a qualifier for public interest disclosure should be replaced by “reasonable suspicion” on the part of the worker, as proposed by Dame Janet Smith in the Shipman Inquiry.
Fourthly, trade unions have a role to play. A full-time trade union officer should be able to certify a protected disclosure and should be a legitimate recipient of a whistleblowing disclosure. Trade unions should have the right to bring proceedings on behalf of whistleblowers in the name of the trade union.
Fifthly, the list of wrongdoing already in the legislation should also include gross mismanagement or maladministration.
Sixthly, we should remove the public interest test and substitute for it a protected disclosure of a specified type of wrongdoing, as listed in the legislation, made to an appropriate recipient, including the office of the whistleblower.
Seventhly, measures to preserve the confidentiality of the disclosure and the whistleblower are needed. Measures are of course required to protect against reprisals against whistleblowers. The burden of proof should be on the employer.
Eighthly, there should be a statutory code of practice for workers and employers, which should extend to the procedure for whistleblowing, communication of a whistleblowing claim, confidentiality and anonymity, protection against reprisal, investigation and its timescale, feedback, hotlines, training and so on. The Bill from the noble Baroness, Lady Kramer, is a great start.
Lord Mackenzie of Framwellgate (Non-Afl) [V]
My Lords, I, too, welcome the Bill and congratulate the noble Baroness, Lady Kramer. I shall be brief.
Whistleblowing has a very important place in workplace safety and the well-being of business and its employees. Because of that, it needs to be encouraged and nurtured. When I joined your Lordships’ House 23 years ago, I was invited to join a company called Safecall, based in the north-east, which provided an independent means of reporting wrongdoing in or by organisations.
Having been a detective in Durham for a number of years, I had come to value the importance of citizens whistleblowing, or informing, to the police. This also provides a service for the public good in protecting citizens and detecting crime. A good informant needs protecting, and we now have witness protection programmes for this purpose, whereby anonymity is sometimes guaranteed.
Your Lordships will recall the TV drama “Line of Duty”, where one of the strange acronyms was the term CHIS—a covert human resource, also known as an informant. These sources of information are essential in policing, are often rewarded and need to be regulated and protected. So whistleblowing is not a new phenomenon: it occurs in all areas of society and needs regulating and protecting where it is in the public interest. The Bill of the noble Baroness, Lady Kramer, does just that and establishes the office of the whistleblower, which would provide directions and administration of arrangements to facilitate whistleblowing.
The present position is piecemeal, and this is a long overdue measure which, had it been in place, might well have prevented the debacle at the BBC, where the very person who blew the whistle on the activities of Martin Bashir in forging bank statements to obtain an interview with Princess Diana was himself dismissed and his career as a graphic artist ruined. Whistleblowing is a public good which can prevent mischief at source. It can protect reputations, livelihoods and lives. It is our duty to give it our support, and I commend the Bill to the House.
Baroness Featherstone (LD) [V]
My Lords, congratulations to my noble friend Lady Kramer on bringing this super-important, much needed Bill to the House.
Whistleblowers have for so long paid a price for their bravery in bringing to attention that which organisations, institutions or Governments want kept secret. Take your pick—the Catholic Church, the NHS, the Government, the banks, the BBC and more, all of whose reputations the powers that be judged far more important than those put in jeopardy by their refusal to hear and act on what they were being told. More often than not, those institutions shoot the messenger, those who warn of peril, rather than expose their own weaknesses or wrongdoing. It is immoral.
One brave whistleblower, Kim Holt, at that time under a gagging order and on two-years’ so-called gardening leave, came to me as her MP. She was one of four senior consultant paediatricians in the Haringey child protection team. Many of your Lordships will have heard of the Baby P case, in which baby Peter Connelly tragically died. Of course, it was his family who actually killed him, but it was the cover-up by the institutions that failed to listen to all the warnings given about what was happening in the departments charged with his care that failed him.
