Whistleblowing Protections
(4 days ago)
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Gareth Snell (Stoke-on-Trent Central) (Lab/Co-op)
I beg to move,
That this House has considered protections for whistleblowing.
It is a pleasure to serve under your chairmanship for today’s debate, Sir Mark. This week is Whistleblower Awareness Week, so it is a very timely debate, and one that is long overdue. For as long as there has been misconduct in public activity, there have been brave individuals willing to put their head above the parapet and highlight a problem. There have been brave individuals who have sought to shine a light on the dark recesses of corruption, and those who have said, “Up with this I will not put.”
We would normally think of those people as whistleblowers. We would think of them as being protected in some way, because we talk about protection for whistleblowers as if it is some sort of universal activity. It has, however, been shown to me, as somebody who is relatively new to the world of whistleblowing, that depending on how someone blows the whistle, on their relationship with the organisation about which they are highlighting a problem, and on the way in which they disclose that information, they could or could not be a whistleblower. I shall focus on that today. I shall also talk about the positive steps that the new Government have already committed to, and where I think there is an opportunity for further development of protections for whistleblowing. I will talk about a solution to some of the problems, which I know that people who are interested in the subject are particularly concerned about.
Over the last couple of decades, we have witnessed many problems, challenges and scandals. Those that are timely and pertinent today include the Horizon Post Office scandal, the infected blood scandal, the tragedy of Grenfell, and the scandal of personal protective equipment NHS contracts and public waste. We often talk about whistleblowing after the event, after somebody has said, “This is a problem and we should do something about it.” The problem that leaves is that the damage is already done. We then have to say to those people that although they are doing the right thing, it could come at considerable personal cost and detriment to their character and standing. Ultimately, because of the way in which the current law is written, it could be boiled down to a dispute that ends up in an employment tribunal focusing on the relationship between the whistleblower and the organisation they are highlighting concern about, rather than the act that they were raising concern about in the first place. That leaves a whole series of problems that we need to address. I think there is a way of doing that through new laws, which I will talk about slightly later on in my remarks.
Like many of my colleagues here this afternoon, I come from a trade union background. Too often, whistleblowers end up in a situation akin to the blacklisting of trade union officials. People are willing to stand up and say the right thing, but then find themselves penalised within their sector and get labelled as the bad apple, the troublemaker or the person who has all too often tried to agitate and cause concern, when they are simply seeking to highlight something that is bad and wrong. That puts them at great risk, because the question then becomes, “Do I speak up?” Do they speak up about the bad thing that they see happening? Do they draw attention to misconduct or dereliction of public duty, or do they quietly get along with their job and life and keep their head down? The existing protections for whistleblowers do not give people the confidence to stand up and make that declaration, because of fear for their livelihood, job prospects, career and family. It is often a case of David versus Goliath, where an individual has bravely put their head above the parapet and said, “This is a problem.” Suddenly, the entire resources of large organisations are brought to bear against them.
Anna Dixon (Shipley) (Lab)
I congratulate my hon. Friend the Member for Stoke-on-Trent Central (Gareth Snell) on obtaining this important debate on whistleblowing, under your chairmanship, Sir Mark. I know from speaking recently to a couple of constituents who are whistleblowers that part of the fear of speaking up, which my hon. Friend rightly highlights, is the imbalance of power between public institutions and the individual whistleblower.
The costs, as my hon. Friend said, are heavy on the individual. They can obviously be emotional, due to the stress of these processes. They can also be financial, when the individual tries to maintain their reputation against the full force of public institutions defending themselves and taking the matter through the courts. Those institutions have full access to public funds, which costs the taxpayer a lot.
Does my hon. Friend agree that the Prime Minister’s promise of a duty of candour could be a step forward in changing that imbalance of power between public institutions and whistleblowers? Hopefully, in time, if the public sector takes that duty of candour seriously, we can reduce the need for whistleblowers to call things out.
