Whistleblowing at Work
Lord Wills
To ask Her Majesty’s Government whether they will implement the recommendations of the Commission established by Public Concern at Work on Whistleblowing.
Lord Wills (Lab)
My Lords, 100 years ago, the great American, Justice Louis Brandeis, said that electric light is the best policeman. The merits of transparency have long been recognised, and so too has it long been recognised that whistleblowing—making a disclosure in the public interest—is crucial to the promotion of transparency in public organisations. Almost 20 years ago, the Nolan committee said:
“All organisations face the risks of things going wrong or of unknowingly harbouring malpractice. Part of the duty of identifying such a situation and taking remedial action may lie with the regulatory or funding body. But the regulator is usually in the role of detective; determining responsibility after the crime has been discovered. Encouraging a culture of openness within an organisation will help: prevention is better than cure. Yet it is striking that in the few cases where things have gone badly wrong in local public spending bodies, it has frequently been the tip-off to the press or the local Member of Parliament—sometimes anonymous, sometimes not—which has prompted the regulators into action”.
We have seen the value of whistleblowers demonstrated over and over again, most recently in the revelation of scandals in the NHS. The Government recognise this and the Prime Minister has said:
“We will always back whistleblowers when they challenge poor standards, particularly in large organisations”.—[Official Report, Commons, 26/2/14; col. 257.]
He has also said that,
“we should support whistleblowers and what they do to help improve the provision of public services”.—[Official Report, Commons, 24/4/13; col. 882.]
And yet we are still some way away from a situation in which whistleblowers are adequately protected, and we are still further from the creation of a comprehensive culture in public institutions in which whistleblowing is encouraged.
Whistleblowing reveals wrongdoing in great public institutions and those carrying out functions in the public interest, but such institutions are always powerful, usually driven by a potent internal culture, and often inward-looking. Every case of whistleblowing challenges the powerful vested interests that run such institutions. After every scandal is revealed, after the abuses have been tackled and the guilty punished, and after the fine words about whistleblowers have been spoken, it is all too easy for those dominant interests to revert to carrying on much as they did before. The powerful never like being challenged.
The inward-looking culture that dominates so many of our great public institutions discourages whistleblowing. Repeated failures within the NHS have highlighted not only how important whistleblowers can be in protecting the public, but also how very difficult they find it if they try to expose incompetence and wrongdoing. These problems are not confined to the NHS. For all the police wrongdoing after the Hillsborough disaster that has now been exposed, for 20 years no one blew the whistle. No one blew the whistle on the scandal of MPs’ expenses, even though the Fees Office was well aware of the scams that were going on. There is clearly a need to do more to encourage and protect whistleblowers. Just this month, the National Audit Office made a series of recommendations for improvements, including the creation of a strategic lead within central government, a series of clarifications, and more effective communication of existing arrangements and protections. I hope that the Minister will consider those recommendations carefully.
The Public Interest Disclosure Act 1998 was a landmark piece of legislation providing statutory protection for whistleblowers, but it is now nearly 15 years old and it has never been reviewed officially. But the whistleblowing commission set up by Public Concern at Work and chaired by a retired Court of Appeal judge, Sir Anthony Hooper, has done so. Following a public consultation and research produced by Public Concern at Work, Ernst & Young and the University of Greenwich, the commission has made a number of recommendations aimed at changing culture and extending, simplifying and improving the processes for delivering protections for whistleblowers. If we are to give whistleblowers the protection they need, the Government need to address these recommendations and, if they are not willing to adopt them, at least give the reasons why.
I would be grateful if the Minister could give his response to the following key recommendations made by the commission. To help change workplace culture, the commission has recommended the introduction of a code of practice on whistleblowing that would set out best practice for employers, workers and whistleblowers. Similar to ACAS codes of practice, this code should be rooted in statute, taken into account by the courts in whistleblowing cases, and included in the inspection regimes of regulators. Will the Minister pursue this?
Next, legal protection for whistleblowing in the Public Interest Disclosure Act needs to be extended to prevent the blacklisting of job applicants, which is such a potent disincentive to whistleblowing. Protection also needs to be extended to those working in sensitive positions in organisations that could benefit significantly from encouraging and protecting whistleblowers. The definition of “worker” needs to be clarified—and there is some doubt about the current definition under the recent Enterprise and Regulatory Reform Act—so that it includes without doubt student nurses, doctors, healthcare professionals, social workers and general practitioners. It should also be clear that the term “worker” includes volunteers, interns, non-executive directors, professional partners, including partners in LLPs, priests and ministers of religion. These are all categories of worker listed under the Equality Act 2010 but not currently protected, or at least it is not clear that they are, under the provisions of the Public Interest Disclosure Act. Overseas workers raising concerns about their UK subsidiaries need protection as well. I would therefore be grateful if the Minister could confirm that the Government will find the first available legislative opportunity to extend such protections.