Great Ormond Street Hospital was the worst, and it was in charge of the clinic. The four senior consultant paediatricians there, including Dr Holt, jointly signed a letter to Great Ormond Street Hospital management, saying that they were extremely worried about the terrible processes in the department that meant children were being put in danger. I worked with Tim Donovan of BBC London, and we discovered that Great Ormond Street Hospital commissioned an independent report on the role of the paediatric health team run by Great Ormond Street. It was called the Sibert/Hodes report, and its findings were damning, exposing the danger and the responsibility thereof. Despite the report pinning the failures accurately, it never saw the light of day. Great Ormond Street suppressed the original version that contained the truth and published a summary omitting all the points detrimental to Great Ormond Street.
After I had fought for justice for my constituent Kim Holt for over three years, Great Ormond Street finally apologised—too little, far too late. Kim Holt was persecuted by Great Ormond Street for speaking up for the safety of children. Richard Horton, in a signed editorial in the Lancet, wrote:
“When the highly critical Sibert/Hodes Report landed on the desks of GOSH’s managers, they clearly faced a difficult dilemma. If they made the findings public, the inevitable media scrutiny might have damaged their reputation and slowed the progress of their Foundation Trust application. If they edited out GOSH’s failings, they might leave themselves open to the claim of ‘cover up’”.
They did edit out Great Ormond Street’s failings and they did cover it up. Kim Holt was just another victim of “too big to fail” but the real victim was patient safety. The need for the independent office of the whistleblower is clear. I ask your Lordships to please support this excellent Bill.
Lord Sikka (Lab) [V]
My Lords, I congratulate the noble Baroness, Lady Kramer, on this much needed Bill, which I fully support. Whistleblowers take enormous personal risks to protect society from harmful practices, but they receive little support from within the organisation or from industry regulators, which are all too often inclined to silence individuals. Whistleblowers and their families pay a heavy price for exposing wrongdoings and their reward is often insecurity and early death.
The issues become evident whenever anyone looks at the life histories of whistleblowers. One such person was Paul Moore, head of group regulatory risk at HBOS. His revelations foreshadowed the follies exposed by the 2007-08 banking crash. In 2004, he reported reckless risk-taking through unsustainable lending and the sale of dubious financial products, such as payment protection insurance, to the HBOS chief executive. Paul was fired for reporting this. His complaint was put to HBOS’s auditor, KPMG, which is hired and paid by directors, and which inevitably sided with the board. As Paul’s role was senior, his sacking was investigated by the Financial Services Authority, which also sided with the HBOS board. Then came the 2007-08 crash and HBOS became the subject of a £21 billion bailout.
Despite being proved right, Paul paid a heavy price for his principled position. Headhunters ignored him and he never worked in banking again. He had to cope with bouts of depression and ill health. He died last October at the age of 61. Had the board and regulators heeded his warnings, HBOS would potentially not have failed so spectacularly. In fact, HBOS was so aggressive about its lending that it created a race to the bottom for the lending market and increased the risk in the system. The true cost of its recklessness will never be known. Paul’s case shows that employers and current regulatory bodies are conflicted and cannot support or protect whistleblowers. The current legal framework also failed to support and protect Paul. We need an independent office of the whistleblower, as the Bill proposes. I very much hope that the Government will support the Bill.
Lord Berkeley of Knighton (CB) [V]
My Lords, I welcome the setting up of a body to encourage and protect people brave enough to point out things that we all need to know, but until today I was not entirely sure whether the proposed office was the right way, hence I listened and learned.
I was very swayed by the noble Baroness, Lady Kramer. Whistleblowers save lives, often at their own peril. Unfortunately, the very word “whistleblower” has connotations of betrayal, which we must try to diminish. Yet, as the noble Baroness said in her powerful and convincing opening speech, it is not only in companies and private organisations that the blame game exists. With the police, the BBC and the NHS, we see examples of whistleblowers being pilloried and, in the Princess Diana interview scandal mentioned by the noble Lord, Lord Mackenzie, the wrong man being dismissed while the real villain was later given a new job.