Sir Mark Hendrick (in the Chair)
I remind Members that interventions are supposed to be brief.
Gareth Snell
My hon. Friend the Member for Shipley (Anna Dixon) is absolutely right. We will not mention individual cases today, but we all know of individuals who have struggled doughtily against the huge available resources of large international corporations—public sector bodies in some cases—that have sought to use the weight and resource available to them, through their lawyers and HR departments, issuing threats and intimidation, to prevent people pursuing things they have seen and done that they know to be wrong. The organisations would rather spend that energy, time, money and effort on dismissing the whistleblower’s concern than put that resource into remedying the situation. The way my hon. Friend explained that was first class.
I want to talk about something that I found out relatively recently, as part of my work with WhistleblowersUK. I did not know that to be a whistleblower, the person has to be engaged in an employment role. I genuinely believed that the whistleblowing policies of organisations that someone had an attachment to would protect them if they saw something going wrong. I thought that if someone saw something they believed was bad—such as corruption, malfeasance, misconduct—and did the right thing by standing up and calling it out, as we all say we should, they would be protected, but they are not.
If a patient in hospital sees something, they are not protected. If a parent sees something wrong with a school, college, university or one of the many organisations their children might interact with, they are not protected. If someone is a school governor, although they have various requirements under safeguarding legislation, they are actually exposed in a way they might not be if they were employed. The contractual arrangements for contractors on site, who see the way that organisations work, would not provide protection. That is a glaring, gaping hole in protections, which we need to tackle.
That means that, when somebody does have the fortitude to stand up and say, “This is wrong,” it often ends up in an employment tribunal. The focus then is on the process by which the whistleblower raised the complaint and the detriment that individual may have incurred; it does not deal with the issue about which they were raising a flag. Again, that allows organisations to shift the emphasis and the attention of their own internal processes to that relationship rather than focusing on the issue that was raised. I think the Minister would agree that that needs to change.
The Minister knows that the new Government have made commitments, particularly through the Duty of Candour Bill, to make sure that individuals who have responsibilities in certain organisations and areas have a duty—a clear duty—to stand up and say, “This is wrong.” There also needs to be protection for that individual, so that when they comply with their new duty of candour responsibilities they can also be protected from detriment, regardless of the way in which they make that declaration to somebody who they believe can do something about it. At the moment, they are horribly exposed, which means there is a disincentive for them to do the right thing. It also means that we end up with people who, for a quiet life, would rather dismiss what they see than stand up.
It was only last night, when we were debating the Employment Rights Bill, that the Deputy Prime Minister said, in relation to the new sexual harassment arrangements for whistleblowers in the Bill:
“If they do the right thing and speak up about sexual harassment, the law will protect them.” —[Official Report, 21 October 2024; Vol. 755, c. 53.]
I believe that should apply to anybody who is speaking up to highlight any problem, and not just to those who are employees where they see sexual harassment.
I welcome the fact that the Government have started a conversation about this issue and that they have taken steps, through the Employment Rights Bill, to remedy some of the deficiencies in our employment legislation. However, I return to my point: this needs to be about more than employment. It needs to be about the way we treat anyone who is willing to stand up, have their say and point out wrongdoing.
My right hon. Friend the Secretary of State for Business and Trade was also quite clear last night when he summed up the debate on the Employment Rights Bill, saying:
“Protection for whistleblowers is a day one right.” —[Official Report, 21 October 2024; Vol. 755, c. 140.]
I am glad that we are putting that into legislation, but I say again that it only applies to those people who are whistleblowing in an employment-related context. We need to make sure that that “day one right” of protection applies to anyone who blows the whistle anywhere in the UK.
Obviously, there has been progression. The Public Interest Disclosure Act 1998 made some progress. However, I think it is fair to say that, in and of itself, its time has probably passed, and that there is a need to reconsider seriously how to improve the opportunities for whistleblowers to make declarations in a way that they are comfortable with and that protects them, so that people who see wrongdoing have the confidence to stand up and point it out as a preventive measure, as much as a curative measure after the event.