Whistleblowing protection needs to be extended to allow individuals seeking advice from trade unions to be more easily protected. Whistleblowing protection needs to be simplified to ensure that everyone understands that gagging clauses are illegal, to make the causation tests for dismissal and detriment the same, and to make sure that whistleblowers can easily raise concerns with regulators. Will the Minister undertake to do this?
At present, it is possible for wrongdoing to be buried in settlements as there is no open register of claims under the Public Interest Disclosure Act. In 2008, the then Government introduced a process whereby claimants could request that their claims be sent to the relevant regulators, but this process is not mandatory. Not all such claims were sent forward, and it should be mandatory. The employment tribunal process needs to be improved for whistleblowing claims, a register of claims under the Public Interest Disclosure Act should be made available to the public, and the referral of such claims to regulators should be made mandatory. Again, I would be grateful if the Minister could confirm that the Government intend to make progress in these areas.
There are also complex issues around extending whistleblowing protection to members of the armed services and those involved with national security. At the moment, national security whistleblowers enjoy no protection, even if the concerns they raise have nothing to do with national security but are about other issues such as human rights abuses, bribery, procurement and corruption within the chain of command. I should be grateful if the Minister would agree to look at these issues and write to me with proposals for extending protections in this area. Perhaps he could also copy the letter to those noble Lords who are taking part in today’s debate and place a copy in the Library.
Finally, the Public Interest Disclosure Act does not protect disclosures by workers, primarily in law firms, of information that is subject to legal professional privilege, even where the worker raises the concern with a senior colleague in their firm or with the client. This appears to be an anomaly as in both cases such communication would not be a breach of the privilege or of confidentiality, even though the information itself is privileged. There would therefore seem to be no good reason to deny the protection to such whistleblowers. I would be grateful if the Minister would agree to bring forward an amendment to that effect at the first available legislative opportunity.
I recognise that this is a long agenda for the Minister to address, but it is still not comprehensive. This is such an important area of public policy, with the potential to transform the way public services are delivered, that I hope the Minister will be able to engage constructively with it and make significant progress on all the issues I have raised today.
Baroness Browning (Con)
My Lords, I commend the noble Lord, Lord Wills, for bringing the Committee’s attention to and providing the opportunity to debate, the document that we have all received from the Whistleblowing Commission, which was initiated by Public Concern at Work. As I was a Member of Parliament for 18 years, I am very familiar with the charity Public Concern at Work. I have recommended it to many constituents who have come to me with problems because, as whistleblowers, they found themselves under pressure for trying to do what they saw as the right thing and becoming the victim. In some recent very high profile cases, we have seen appalling results that have happened to whistleblowers who have tried to do the right thing, particularly in very severe cases to do with the health service.
I support the request by the noble Lord, Lord Wills, to the Government to look at this and see if they can use this as a blueprint—that is what is being asked for—to implement and tighten up not only the way in which the public sector works as far as whistleblowers are concerned but to help prevent the need for people to feel that they have to whistleblow in the first place.
I shall focus on two aspects of the report in its summary of recommendations. As the noble Lord, Lord Wills, said, recommendation 1 is for a code of practice, which is outlined in detail at the back of the report. One of the points in the proposed code of practice, at section 8, is:
“Where an organisation publishes an annual report, that report should include information about the effectiveness of whistleblowing arrangements”.
It goes on to show that this should be incorporated as a normal part of what we would all regard as the essential reporting of governance of any organisation. It applies to the corporate sector as well as to the public sector.
This recommendation should be adopted because if an annual report is produced it should also show who at the top on the board of directors of an organisation—whether public or private sector—is responsible for overseeing that this happens, if that is what has been agreed. As a Member of Parliament, I was involved in cases in which potentially there could have been whistleblowers who might well have prevented some tragic happenings. Many that we started to investigate resulted in suspensions. For example, in the case of a hospital, staff were interviewed and asked why they had not said something earlier. A certain culture has developed in recent years, particularly in the public sector.
I am very pleased to see that the noble Earl, Lord Lytton, is in his place because in a similar debate a while back he gave me a quote that sums up this culture and why whistleblowing is so essential, so that people feel strong and secure enough to come forward. The noble Earl said that collectivisation of risk equals abrogation of individual responsibility.
I have experienced this culture myself. Where several people now share the risk and make collective decisions, that sounds all very well; but it often results in people asking, “Who is in charge and who will actually take a decision?” One often finds this culture in what I can only describe as process-driven organisations that are looking at processes rather than outcomes. That needs to be looked at that. If we can change it and if—as in this code of practice—there are people who have to take responsibility and publish what the outcome of that responsibility is, that should trickle down through the organisation and there should be less need for people to feel that they have got to blow the whistle. I believe that systemic problems will be identified in a much more structured way and before crisis point is reached. I therefore commend the code of practice.