I do not expect the Minister to agree with everything I am about to say, but surely an important example needs to be set by those holding the highest offices in the land, instead of which there seems to be a more determined effort than ever to ride out scandals, simply ignore wide calls for resignations and tough it out. This is relevant because it undermines the principle of accountability. It is not all about resignation, because so often a timely apology and an acknowledgement of error leads to a close of criticism. If you say, “I’m sorry, I got it wrong”, there is often not much more to say. The failure to recognise and admit error crosses political allegiance, but I currently see an extension of what is, after all, with the greatest respect, arrogance in attempts to bypass parliamentary scrutiny by using secondary legislation. We are all made up of our qualities and our failings, and if this new office can lead to a greater recognition of this and encouragement to those who bravely put their head above the parapet, it will be doing us all a great service.
Baroness Chakrabarti (Lab) [V]
My Lords, I have no current relevant interest, but I speak as a former government lawyer and a long-serving director of Liberty. I have advised Ministers on breaches of, for example, official secrets and represented whistleblowers who have exposed serious wrongdoing in their workplaces at great personal cost and even greater risk.
I join the chorus of congratulations to the noble Baroness, Lady Kramer, on her important and timely Bill. In the press just this morning Zelda Perkins, a former assistant to Harvey Weinstein, calls on Her Majesty’s Government to ratify ILO convention 190 on violence and harassment at work. I hope the Minister will take the opportunity while summing up to respond directly to her request.
However, there are many other forms of very bad practice which would justify public interest disclosure. Like other employment legislation, our whistleblowing laws lack sufficient accessibility and effective enforcement mechanisms, not least now that our civil legal aid system has been completely obliterated. On the one hand, organisations are entitled to expect a reasonable relationship of trust and confidence with their workforce and many others, as we have heard—even more so in the most sensitive areas—but on the other there is considerable public interest in serious bad practice up to and including illegality being exposed from within. How on earth can we expect vulnerable individuals to walk this ethical and legal minefield and face the dangers of discipline, dismissal, blacklisting and, in some cases, even prosecution without the kind of help that a body such as that proposed by the noble Baroness, Lady Kramer, would offer? Every day we see new evidence that institutions—whether commercial, media or banking empires, government departments and even, tragically, as the noble Baroness, Lady O’Loan, recently uncovered, the Metropolitan Police—simply cannot be trusted to police themselves. Their internal mechanisms for advising whistleblowers are, perhaps inevitably, wholly inadequate. The noble Baroness, Lady Kramer, proposes a way through. I hope that the Government are listening.
Baroness Ludford (LD)
My Lords, I warmly welcome my noble friend’s Bill and her excellent introduction of it. This Second Reading is well timed for two reasons: first, because it comes just after World Whistleblowers Day on 23 June, which was initiated by Transparency International, which it says is
“an occasion for us to celebrate the courageous individuals who come forward to report corruption”;
and, secondly, because it comes in the week following the publication of the report on the failings in the case of the murdered Daniel Morgan.
Apparently, but sadly ironically, the notion of drawing attention to wrongdoing by blowing the whistle originates from the Metropolitan Police force, which in February 1884 issued 21,000 whistles—the mobile phone of the 19th century. I learned this and many other things from the All-Party Parliamentary Group on Whistleblowing, which I warmly thank for its work and especially for its reports, on which I am able to draw.
The statement by the panel of the Daniel Morgan report issued by the noble Baroness, Lady O’Loan, said memorably:
“We received evidence from serving and retired officers that in some circumstances, police officers who have sought to report wrongdoing by other police officers have been ostracised, transferred to a different unit, encouraged to resign, or have faced disciplinary proceedings. This is not conducive to a culture of integrity … We believe that concealing or denying failings for the sake of an organisation’s public image is dishonesty on the part of the organisation for reputational benefit and constitutes a form of institutional corruption.”
My first point is therefore about the huge value to society of whistleblowers and the harm caused by the failure to listen to them. Whistleblowers are the single most cost-effective and important means of identifying and addressing wrongdoing that affects the life and security of our citizens. My second point is that you would not know of that value from the way that whistleblowers are treated. They are often treated in an appalling and unlawful way despite the fact that by doing the right thing they risk everything to protect others, and my noble friend has enumerated these problems. In fact the whistleblower should be the best friend of the CEO—an essential mechanism for promoting a culture of openness, integrity and accountability and hence for winning the trust of the public, which is vital to effectiveness. That is what was so disappointing in the behaviour of the Met Commissioner.