From my trade union days, I know that my hon. Friend the Minister did admirable work on this issue before he came to this place. Where someone has the confidence that they can speak truth to power, they can stop bad things from happening in the first place. When someone has the confidence that they will be listened to and protected, that encourages people to come forward and highlight problems before there is that horrible accident at work or that social tragedy, or before an act of misconduct costs the state hundreds, thousands and in some cases millions of pounds, which is obviously money that we can ill afford to lose after the inheritance we received from the previous Government.
How can we make the situation better? I ask that question because I genuinely believe that if we are to have this kind of debate, we should talk not only about what the problems are but about how we can make things better. Later in this Parliament I hope to introduce a new version of the Protection for Whistleblowing Bill—a Bill that will comprehensively rewrite the current rules and regulations around whistleblowing. First of all, it will comprehensively define what a whistleblower is, because at the moment that is a point of debate, and because it is a point of debate we end up in litigation and arbitration, with individuals finding that they have to justify why they made a disclosure in the first place rather than everyone focusing on what the disclosure was. We absolutely need to find a way of moving away from that situation.
Such a Bill would also create a statutory power to protect whistleblowers from detriment. I say, again with my trade union hat on, that we all know that financial recompense for suffering a detriment is the only way we can remedy such detriment, but that person has still suffered a detriment; they have still had a loss as a result of their whistleblowing. So, we need to find a way to prevent the loss in the first place.
The Bill would be able to look at how we do compensation and would have a statutory power to investigate and award penalties. Importantly, it would create the office of the whistleblower. The idea of such an office is neat and clear and something that my party has previously committed to in other debates and votes. The office would be able to put that comforting arm around people who blow the whistle, regardless of where or how they blow it. It would allow parity between those large organisations, or the state, with their HR departments, lawyers and resources, and an organisation and office that acts as a friend, support and neutral crutch on which the whistleblower could lean. All too often being a whistleblower takes its toll on that person’s family, and it can be lonely and scary. An office of the whistleblower would allow that burden to be shared with an organisation, an entity, an office that has an understanding of what the whistleblower is doing and hoping to achieve. It would also be able to look across organisations and spot the patterns. All too often, whistleblowers stand up and make a declaration about something over here, and somebody else will make a declaration over there, but nobody is looking at the patterns and asking, “Is there some underlying issue that we need to address?”
The office of the whistleblower would be responsible for identifying those patterns and generating reports saying whether something untoward might be happening in that organisation, part of the state or public sector body. That would be an important way of bringing that preventive measure to bear so that we can crack down on the waste, corruption and malfeasance. We can ensure that those individuals seeking to corrupt the way they work for their own personal benefit can be highlighted and brought to bear.
Creating the office would require the Government to act. It would require primary legislation as well as the political will to say that we need to catch up with some of our European counterparts who have already moved into this space of having an office of the whistleblower. Crucially, the Minister will be aware that only 18 months ago my hon. Friend the Member for Feltham and Heston (Seema Malhotra), when she was shadowing the brief that the Minister now holds, clearly committed the Labour party to supporting an office of the whistleblower. The Labour party supported an amendment to the Economic Crime and Corporate Transparency Act 2023 that would have created an office of the whistleblower. I appreciate that the Minister cannot make a commitment from his position today because of the way that Government works, but I hope he will take away from the debate the commitments made in the past and the way in which the Labour party—now in government—understood the necessity of such an office, and how that has not changed. I ask whether he and his Department could review what the likelihood would be of taking that forward.