The other area I particularly commend to the Minister is in recommendation 2, concerning regulators, in the summary of recommendations in the report. It is essential that regulators have a much more hands-on role in their inspections. We have heard of far too many cases lately in which regulators in different areas of the public sector have significantly missed huge, life-threatening problems, despite the fact that they have been into a premises, inspected its processes and interviewed people; and still tragic consequences have come about as a result of those regulators not asking the right questions or picking up on the really serious issues. Again, this is a really important area in which regulators should have a much more hands-on role in making sure they are involved, not just in identifying problems but in dealing with the policy of the organisation as far as whistleblowers are concerned, so that they can help prevent the need for whistleblowers in the first place.
Sometimes there is a little cynicism about people who whistleblow. Of course, occasionally one comes across a person who one might describe as a vexatious complainant. The noble Lord, Lord Wills, has been a Member of Parliament and he and I have had our fair share of vexatious complainants. However, most people who see what is happening in a workplace or in the organisation they work for and can see that it is causing harm to others should be supported, and know that the law is on their side and that there is something they can do about it.
Lord Phillips of Sudbury (LD)
My Lords, I should declare an interest in that 20 years ago I set up the charity, Public Concern at Work. I think it took me five or six years to persuade the Charity Commission that it should be given charitable status, but we got there in the end and it has done a wonderful job ever since. I commend the PCaW commission on this report. It is led by my old friend Tony Hooper—the right honourable Sir Anthony Hooper and a former judge in the Court of Appeal, I should say. There is no point in pretending that this is anything other than an incredibly vexed set of issues and that there is a great deal of fear where whistleblowing is concerned. There is also no point in disguising from ourselves the fact that we live in an age of collapsing standards. Over the past few years our own proud City of London has been embroiled in tragic and scandalous behaviour of all sorts. Great banks have completely lost their way. However, it is not just about us because this is a predicament across the developed world, and probably the underdeveloped world. The need for whistleblowing is therefore ever greater.
It is an extraordinary fact that in the LIBOR and PPI scandals and the foreign exchange rigging, apparently no whistleblowing went on. Those corrupt scandals lasted for years and involved hundreds of people—in the PPI case tens of thousands of people—all of whom knew that what they were doing was wrong. Most of them knew that it was unlawful and some knew that it was corrupt. The need, therefore, to act on the central provisions of this report certainly seems to be quite plangent. In saying that, I am not deluding myself, because I agree entirely with the noble Baroness, Lady Browning, that without an underlying moral cohesion of our society in the minds and hearts of ordinary people, no amount of law and regulation will succeed. The one can only buttress the other, but we need to buttress more effectively.
The Public Interest Disclosure Act 1998 was good as far as it went but, first, it did not go far enough. Some of the areas of insufficiency are set out in the commission’s recommendations. Secondly, I want to emphasise strongly that there is a total insufficiency of enforcement, a point that I hope the Minister will take back with him. Given the choice of putting much more effort into enforcement and making no changes to the law, I would go for the former every time. How many cases of fraud have been prosecuted on the back of evidence given by whistleblowers? The Minister may not know—it is not fair to spring it on him.
Perhaps I may mention Paul Moore of Halifax Bank of Scotland, who 10 years ago was dismissed for blowing the whistle on a state of affairs within that massive entity that was wrong and completely unsustainable. To give him his full title, Mr Moore was the head of Group Regulatory Risk and the good practice manager. After a great deal of in-depth inquiry, he reported to the main board, as he did at every board meeting, that the bank’s system was not sustainable. Indeed, one senior employer told him that to meet sales and marketing targets, the bank had to act unethically and that it could not be done ethically. That man has been blackballed in the City from that day to this. He never got an interview for any job he applied for and he was not offered a job. We have to understand, too, that we have a culture whereby people involved in certain aspects of our economy are themselves corrupted by all this, and who view anybody who tries to uphold the law as a traitor. Noble Lords would not believe what this man has been called in the intervening years. I have spoken to him about this at length and in depth and have his consent to mention these facts today.
I know that this is a difficult area of enforcement—I make no bones about it. It requires sensitivity, extreme tenacity of prosecutorial effort and a detailed knowledge of the law. Whoever takes this on will be met by legions of expensive lawyers and accountants because that is another feature of our times—the total disparity of resources in trying to uphold the law in relation to fraud and so on.
I commend recommendation 21 which asserts that tribunals dealing with the Public Interest Disclosure Act should be presided over by someone with specialist training in this field. We should look at what the Americans do, as they have a public authority with responsibility for dealing with whistleblowing. I think that is right. We need to go that way and have an authority—it may be small, but strong—which can uphold and enforce the law in conjunction with the prosecutorial authorities.