We need a change not only in the culture and perception of whistleblowers but in the law. One of the most pernicious features of the present situation is, as two of my noble friends have mentioned, the gross inequality of arms between whistleblowers and employers. It is time for a radical overhaul to provide legislation that supports our citizens in the 21st century. The Bill is a valuable step in that direction and I fully support it.
Lord Berkeley (Lab) [V]
My Lords, I too fully support the Bill and congratulate the noble Baroness, Lady Kramer. Noble Lords who have spoken have given many examples of whistleblowing, but the one that has not so far been mentioned is of course the Post Office postmasters. They have suffered as much as anyone, and the noble Lord, Lord Arbuthnot, has been pursuing their cause for years. It is one example where the people in charge get promotions while the people who have suffered lose their careers and pensions, have to spend sometimes millions on fighting, and have family breakdowns and even one or two suicides.
I want to speak briefly about HS2 whistleblowers—yet another case that is sadly still ongoing. People do not whistleblow just for fun. Often they do it because they sincerely believe that what is being done by their bosses, colleagues, government or others is professionally, ethically or morally wrong, as my noble friend Lady Chakrabarti has just told us. One example briefly referred to by the noble Baroness, Lady Kramer, is a friend of mine, Douglas Thornton, a highly qualified professional property and land valuer who was commissioned by HS2 to value all the properties that it would have to buy. He and his colleagues very professionally produced a schedule of everything, which unfortunately showed that HS2’s budget was about half what it should have been.
Rather than the management accepting this, they sacked them and kicked them out of the office, and this is still a problem today because there is not enough money to buy the land or the properties. It is part of the reason why the cost estimates for HS2 are still in the clouds, frankly, with no real back-up or anything else. I have lots of evidence, because Ministers over the years, the Permanent Secretaries and the chief executives of HS2 have either told what I would call lies or misled Parliament by hiding that they knew the true costs. One HS2 employee actually gave evidence to a Select Committee, saying, “If we told Parliament the true cost, they would never give approval.” Where is Parliament on this, keeping an eye on it?
This Bill provides the opportunity to provide much more support for whistleblowers. It needs independence, power, finance and, most of all, the strongest political support by Parliament against an overpowering Administration.
Baroness Walmsley (LD) [V]
My Lords, I am delighted to support the Bill and I declare my membership of the APPG for Whistleblowing.
Change in organisations is most effectively implemented if it has support from the bottom up, but if workers are not encouraged to suggest better ways of doing things, and even penalised when they report problems or wrongdoings, things will never get better. Therefore, it is in the best interests of every organisation to encourage reporting of concerns and have in place effective systems to put things right.
Unfortunately, the experience of whistleblowers, as we have heard, varies across employers. Some have systems that recognise the benefit of an open and learning approach. Too many others are closed and secretive, believing they are protecting their good name, but in fact doing themselves harm when the truth eventually comes out, as my noble friend Lady Featherstone has just demonstrated. Some people do not know where to report issues; others know very well, but fear for their career if they speak out, so remain silent. They may have heard of other whistleblowers whose cases have dragged on for years, who have been discriminated against and had enormous costs and mental stress, as we have heard today. This is why we need a body whose duty it is to improve the system.
I support the power for the new office of the whistleblower to consult on a review of the Public Interest Disclosure Act 1998 and recommend changes. In the past two decades, the pattern of work has changed. PIDA does not protect self-employed contractors, non-executive directors, trustees, volunteers, interns and most job applicants. If they want to pursue a case, they have to go to court at great expense and stress. They take a serious risk, as court findings are often inconsistent, so the current legal framework needs to be reviewed. For example, currently there are no obligations on employers or regulators to handle disclosures in a way that protects whistleblowers and results in a meaningful investigation.