There have been reviews of the way that whistleblowing works over time. I understand that the review of the whistleblowing framework by the previous Government was completed in January. That report has not yet been published. Again, will the Minister undertake to go back to his Department, find that report and potentially publish it? If the report is deficient in some way and the review of the framework has not been undertaken in as comprehensive a way as we would all like, would he commit to refreshing it? Even if we cannot move as fast as I would like towards the outcome that I would like, would he look at reviewing the framework so that people at work, or not at work, who witness corruption, malfeasance or acts that endanger public safety have the confidence to say, “This is wrong”? If they can have the knowledge that somebody somewhere is standing with them, and that they have the support of a Government who take this seriously, we could move quickly towards a country where the scandals I mentioned at the beginning—with the devastating events that took place—could be prevented and we could all live happier, safer and better lives.
Sir Mark Hendrick (in the Chair)
I remind Members to bob if they wish to be called.
Jim Shannon (Strangford) (DUP)
I thank the hon. Member for Stoke-on-Trent Central (Gareth Snell) for setting the scene. I have said it to him before, but it really is a pleasure to see him back in the House and in his place. We had a friendship when he was here before, and it is good to see him back and working energetically on behalf of his constituents. I also thank him and the other members of the all-party parliamentary group for whistleblowing for their continued interest in this important subject.
I said to the hon. Member for Stoke-on-Trent Central that I wanted to give an example of someone who was a whistleblower—a good friend of mine—and explain how it affected him. The hon. Member for Shipley (Anna Dixon) referred to the effect that whistleblowing can have on health. My friend is dead and gone now, and anything I say will be complimentary to him and his family. It is important that, as his friend, I recall his commitment to whistleblowing and the fact that it was traumatic for him in every way.
As I say, my first experience of whistleblowing came with my childhood friend. I call him the late, great Brian Little, because he was. He and I went to school together; we grew up in Ballywalter village back in Northern Ireland. As often happens, we went to school, left school and did not see each other for 20-odd years, then all of a sudden we came together again and our friendship was renewed and reinvigorated. We caught up as our families grew up and other things happened.
I should have said before that it is nice to see the Minister in his place—I wish him well in his role—and the shadow Minister, the hon. Member for Orpington (Gareth Bacon).
Brian was a giant in battling for the underdog, and I miss him greatly to this day. As someone who has always taken for granted the ability to speak the truth and get respect for that, it was a great shock for me to see my friend brought so low for simply doing the right thing. That is what happened to him. He was a whistleblower. I will not go into the details of what it was or the company involved—that would be inappropriate —but the doing the right thing had such an effect on him, and he felt constrained that he had to do it. He lost almost everything, but he worked hard to get it back. He suffered from anxiety and depression, which, as the hon. Member for Shipley mentioned, is how whistleblowing affects people sometimes. He was physically broken by it, when all he did was highlight something that was incorrect in a big company. He did his job, and all of a sudden he suffered for that.
I supported Brian in his fight, and he supported me in the House with his expertise in financial matters. I have to be honest: his expertise fed into any speeches on financial issues that I made a few years ago. He had incredible knowledge of banking issues, the regulation of markets and financial matters. I miss his wise counsel greatly. He died quite suddenly on a Thursday in his daughter’s home. I perhaps had not realised just how many things he had done. He had helped so many people from all over this great United Kingdom—from Scotland, Wales, England and all across Northern Ireland—with their financial issues. The sympathy letters and emails that came in to express shock at his passing were testament to his ability to understand people and help them. He spent the latter years of his life in this world doing right, and literally hundreds of people owe him so much, as I do.
The experience of Brian and all that his family, particularly his wife Jacqui, who is still living, went through in his battle for justice highlighted to me that we certainly do not have it right in our battle for protection of whistleblowers. The hon. Member for Stoke-on-Trent Central is right to bring forward this debate, because the issue is key to many people across this great United Kingdom of Great Britain and Northern Ireland. I recall with fondness those who dared to stand up and be counted, and that is why I am here to support this debate. I am sure others will give similar examples.