Finally, I believe that the most important body of recommendations in the commission’s report are those which beef up the role and the duty of the regulators in all aspects of our economy so that they have the power to require large companies to do something effective to enable whistleblowing to thrive to the benefit of companies, the economy and the country. That is the point, is it not? I wish well the Minister, the Government and all who have to take these important matters forward.
Lord Low of Dalston (CB)
My Lords, I am particularly grateful to the noble Lord, Lord Wills, for securing this debate because I took quite an interest in the legislative framework on whistleblowing when the Enterprise and Regulatory Reform Bill was going through the House last year; and because I argue there are reasons for believing that the need for that framework to be as positive and supportive as possible grows ever greater by the day. Indeed, that point was made by the noble Lord, Lord Phillips. Some themes are beginning to emerge—that is just one of them—but I hope that it will do no harm if I underline one or two of them.
Research commissioned by the charity, Public Concern at Work—the organisation which commissioned the report whose implementation we are debating—has shown that in recent years, at least, attitudes to whistleblowing and whistleblowers are positive. However, it was not always so. This led to a series of Private Members’ Bills in the Commons during the latter half of the 1990s, sponsored by the then MP, Tony Wright, and the noble Lord, Lord Touhig, which finally culminated in the Public Interest Disclosure Act 1998, steered through by Richard Shepherd MP, which sought to give legal protection to whistleblowers against the negative reaction their conduct attracted from fellow workers and employers.
There are good reasons for keeping this legislation under review so that it remains fit for purpose. The commission whose report we are discussing makes a compelling case in its own terms for saying that it could do with updating and simplifying in a number of respects. Indeed, Public Concern at Work is much to be commended for commissioning this report, and the commission itself is to be congratulated on producing a report which is both comprehensive and lucid, and all within a modest compass.
I hope that nobody imagined that I was trying to pour cold water on any of its recommendations by upsetting my glass of water when the noble Lord, Lord Wills, was in full flood. He was in full flood and I am glad to say that I created only a minor one over here.
The report argues that PIDA is not working as intended, and that it could benefit from some amendment. Whistleblowing may be viewed in a positive light at a societal level but this is not commonly how it is experienced by the whistleblower at a local level, where whistleblowers are typically regarded as trouble-makers by their employers and traitors by fellow workers. Blacklisting of workers who raise concerns about health and safety issues is thought to be commonplace in the construction industry and is also found in other sectors. Lisa Martin, for example, who exposed serious abuse at the Orchid View care home revealed that she had been unable to get a job in the care sector ever since reporting her concerns to the police in 2011. Some workers have even had death threats. It is little wonder then that in such a climate, workers fail to speak up because of their concern that they will not be listened to or that nothing will be done at best, or from a fear of reprisals at worst. The report makes a number of sensible recommendations for dealing with the current legislation’s shortcomings in dealing with these abuses. I hope very much that the Government will look at them very seriously.
However, as I have hinted, the reasons for welcoming this report and urging its rapid implementation in full go wider. Such is the decline of trust in many of our key institutions—politics, the police, the NHS, the press and even the BBC—that whistleblowing now assumes a strategic significance, outstripping anything that it had before. There has been a succession of scandals, such as the Savile affair, Orchid View, which I have mentioned, the system of care homes in north Wales, the rigging of LIBOR and the foreign exchange market, price fixing in the energy industry, Hillsborough, the Mid Staffordshire NHS Foundation Trust and phone hacking at the News of the World. All those scandals show that once where we thought we could rely on the corporate culture to ensure that organisations behaved properly, and that if they did not, wrongdoing was brought to light and malefactors were brought to book, we now have to rely on the whistleblower as our last defence against the corporate culture which thrives on malfeasance. As the report says in its foreword:
“Effective whistleblowing arrangements are a key part of good governance. A healthy and open culture is one where people are encouraged to speak out, confident that they can do so without adverse repercussions, confident that they will be listened to, and confident that appropriate action will be taken”.
The commission makes a number of recommendations designed to promote this strategic role of whistleblowing and it is to those that I particularly want to draw attention. Recommendation 1, on which the noble Lord, Lord Wills, spoke at some length, says that,
“PIDA be amended to authorise the Secretary of State … to issue a code of practice on whistleblowing arrangements, and provide that such a code of practice must be taken into account by courts and tribunals wherever it is relevant to do so”.
The report contains a draft code of practice which is recommended to the Secretary of State as a basis for consultation. Recommendation 8 states:
“The Commission recommends a simplification of PIDA”.
Recommendation 10 suggests that,
“the Secretary of State uses the powers set out in Section 20 of the ERRA”—
Enterprise and Regulatory Reform Act—
“2013 to add”,
a number of categories of workers to PIDA, including job applicants who are victims of blacklisting.
Recommendation 25(d) suggests that the Government “undertake research” to assess, inter alia,
“whether a state sponsored agency could carry out strategic litigation and give legal support to whistleblowers (similar to the model of the Equality and Human Rights Commission and its work in discrimination cases)”.