I have long been an advocate of mandatory reporting of child abuse. There are many parallels between this and adult whistleblowers. What children who report abuse want is for the abuse to stop. Imagine how a child who makes such a disclosure feels when the information is not passed on and nothing is done. The same applies to adult whistleblowers. Like the abused child, they only want it to stop. A new office of the whistleblower would contribute to ensuring that it stopped. I have often been told that you cannot mandate the reporting of child abuse in case you uncover more abuse than the system can cope with. My answer to that is that whenever you lift up a stone, you usually find something nasty underneath, and if you are afraid to lift up stones, there is something wrong with the systems to deal with the nasties you uncover. I support my noble friend’s attempt to improve the system of lifting up stones and dealing with the nasties underneath.
Baroness Masham of Ilton (CB) [V]
My Lords, I thank the noble Baroness, Lady Kramer, for bringing this whistleblowing Bill before the House to give more guidance and support to whistleblowers.
In the House of Lords, on 7 November 2011, I moved an amendment to the then Health and Social Care Bill on the duty of candour. It was about a duty to ensure honesty and transparency and the need for such legislation. This was made clear when the Healthcare Commission published its report in 2009, which revealed serious failures in care at the Mid Staffordshire hospital. There was a major cover-up in the hospital trust, which wanted to have foundation status. I will always be full of admiration for the patients and their relatives who battled to get recognition of the disaster of losing so many loved ones in such distressing circumstances. At that time, the noble Lord, Lord Harris of Haringey, shared this quote:
“To err is human, to cover up is unforgiveable”.—[Official Report, 7/11/11; col. 47.]
Wrongdoing can happen not only in the health service but in prisons, the police, schools, the workplace and the environment—everywhere. It is important to get genuine whistleblowing as satisfactory as possible and make support available to those who need it.
The noble Baroness, Lady Kramer, said that the current system is unsatisfactory for many whistleblowers, and the Government have said that having two whistleblowing organisations would be confusing. Could the solution be to amalgamate the Public Interest Disclosure Act and the Office of the Whistleblower Bill? Would this help to fill the gap and get all interested people working together across the country to try to solve these challenging incidents? We should all be working for the good of the country and the people who need us.
Lord Hunt of Kings Heath (Lab) [V]
My Lords, as the Bill touches on regulators, I must declare an interest as a board member of the General Medical Council.
I strongly welcome this Bill. I found the arguments of the noble Baroness, Lady Kramer, compelling. Few can be confident in the way in which many organisations handle whistleblowing. There are huge gaps, there is a lack of consistency and there is often confusion. Too many whistleblowers suffer retaliation and find their careers at an end. Often, their only recourse is to an employment tribunal, which can drag on for years and deplete their financial resources. We know that informal job blacklisting is common. Some regulators follow up on information vigorously, but some still treat whistleblowing as complaints from troublesome people.
The recent APPG report on whistleblowing, published in July 2020, described the UK’s whistleblowing law as demonstrating “fundamental inadequacies”. Some of its findings were striking. First, it states:
“Whistleblowers suffer more and longer than before. In 2018, nearly 40% of whistleblowers report going on sick leave, an increase of 15% since 2015.”
It goes on:
“Legal support matters for whistleblowers but less whistleblowers than before have access to legal representation … More whistleblowers self-represent than get legal representation. In contrast, employers secure more expert legal representation than ever before.”
It continues:
“Compared to male whistleblowers, female whistleblowers are … more likely to report health issues … less likely to have legal representation … even when the judge upholds the protected disclosures, they are less likely to see their unfair dismissal claim upheld”.
The proposed office of the whistleblower would help to end the fragmented approach to these problems, sort out the often complex issues of how best to protect and support whistleblowers, and give a safe point of contact for whistleblowers that can be clearly known and understood.
Of course, there are issues to be teased out in Committee. The whistleblowing organisation Protect has argued that little detail is provided about the expectations on employers and regulators when handling whistleblower disclosures. It feels that the Bill could be improved if it included specific legal obligations on both employers and regulators. I would be interested in the views of the noble Baroness, Lady Kramer, on this.