The issue is clear, as a cursory glance at the number of whistleblowing cases ongoing in Northern Ireland shows. As you know, Mr Chairman, I always give the Northern Ireland perspective. I want to give that perspective to this debate and ultimately enable the Minister and the shadow Minister, the hon. Member for Orpington (Gareth Bacon), to help with the questions that are being asked and how we can protect whistleblowers better.
We have had complaints in Northern Ireland on issues from covid information to Northern Ireland Water paying millions to contractors for work that had not been carried out, and on a host of issues in between. In each of these cases, it is clear that the current whistleblowing legislation is not robust enough to allow the little man or little woman to take on the big corporations. I think this is what the hon. Member for Stoke-on-Trent Central is seeking to have. I am looking to the Minister because I am pretty sure, if he does not mind me saying so, that he will be able to give us some reassurance on this issue.
While I welcome the steps proposed in the Employment Rights Bill on enhanced protections from harassment in the workplace, I feel—and I mean this gently, and honestly, and in a constructive fashion—that more could be done in the Bill to enhance protections and to ensure there is support for those who dare to speak truth to power. Truth is incredibly powerful, but it is how that truth can be expressed and how that whistleblower can get the answers, and be protected, and not be sanctioned or picked on because he or she had the guts to get up and do it.
We are all aware there are whistleblowing cases that amount to perhaps no more than a grudge against an employer, but those cases should not strip protection and support from those who are putting their necks on the line to protect the public interest and what we need to know. If something is wrong in a big company or a big corporation, it takes a lot of courage and a lot of guts to take that stand. It is my opinion that greater support should be available financially for those who determine to take those steps.
In relation to Northern Ireland I am very keen that, when summing up, the Minister gives some idea of how we can build upon this debate in a constructive fashion working with the Minister who has responsibility for this at the NI Assembly and, moving forward, how we exchange ideas on this with the regions. I look to the Minister—he is an honourable man—and ask what enhanced support we can provide for those genuine whistleblowers who are doing the public a service and who have no house to remortgage to pay legal fees, because current policies simply do not cut it.
My friend Brian had to self-fund his battle; that battle for rights, that battle for justice, that battle against the wrongdoing that he had the courage to highlight, and he was penalised for that. He ended up selling the family home to pay the legal fees. It was a quite extensive family farm. I knew his mum and dad and the family, as one comes to over the years, and it had been an ancestral home, in the family for generations, but it had to go to pay the bill. He was on the right side, but to prove he was right he had to stick fast and it cost him. I think it is true to say that he never fully got over that loss. However, Brian was a Christian and I know that his faith in God was one of the things that kept him going, even though financially, physically and emotionally, he was perhaps not the same person that I went to school with many years ago. Too many people simply do not have those kinds of money-raising facilities and also do not have the David versus Goliath mentality that Brian had. He knew that he could take on the giant because he was not alone. He finally won his case, but the effects on him were dramatic. I believe the message from this Chamber today needs to be clear: you are not alone when you do the right thing.
Dame Meg Hillier (Hackney South and Shoreditch) (Lab/Co-op)
It is a pleasure to serve under your chairmanship, Sir Mark. I congratulate my hon. Friend the Member for Stoke-on-Trent Central (Gareth Snell) on bringing this really important debate to the House. I was reflecting on the number of different Departments involved in trying to tackle the issue, so I do not envy the Minister, but I hope that he will take the messages back to the other Departments that are connected, because I want to focus particularly on the NHS.
We know that the courageous people we have heard about, who blow the whistle, protect us and our communities, yet we do not offer them the same protection—that is the nub of the problem. As I said, I want to focus particularly on the NHS, because we have seen many examples—I will not go through them all—where someone in the NHS whistleblows and their career is in effect over, or very badly damaged, as a result. I want to raise that alarm to the House, and I hope the Minister will ensure that these messages are relayed to the Department of Health and Social Care.