The Government have given a commitment,
“to ensuring a strong legislative framework to encourage workers to speak up about wrongdoing, risk or malpractice without fear of reprisal”.
In their national action plan for open government, the Government have agreed to take into account the findings of the Whistleblowing Commission and to consider legislative change, statutory or non-statutory codes of practice, guidance and best practice measures. I look forward to the Government delivering on those commitments.
Finally, the Government launched their own consultation on the whistleblowing framework last July. It would be good to hear from the Minister about the progress of that call for evidence and when we are likely to get the Government’s response to the evidence received.
The Earl of Lytton (CB)
My Lords, I, too, congratulate the noble Lord, Lord Wills, on securing this debate, Public Concern at Work on setting up the commission into whistleblowing and the commission itself on writing what is an absolutely excellent report. Noble Lords will know that my interest stems in particular from police conduct and crime recording. Given the systemic fiddling of the crime figures, it is surprising how few internal questions were being raised, and as we now know, the problems of widespread cover-up went much deeper. I pay tribute to the many people who have put themselves at risk to blow the whistle. Were it not for them, many very serious cases would never have come to light. Even so, we know that bad practices continue and, indeed, that lives are at risk, so we have no reason to be complacent. Thank goodness that, in retirement, some former police officers have retained a conscience.
The report identifies problems with bullying, harassment and blacklisting of whistleblowers. Some are seen as troublemakers, as we have heard, and have been unable to secure further employment in their chosen field. My analysis is that blacklisting would be to no purpose if it were not for senior people still in post whose policies and activities might yet be exposed by that same whistleblower being restored to their position. Weak, if not actually corrupt, management protects them. That is a sign of a great deal of unfinished business.
Under the Public Interest Disclosure Act, whistleblowing comes within employment law. As any business knows, employment issues are a nightmare even if there is a fully fledged HR facility. Separating terms and conditions of employment from the objective reporting of corporate wrongdoing is almost impossible. The whistleblower must go to the line manager, but there is an obvious conflict of interest for the manager, to add to the confusion between employee conditions of work on the one hand and reporting of behaviour contrary to public interest on the other. Whistleblower protection is thus inadequate, and the current system is ineffective as well as the process being divisive.
At paragraphs 79 and 80, the commission explains one paradox where an employee claims a genuine belief that disclosure was in the public interest, but the employer can dispute this without first addressing the primary issue of whether there was corporate wrongdoing. Recommendation 12 specifically highlights the issue of workers “wrongly identified” as whistleblowers. I do not believe that the necessary change in corporate attitudes will happen on its own without some sort of push. However, information about corporate misdeeds is not confined to employees. It may be an outsider—a family member, business associate, subcontractor or even an observant bystander—who sees things and cottons on to the fact that something is amiss, possibly something not affecting employment at all. These people have no reliable avenue for raising concerns, so I maintain that the current construct is too narrow and that its scope needs to be widened substantially.
Follow-up for both employee and non-employee categories can be extremely patchy, as we have heard. There are numerous instances where an employee has gone to their line manager or people outside have gone to the police with their worries only to find that nothing happens and the evil persists. It is a failure of corporate social responsibility.
Where a systemic culture of cover-up and large-scale complicity exists, management can, quite literally, close ranks and kill the issue. This also happens in hierarchical bodies and in uniformed services, where the concept of not grassing on your mates is a particularly potent bond. The other concept of noble purpose—perhaps public order, saving lives, curing disease—may even override all other considerations, including decency, proportionality and justice. The scandals of some police-on-police internal investigations in response to whistleblowing are an example.
The noble Baroness, Lady Browning, quoted me, but in fact I am not the origin of the comment. It comes from a 2008 article in Policing by Barry Loveday of the University of Portsmouth. He links some of these aspects with the construct of performance management. He says that when applied to public sector bodies as opposed to manufacturers with measurable outputs of widgets and sales, the results are often this collectivisation of risk, avoidance of individual responsibility and abrogation of leadership. Mid Staffordshire NHS Foundation Trust had precisely that generic problem.
These mutually reinforcing factors mean that we have to be particularly vigilant in the choice of mechanisms that enable people to speak out when they feel a compelling need and protect them from reprisals when they do so. My suggestion would be to follow recommendation 25 in the report, in that we need a completely independent, sector-by-sector whistleblower ombudsman—I use the term broadly—in other words, a totally confidential, external and objective mechanism with enough expertise to distinguish personal employment issues from plain mischief making, and both of those from genuine public interest disclosure. It would need powers to act on the findings.
The question will be asked: how do we fund this? To which my answer is that if there was proper assessment of the distress to families and individuals of miscarriages of justice, the damage to employee prospects, the dereliction of public interest and even the deaths, then it would happen. Today’s press coverage of fraud in the NHS tells us that the present situation is, frankly, unaffordable.