Overall, I welcome this Bill. In the past, the Government have argued that establishing an office would duplicate the role of existing regulators. I am not persuaded by that. It is clear that the system is not working half as well as it ought. I very much hope that the Government will change their mind.
Baroness Bowles of Berkhamsted (LD) [V]
My Lords, it is a privilege to commence the winding up on this Second Reading of a Bill that has cross-party support. It proposes an office of the whistleblower, as recommended by the all-party group in its report. I congratulate my noble friend Lady Kramer, who has been a stalwart in this area for a long time. Mary Robinson, chair of the APPG, says in her foreword on its website that
“my personal interest in whistleblowing rests in my experience as a constituency MP where I am confronted with whistleblowers who have turned to me as a last resort.”
Many of us share that experience, and the heartbreak when we see the plight that befalls whistleblowers, as my noble friend Lady Kramer and other noble Lords have laid out. This Bill is needed.
Let us make no mistake: it is bad enough that whistleblowing is so often ignored and that harm continues to happen, but it is even worse that whistleblowers are victimised, cover-ups are increasing and millions, including public money, are spent on deliberately ruining the lives of people trying to serve the public interest. Seemingly, it can go on and on like that with impunity. It is not working in our regulators or in individual businesses; maybe it never will, because there are always vested interests and—including among regulators —perceived bigger issues, even if that “bigger issue” analysis is wrong.
My noble friend Lady Featherstone elaborated on the bigger issue example of Great Ormond Street Hospital, and my noble friend Lord Sharkey noted that Barclays CEO Jes Staley hired investigators to try to identify a whistleblower. He was fined mere pocket money by the FCA. Not only did that undermine the new senior managers and certification regime, but I have had discussions, including with people in the regulatory sphere, where the FCA has been defended on the grounds that “financial stability was more important” and you could not sack the boss of a big bank. That type of attitude is perhaps the most damaging systemic risk there is, and it is embedded throughout the public and private sectors. I cannot express my revulsion more that our beloved NHS has repeatedly spent huge amounts of money that should go on treatments to victimise and destroy people who sought only to make things better.
The APPG for Whistleblowing has brought out two great reports. The first summarises in its strapline just what I have said: The Personal Cost of Doing the Right Thing and the Cost to Society of Ignoring it. The second investigated how the system of employment tribunals is not working in favour of whistleblowers, who are outgunned in spending, frankly as a deliberate strategy.
The law is not working. It took a judge to challenge the narrow definition of an employee, and who should be covered, right up to the Supreme Court. If we really want to get the benefits to society that whistleblowers aim to deliver, we must take them seriously. The creation of an office of the whistleblower would do just that: where the call can be received by specialists, where the first response is not to question what powers a regulator might have to act, and where the right kind of advice can be given to whistleblowers concerning information, including how not to fall into traps that will subsequently lead to legalistic unpicking.
The companies and organisations on which the whistle is blown have all that legal paraphernalia at their fingertips; it is only right that the whistleblower should too. The beneficiary is the public good. We should not put a price on that, but as my noble friend has pointed out, the cost is likely to be covered by fines and prevention of the harms that so often fall on the public purse.
This is a simple and enabling Bill, and there have been great speeches supporting it today. I hope that the Minister has noted them and that he can come with good news, because this Bill is supported by research and evidence from the APPG, and it is so much more than a just a good idea.
Lord Bassam of Brighton (Lab) [V]
My Lords, I start, as others have, by heartily congratulating the noble Baroness, Lady Kramer, not only on bringing the Bill forward but on her years of tireless campaigning on the issue, which I hope will come to fruition.
Like others, I have done a bit of whistleblowing, so I understand from personal experience just how perilous an activity it can become, not least for people’s employment status. As we have heard, we need whistleblowers across our country to keep businesses, public activities, government and corporations clean and straight, and to avert the tragedies that may result from internal cultures of denial when things go wrong.