In too many cases, whistleblowers face sanctions at work or threats, and the toll that takes on people’s mental health is enormous, as we heard described eloquently by the hon. Member for Strangford (Jim Shannon). Before this Parliament, I was a member of the Public Accounts Committee for a total of 13 years, including nine years as Chair, and back in 2014, when I was a member of the Committee, we looked into whistleblowing and found that there had been failure
“to protect some whistleblowers from being victimised.”
That puts it mildly. We recommended then that where the identity of whistleblowers is known, steps must be taken to
“ensure that they are protected, supported and have their welfare monitored.”
We said that that should include providing whistleblowers with
“support and advice, such as access to legal and counselling services.”
We also highlighted the fact that too often whistleblowers were “unclear” about who to raise their concerns with, and we recommended “a route map” that showed different
“internal and external reporting routes.”
The Government at the time agreed with the recommendations about a route map, but they deferred further action on whistleblowing policies across the NHS, as they were being considered separately through Sir Robert Francis’s Freedom to Speak Up review. That was a reasonable response from the Government at the time. But then I became Chair of the Public Accounts Committee and we revisited the issue of whistleblowing—and guess what? We were disappointed at the slow progress. If I had been paid £10 for every time I had to use that phrase in that role, I would probably not be here now but sunning myself in the Caribbean, because “too slow progress” is often the mantra.
We now have a new Government, with a new Employment Rights Bill, and I hope we will see further progress. We were not really convinced that change had happened on the ground and we were also very clear that whistleblowing is a sign of complete failure of the system. We should not have to have whistleblowing policies, because modern institutions that work well should have routes whereby complaints, concerns and issues are raised as a matter of routine. I will come to some good work in other sectors in a moment, but we found generally that there was not enough focus on whistleblowing in the wider public sector. The Francis review of the health sector highlighted the need for effective whistleblowing policies not just in the health sector, but more widely.
Earlier this year, the Public Accounts Committee revisited whistleblowing again—it seems to be a bit of a theme—and still we stressed the need to embed a “Speak up” environment. We were looking particularly at whistleblowing in the civil service at that point, but the lessons read across, sadly. The National Audit Office found earlier this year that just 52% of people in the civil service
“think it is safe to challenge the way things are done”.
That was from a review of the responses to the 2022 civil service people survey—that is a bit of a mouthful. The National Audit Office also highlighted the number in the NHS with the same concern—61.5%. That was in 2024, so this year. Less than two thirds of NHS workers think it is safe to challenge the way things are done; lots of work needs to be done to improve that.
There are institutions that do this quite well. Earlier this year, the Public Accounts Committee visited NASA, in Washington. As a result of the tragedies with the Columbia and Challenger space shuttles, the people there have a very open approach to raising concerns. However junior someone is, they are expected to raise a concern up their chain of command in their specialist area, and if they are still concerned, they can take that to another party within the organisation—a whole other set-up—to make sure that they are challenging the approach taken on risk. That is expected. It is embedded in the training that people look at the risk and make sure that they are calling things out. Nothing is too small, and no one is too junior.
Gareth Snell
My hon. Friend probably has unparalleled experience in this House, through her important scrutiny work as both a member of and Chair of the Public Accounts Committee; I was happy to work with her on many inquiries when I was a member of that Committee too. Could I tempt her to tell us how many millions on public procurement projects we might have saved had the system that she has just described been in place in this country? How many hours of time might have been spared? It sounds like an incredible system, and one that this country should seek to emulate.
Dame Meg Hillier
As ever, my hon. Friend manages to cut through to a really important issue. It is not only about the whistleblower; in the whole public sector and parts of the private sector, it is time-consuming and cumbersome to deal with whistleblowing on both sides, and it is very mentally draining, particularly for the whistleblower. It is costly when a mistake happens and is not caught early. A stitch in time saves nine, as they say. That is very much the bread and butter of what the Public Accounts Committee does; it looks at where problems have arisen that could have been predicted and prevented.