However, the final problem may be at the top. I refer, of course, to the reluctance of Governments to countenance anything that discloses unsavoury reactions by the state, often for long periods afterwards. The unnecessary use of the Official Secrets Act and of public interest immunity certificates in judicial proceedings are examples of the same corporate lockdown as confidentiality clauses and gagging provisions that are used to protect guilty people and prejudice innocent public interest whistleblowers. These factors should be subject to judicial scrutiny, even if by closed session.
There is also a dangerous belief that some areas of endeavour are above suspicion. They are not and must not be. We can, if we wish, make provision in an organised way, or we can leave it to default through the court of the press, the web and social media. There is a choice, and I suggest that we get ahead of the curve. The commission has helpfully fired the starting gun in a report that covers a wealth of issues. I hope the Government are listening.
Lord Young of Norwood Green (Lab)
My Lords, I, too, congratulate my noble friend Lord Wills on initiating this debate. Contributing at the end, I find that the waterfront has been covered so well that I am almost tempted to say “ditto”. However, given my position as Front Bench spokesperson, I probably need to say a little more than that.
I went on to the website to look at the call for evidence and I noticed that it finished in November last year. However, I did not find a report. It may be that I missed it but perhaps the Minister could say whether any summary of the evidence has been published as yet. I can see a head shaking so it looks as though the answer is no. It has been quite a long while but no doubt we will be informed why. If the call for evidence finished in November, I would have thought that by now we would have had at least a summary, if not a complete report.
I concur with much of what my noble friend Lord Wills said. He made the point that the PIDA is now 15 years old. It may not be whiskery but given all the analysis we have heard today and the tributes we ought to be paying to Public Concern at Work—I was fascinated to learn that the noble Lord, Lord Phillips, was the instigator of that organisation—
Lord Phillips of Sudbury
I am terribly sorry. I should not mislead your Lordships. I was only the mere lawyer who set the thing up; I was not the impetus for it.
Lord Young of Norwood Green
Okay. He played a significant role, we will say. It is not often that I dare to disagree with him, and his analysis is usually good, but when he said that if he had to make a choice between reform and enforcement he would go for enforcement, I did feel that that is not the advice we ought to be giving the Government. It is a 15 year-old piece of legislation and a very significant and comprehensive report—it ought not to be an either/or choice; it should surely be both. Reform is pointless without ensuring that we have adequate enforcement, as we have heard, with regard to all the difficulties that whistleblowers face.
I have to be careful how I comment on an issue that I was personally involved with recently as a school governor, when I saw what happened when somebody tried to deal with a difficult and sensitive issue. They were not exactly congratulated by all those concerned and it led to the individual feeling that they did not want to continue in their role as governor. The point has been made time and again: the pressures on people who try to blow the whistle are enormous.
I could not help but reflect on the comments made by the noble Lord, Lord Low of Dalston. He listed a whole range of organisations, in construction, care homes, the BBC, the police—the list goes on and on. We have heard so much of this. It was actually the noble Lord, Lord Phillips, who mentioned the E-word—ethics, although I heard it only once. I am always fascinated when people talk about what goes on in MBA syllabuses and business schools and I am constantly reminding them of the importance of ensuring that ethics is a part of training.
Someone else—I think it was the noble Earl, Lord Lytton—talked about corporate social responsibility. It is there in every annual report. In theory, it is in companies’ own interests to encourage whistleblowing. If you think of the cost when organisations fail—whether it is health and safety or PPI, for example—the payouts are enormous. Companies ought to have a strong vested interest in ensuring that all their procedures are right but we know that, time and again, whether it is the hierarchical resistance referred to by the noble Earl, Lord Lytton, or the sheer fear whistleblowers feel about the reaction from their colleagues—whether it is higher up in the organisation or, as we saw in Mid Staffs, your own work colleagues—it takes a brave person to become a whistleblower. There is no guarantee that what you are doing, even if it is deemed to be in the public interest, means that you will be seen as a hero. The reverse can happen: not only can you lose your job but you can then fail to get employment elsewhere.
Without going through every single recommendation of the report—I do not think that I need to do that because so many of them have already been highlighted—there was one that I wanted to draw out, which was mentioned by the noble Earl, Lord Lytton: the question of whether workers who are wrongly identified as having made disclosures should be protected. I was interested in that because the Public Interest Disclosure Act says that the protection provided by the Act is not subject to any qualifying period of employment, so it is referred to as a “day one” right in employment law. Yet here, Public Concern at Work was saying, “Well, where the worker is wrongly identified as a whistleblower, there is a possibility that they will not get that ‘day one’ right to protection”. I hope that the Minister will be able to cover that in his response.