When people come forward they do not do so for money or fame; it is often in spite of the impact on their career or family. They do so because they believe that they are doing the right thing and that the public have a right to know. There are many examples where whistleblowing could have made a real difference: Grenfell, Carillion and Boeing 737 MAX, just to name a few. In some cases, one person’s actions could save hundreds of lives.
We know that our current legislation, the Public Interest Disclosure Act 1998, is not adequate, but it was good at the time to ensure that whistleblowers got the protection and support that they needed. It dissolves down into employment tribunals, where individuals must face their employer, with relevant individuals, such as trustees, trainees and volunteers, being excluded from the law and regulators being unaccountable for the way they treat whistleblowers, who do not even get legal aid and must personally pay their legal fees.
Ultimately, there are no official standards for whistleblowing that employers must meet or recognised procedures for them to follow. This can have a serious impact on how quickly whistleblower reports are accessed. For example, only this month it was revealed that the FCA was still assessing 316 reports from 2019 and 630 from 2020. Does the Minister think that this is right and acceptable? How timely should companies and regulators be when reviewing whistleblower reports? Clearly, things need to change, as we have heard today from speakers right across the House.
However, sadly, it seems to me and others that the Government do not take this as a priority. As others have said, the most recently introduced change was back in 2017: a new legislative requirement for most prescribed persons to produce an annual report on whistleblowing disclosures made to them by workers and employees. Earlier this year, the Government said that they
“recognise how valuable it is that whistleblowers are prepared to shine a light on wrongdoing and believe that they should be able to do so without fear of recriminations.”—[Official Report, Commons, 8/6/21; col. 846.]
They are quite right. Ministers say that they remain committed to
“reviewing the UK whistleblowing framework and will carry this out once sufficient time has passed for there to be the necessary evidence available to assess the impact of the most recent reforms.”
They say that
“The scope and timing of such a review will be confirmed in due course.”
However, we are no further forward in hearing more about when the review will start, how long it will last and what will become of any recommendations. What does “sufficient time” mean, and what evidence are the Government seeking to collect? How much evidence do they need before they can “assess the impact”? I hope that the Minister can fill in these blanks.
I turn to the Bill. The idea of the office of the whistleblower is certainly interesting, and we welcome the opportunity to debate it. As the noble Baroness, Lady Kramer, clearly explained, it requires the Government to establish an office of the whistleblower, which would be responsible for the administration arrangements to facilitate whistleblowing. It would have several powers, including giving direction to the monitoring of activities of relevant bodies on issues such as confidentiality and the use of disclosed information; consulting on amending or replacing UK whistleblowing legislation; being a point of contact for individuals who wish to disclose information about wrongdoing; and maintaining a fund to support whistleblowers—all things that are clearly essential. It seeks also to offer the protection and support for whistleblowers that is currently missing.
It would be helpful to hear the following from the Minister. What concerns does he have about a dedicated office? How can this protection and support be offered without a specific office? If his concerns are financial, how much does he expect the office to cost? The Labour Party has also suggested giving protected status to whistleblowers and imposing a statutory duty on employers to prevent victimisation. I thought that the noble Lord, Lord Hendy, made a really powerful argument for that, and the importance of having a statutory code of practice. Does the Minister support such proposals, so that we can prevent discrimination against victimisation?
In conclusion, whistleblowers play an important role in protecting the public and consumers, and they could do much more with protection. They can ensure that businesses and services operate more effectively and efficiently and stop serious incidents from occurring. We need to ensure that they receive the right and proper support. To do that, action is needed, and I look forward to hearing what the Minister proposes in his response. This is too important to be left for long, and I should like to see legislation brought forward as a matter of urgency, if the Government are not prepared to support the Bill proposed by the noble Baroness, Lady Kramer, which has so much going for it and many merits.
The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con)
My Lords, I start by joining virtually every other speaker in the debate in offering my congratulations to the noble Baroness, Lady Kramer, on securing a Second Reading for her Private Member’s Bill. She has spoken passionately today, as she has on a number of previous occasions, about the experiences of whistleblowers, in advocating the need for reform. I thank all other noble Lords who have contributed to this important debate. As the noble Lord, Lord Sharkey, pointed out, the work of whistleblowers is invaluable, and there should be no doubt that this Government value the important work that whistleblowers do when they speak up to shine a light on cases of wrongdoing.