The Chancellor is to launch her Budget next week and we need to save money, but—I am not being flippant—in the long term we need to see a change in culture. Aviation is another example of where things happen well. In that sector, it is expected that people call things out. Things do still go wrong, but staff get praised, rather than penalised, for calling out what might happen in safety terms.
This debate has come at an important time for my constituent, Sarah McMahon, who has agreed that I may share with hon. Members her sad experience as a whistleblower. Sarah is a consultant orthopaedic and limb reconstruction surgeon at Great Ormond Street hospital for children. In the summer of 2021, she was asked to look after some patients of her colleague, Yaser Jabbar, after he had an accident. Overseeing those patients, she found things that made her so alarmed that she blew the whistle in the autumn of that year. I am sure many Members will have heard about that case in the media; in short, Mr Jabbar was accused of inappropriate and unnecessary surgeries that led to life-changing injuries for children in his care.
Sarah McMahon wrote to suggest an external review, but nothing was done to address her concerns and Mr Jabbar was allowed to continue operating on children. She tells me:
“I was effectively told to keep quiet and concentrate on my own patients.”
Despite that, Ms McMahon bravely continued to raise concerns about Mr Jabbar and the harm caused to children in his care, and in February 2023—some 18 months after she first raised her concerns—an investigation by the Royal College of Surgeons began. That investigation concluded in spring this year and the outcome is now well known. When the investigation was launched, Sarah learnt that Mr Jabbar had raised counter-allegations against her. It was only last week that Sarah was given any information about those counter-allegations, which Great Ormond Street hospital has now confirmed were completely unfounded.
How terrible it must be for a surgeon doing their very best, working alongside a colleague with no animosity, and then discovering that there were problems. Sarah had to raise her concerns; it was absolutely the right thing to do, professionally and for the patients. She wrote to me about her experience of raising the alarm, saying:
“I have since been threatened with disciplinary action without proper basis. I feel sidelined and excluded in my work and I am exhausted. The impact of this stressful process on my health, family, reputation, and career has been profound. I feel greatly let down by the way I have been treated as a whistleblower.”
Three years into this ordeal, it is clear that hospitals cannot mark their own homework when it comes to whistleblowing concerns.
I want to raise with the Minister some points, not all of which are directly related to his portfolio. I hope that he and his civil service officials will take them back to the relevant Departments, as I ask him directly for a detailed response. An amendment is proposed to the Employment Rights Bill that would give further protection to whistleblowers; I hope it will be considered sympathetically or, if necessary, rewritten by the Government to make it work and deliver on that intention. I also hope that the Cabinet Office works hard to improve the situation across Whitehall. Its representatives appeared before us when I chaired the Public Accounts Committee, so we know that there are some bits of good practice, but a lot more needs to be done. I hope that the Government commit to making that a high priority.
I will not repeat the points that were made very well by my hon. Friend the Member for Stoke-on-Trent Central about the importance of the duty of candour, but I will say that we need that to be embedded in the system if we are to change the way these things work. I endorse the points made about the office for the whistleblower. Crucially, I hope that the Minister will talk to the Department of Health and NHS England. If we want to modernise our health service and ensure that patients are safe, we need to support brave people—like Sarah McMahon—who have had to go through the mill to raise concerns that have been proven to be very well-founded.
I will end with Sarah’s own words:
“Unless the safety system is radically reformed my advice to future colleagues facing this problem would be: ‘raise it, because you must, but do not expect to survive what follows.’”
What a terrible indictment of the system so far. I hope the Minister takes that message back to the relevant Departments.
Mrs Sarah Russell (Congleton) (Lab)
I thank all those who have spoken before me in such an informative manner and to my hon. Friend the Member for Stoke-on-Trent Central (Gareth Snell) for securing the debate.