As regards all the points that have been made on regulation and being clear about what we mean by a worker—my noble friend Lord Wills was absolutely right when he gave us a long list of workers where it is doubtful whether they are necessarily included—I do not need to go through those again because they have already been adequately made. However, I look forward with interest to the Minister’s response, especially to the point I made about the call for evidence.
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Viscount Younger of Leckie) (Con)
My Lords, I am grateful to the noble Lord, Lord Wills, for initiating this important debate. As we have heard, whistleblowing is a sensitive issue which continues to be in the spotlight, bringing public matters of concern to our attention.
The noble Lord, Lord Wills, my noble friend Lord Phillips and the noble Lords, Lord Low and Lord Young, highlighted some examples—in the case of the noble Lord, Lord Young, a personal example—of incidents or tragedies that may well have been avoided if those people who had spoken out had been heard and some action taken. The noble Lord, Lord Wills, raised a number of questions, and I will certainly attempt to answer them all during this debate. If I fail to do so, I will write to the noble Lord and copy in all noble Lords who have contributed today.
As noble Lords will be aware, the Public Interest Disclosure Act was introduced in 1998 to provide protection in the workplace to individuals who make a disclosure which is in the public interest. The noble Lord, Lord Wills, described it, correctly, as “landmark” legislation. Where disclosures are made in good faith and in the specified way, the law protects the whistleblower from unfair dismissal, from being victimised by the employer or from otherwise suffering a detriment at work.
Last July, the Government renewed their position in support of the important role whistleblowing can play in a workplace by further strengthening the legislation. Through the Enterprise and Regulatory Reform Act, we made a number of changes to the whistleblowing framework. We introduced a public interest test, which requires an individual who brings a claim at an employment tribunal to show that they had a reasonable belief that their disclosure was in the public interest. That brought the law back in line with its original intention.
We made an amendment to the good faith test so that it is relevant to remedy and not liability, meaning that it affects the compensation an individual may get if they win their case rather than the outcome of the case itself. Previously, if an individual was unable to show they had made their disclosure in good faith at an employment tribunal, their case could fail. Now, even if an individual is unable to demonstrate good faith, they can still win an employment tribunal claim. However, any compensation awarded in respect of that claim may be reduced by up to 25%.
We also introduced vicarious liability, which ensures that an individual who has suffered a detriment from a co-worker as a result of blowing the whistle can bring a claim against both the co-worker and the employer, who may be vicariously liable for the actions of the co-worker. We made an amendment to the definition of “worker” to include certain contractual arrangements in the NHS to ensure that certain NHS workers, including GPs, would qualify for the whistleblowing protections. We also inserted a power enabling the Secretary of State to make further changes to the definition of worker by secondary legislation, so that the law can be kept current in this respect. To echo the words of the noble Lord, Lord Low, many of those changes are a result of the hard work of groups such as Public Concern at Work—which the noble Lord is speaking for today—that bring important issues to the attention of the Government.
During the passage of the Enterprise and Regulatory Reform Bill, the Government also committed to reviewing the whistleblowing framework through a call for evidence to identify whether further changes were required to improve the effectiveness of the legislation. The call for evidence was held between July and November last year, and officials in the Department for Business, Innovation and Skills are currently analysing the submissions. It involved a thorough process where discussion sessions were held, meetings with interested parties took place and responses were submitted by 81 individuals or organisations. My noble friend Lady Browning stated that she hoped this would be a blueprint for the future, and I hope so too. As part of its analysis, the department is taking into account all the submissions, including the recommendations made by the PCaW commission. I have had sight of the initial analysis produced by officials. Many of the issues raised here today by noble Lords and by the PCaW commission’s report have been taken into consideration.
My noble friend Lord Phillips spoke passionately, focusing particularly on enforcement. I do not wish to pre-empt the Government’s response, which I believe will be published before the Easter Recess—which I hope answers the question from the noble Lord, Lord Young—but it might be helpful if I outline for your Lordships today some of the key issues that have been established through this process.
First, we have established that there is a level of basic misunderstanding in relation to the provisions acting as a protection against detriment rather than providing a remedy once that detriment has occurred. Secondly, there is a high level of concern that the issues that are raised by whistleblowers internally to employers rarely become the focus of the employer’s attention. The focus tends to be about the existing working relationship between the worker and the employer. For example, if a concern is raised with an employer about inconsistent safety practices witnessed on a worksite, the expectation of the individual would be for the employer’s focus to be on the concern that they have raised, not on scrutinising the individual’s employment history as a way of deflecting attention from the concern itself. As my noble friend Lady Browning said, the focus should be on the issue, not just on the process.
Thirdly, the culture around whistleblowing seems to be the driving force behind negative responses to disclosures and the resulting victimisation or detriment that the whistleblower may suffer. Fourthly, it is of concern to the Government that practices and standards for handling whistleblowing disclosures made externally—to regulators, for example—are inconsistent across organisations, with a disclosure often negatively received. My noble friend Lady Browning made a particular point of this issue, while my noble friend Lord Phillips spoke about beefing up the power of the regulators.