Before I turn to the contents of the Bill, I say in response to the noble Baroness, Lady Chakrabarti, that this Government take the issue of sexual harassment in the workplace extremely seriously. Our strategy on violence against women and girls will be released later this year.
I turn now to address the contents of the Bill, which seeks to establish a new office of the whistleblower. First, the office would have the power to give direction to and monitor relevant authorities in their investigations. I understand that the intent is to provide consistency in standards for regulatory investigations triggered by whistleblowing information. My concern is that this duplicates the role of the existing prescribed persons, and at some considerable cost. The Government believe that it is the regulator that has the best understanding of its sector. Prescribed persons have been given this legal status because of their ability to take action in respect of a disclosure made to them; many have extensive knowledge and understanding of the subject matter and, in some cases, regulatory oversight of that sector. An overarching body would be pressed to meet this level of specialist expertise. With around 35,000 whistleblowing disclosures made to named prescribed persons in 2018-19, should the new body have these functions, it would require significant staffing resources, with diverse expertise across all sectors, to enable it to carry out these functions effectively.
Secondly, the office would consult on amending or replacing the Public Interest Disclosure Act 1998 and the Public Interest Disclosure (Northern Ireland) Order 1998. The Government welcome feedback and comments on the UK whistleblowing framework. In 2013, we published a call for evidence on the whistleblowing framework, seeking views on ways that it could be made more effective. We have since implemented the action plan from this review. The Government have been clear that we will conduct a further review of the whistleblowing framework when the time is right, and when the more recent reforms, which date from 2017, as the noble Baroness, Lady Kramer, pointed out, have had time to take effect.
It is also important to acknowledge that employment law is devolved in Northern Ireland. To all intents and purposes, these matters are aligned, as Northern Ireland has similar legislation in place to protect whistleblowers; however, we need be mindful of the extent of our remit.
Thirdly, the office would act as a point of contact for whistleblowers, and provide legal and financial assistance. It is the Government’s position that whistleblowers already have a range of channels available to them to get advice on whistleblowing. Comprehensive government guidance is available on GOV.UK. Whistleblowers can also contact ACAS, which deals with questions from employers and employees about a wide range of employment relations matters, including whistleblowing. As the noble Lord, Lord Hendy, pointed out, whistleblowers may also approach their trade union, prescribed person or one of the organisations specialising in whistleblower support, such as Protect or WhistleblowersUK.
Fourthly, the office would provide financial redress to individuals whose disclosure is deemed by the office to have harmed their employment, reputation or career. The current framework under the Public Interest Disclosure Act allows a whistleblower to take action against their employer or former employer at an employment tribunal. This recognises that it is the employer’s responsibility, as an organisation, to support whistleblowers at work. There is no cap on the compensation that employment tribunals can award to whistleblowers. This is designed to be a powerful deterrent to poor employers and to reflect the potential career-ending nature of whistleblowing. Making the office of the whistleblower responsible for financial compensation may break these vital links and introduce a lot of complexity into the enforcement landscape. I believe that is it right that the framework seeks to ensure that organisations are held accountable for the behaviour of their staff and the culture that they create.
I thank the noble Baroness for bringing the Bill to the House and for enabling this important debate. I have not been convinced that the Bill is the right solution to the matters that have been raised, but the Government will continue to monitor the situation and to make improvements where needed, as we have done over the past decade.
Baroness Kramer (LD)
My Lords, it has been a superb debate. I will be exceedingly brief and will not repeat the many arguments, examples and illustrations from all around the House in support of an office of the whistleblower. I just say that I am rather sad at the Government’s response, because the fundamental core of our argument is that all the assertions of what takes place and the lived reality of what takes place are two entirely different experiences. We need something such as the office of the whistleblower to ensure that the gap is bridged. I appreciate the opportunity to exercise and discuss these key issues today and, as a consequence, I beg to move.