I want to say a few words about regulators, because the Government recognise that there is more that the regulators could do to reassure the whistleblower that the disclosure is being dealt with, given that the whistleblowing legislation is designed to deal with the detriment that a whistleblower may suffer rather than the issue of the disclosure itself. There is a challenge here for the Government to identify an appropriate solution in this area, but I assure the Committee that efforts will be made to do so.
This is not a new issue to us and we are considering how to address it in practical terms. The answer here will most likely fall to addressing cultural behaviours—the noble Lord, Lord Young, mentioned the important point that there is a close link between cultural behaviours and ethics—as well as through the legislative framework itself. Obviously we want to ensure that the level of understanding is correct and that individuals are willing to speak out without fear of reprisal. However, we also want to help business to understand the benefits that whistleblowers can bring to an organisation through helping to tackle corruption and malpractice by aiding the early detection of issues so serious that they can destroy businesses or even threaten life. The Government believe that the most effective way to do this is by setting direction and sharing best practice while giving employers the space to get it right in the way that works best for their organisations. Mandating best practice through statutory measures is not necessarily the best means to achieve the cultural change that is needed.
As I have already said, it would be imprudent and inappropriate of me to pre-empt the government response. However, I assure the Committee that a thorough review of the framework has taken place through the call-for-evidence process and that the outcome of the exercise will be available shortly. That is as far as I can really go in answering the question about timing from the noble Lords, Lord Low and Lord Young. We will continue to work with organisations such as PCaW to implement any changes that may come about as a result of the response to the call for evidence.
My noble friend Lord Phillips asked how many cases of fraud have been prosecuted. We have statistics for how many claims have been brought at employment tribunals by those who have suffered a detriment as a result of blowing the whistle. However, we are unable to confirm the number of fraud cases that have been prosecuted as a result of those disclosures. I will be very happy to try to establish the number and to write to the noble Lord on that point.
The noble Lord, Lord Wills, who has been very patient, raised a number of points that I will address. First, on the matter of codes of practice, the Government agree that guidance on best practice needs to be improved to drive up standards and consistency across all organisations. Indeed, there are many examples where non-statutory guidance is an effective tool for ensuring certain standards within industries or sectors. For example, there is the fair access protocols advice that the Department for Education has developed to provide advice to help local authorities and schools understand their obligations and duties in relation to the schools admission code.
Furthermore, there are industry codes of practice, such as those used in the oil and gas industry, which are an effective means for self-regulation within a sector. Those examples demonstrate that statutory codes and guidance are not always required to drive certain behaviours, compliance and standards. However, as this is a matter that has come up in the call for evidence, I can assure noble Lords that the Government are currently deciding the best approach for ensuring that standards for whistleblowing are consistent.
The noble Lord, Lord Wills, and my noble friend Lord Phillips asked if the Government will do anything to address the issue of whistleblowers becoming blacklisted as a result of making disclosures, which was an important point. The Government are clear that blacklisting is a totally unacceptable practice and do not support it. Individuals who believe that they are being excluded from employment because of a blacklist should seek redress in the county courts in England and Wales, or Court of Session in Scotland, under the Employment Relations Act 1999 (Blacklists) Regulations 2010. While there are protections in place for this type of treatment, there is more to be done than just leaving individuals to rely on a legal protection.
The noble Lord, Lord Wills, asked about adding additional groups to the definition of worker. We are aware of some of the groups of people; noble Lords have raised groups that have been identified as not qualifying for whistleblowing protection in the event that they make a disclosure. The provisions do not definitively exclude some members of those groups. However, the Government are again looking at this issue and hope to strike the right balance to include those where there is clear detriment suffered and the appropriate remedy for address.
The noble Lord, Lord Wills, asked about the anti-gagging clause. The Government believe that the legislation on the invalidity of the gagging clauses is clear. However, these are not applicable in respect of a disclosure. The guidance around that issue will be updated to make it clear. In addition, he asked whether the Government will consider adding trade union representatives. The answer is that any further changes to the prescribed persons list will be considered at a point when the list is next revised.
The noble Lord, Lord Wills, asked about claim referrals. The Government are looking at the system of referrals in the employment tribunals as part of the call for evidence and will report on that in due course.
I fear that I am just out of time. There are a couple of questions that I certainly will endeavour to answer by letter to the noble Lord, Lord Wills, and, indeed, any other noble Lord who asked a question.
I hope this reassures noble Lords that the Government have been listening to a wide range of views on this important matter and that they will be taking steps to address these issues where possible.
Finally, I will be happy to send a copy of the government response when it is published—and I have said that that will be soon—to all those taking part in this important debate.