I have advised numerous whistleblowers throughout my career. Some themes emerge from the experience that speak directly to the points raised by a couple of previous speakers about the impact on whistleblowers when they realise there is something seriously wrong in their organisation and they speak up about it. I have found, particularly in the NHS, that there is an institutional reluctance—and I think I can understand it. I think it is psychologically extremely difficult for people to accept that their department might be systematically failing or sometimes actively damaging patients, and the result is that they tend to turn on the person blowing the whistle and to ostracise them. What follows is an investigation into that person’s behaviour or conduct as relationships deteriorate, and often then a dismissal under the term “some other substantial reason”.
There are five potentially lawful reasons for dismissal, including misconduct, incapability and so forth. One is “some other substantial reason” for dismissal. That phrase is really a catchall for, “There is some sort of decent reason for sacking this person”, but the case law has developed in such a way that “some other substantial reason” for dismissal can just be an absolute breakdown of relationships between people who work together—and that is almost always the case where there is a whistleblower. The result is that we have a massive gap in our law, whereby people who have blown the whistle are systematically being dismissed for “some other substantial reason”.
One of the most effective things we could do within the scope of the current system would be to outlaw the use of “some other substantial reason” dismissals in a whistleblowing framework, so that if someone has blown the whistle, there cannot be a “some other substantial reason” dismissal. There would still be the ability to dismiss for misconduct if there has genuinely been misconduct, but in the situations I have seen, that has usually not been the case; it is just that people have fallen out.
I think there is scope to improve whistleblowing protections in the current system. We could do it through amendments to the Employment Rights Bill, which is making its way through the House. In the longer term—I appreciate that this is not currently fiscally viable—but we could look at extending legal aid to whistleblowers. We could extend to whistleblowers the legal aid protection available to people on low incomes for discrimination claims; that would be in the public interest and would nicely back up the duty of candour that we have been talking about introducing. We could also look at whether the suggestions being made by my hon. Friend the Member for Stoke-on-Trent Central could be linked to the fair work agency, and whether we could in due course extend the powers of that agency to examine this issue.
It is a terrible thing to advise whistleblowers, because they are so distressed—certainly one of the most distressed client groups I have ever come across. Whistleblowing is typically completely career-ending for them, and the results for many are terrible. We should look at whether our unfair dismissal legislation is well placed to handle such matters. I again thank my hon. Friend the Member for Stoke-on-Trent Central for raising this topic for debate.
Chris Bloore (Redditch) (Lab)
Thank you for chairing this debate, Sir Mark. I have learned a valuable lesson this afternoon: get in there early, because if you do not, the hon. Member for Strangford (Jim Shannon) and my hon. Friends the Members for Hackney South and Shoreditch (Dame Meg Hillier) and for Congleton (Mrs Russell) will make all the points that you had planned to far more eloquently. I have cut some of my notes so my speech will be brief, but I reaffirm many of the recommendations that they made.
I thank my hon. Friend the Member for Stoke-on-Trent Central (Gareth Snell) for securing this debate and for his chairmanship of the all-party group for whistleblowing. This is the right week to have this conversation, and I am glad that other Members have joined us. As someone who, in a previous life, was a councillor and represented a family affected by Hillsborough, I know all too well the damage that the lack of candour there sometimes is in public life can inflict on a family. I saw that family destroyed while fighting for justice. I now have the honour of representing a family deeply impacted by the Horizon scandal, and I have seen the damage that it has done to them.
When whistleblowers speak out, it is so often the nature of organisations and institutions to look internally to protect themselves, instead of looking for the root cause of the problem. One of the problems I have noticed too often is the lack of confidence whistleblowers have about speaking out. My inbox is currently full of people—whether they are in the NHS or other public institutions—writing to put forward concerns about the level of services being provided to members of the public, but all too concerned about what will happen to their job prospects and their families if they do not have the protections to speak out. Too often, whistleblowers are our last line of defence when processes and institutions fail. Too many brave men and women, in seeking to protect the public, have been badly failed by the laws in place in this country.
I share the confidence of my hon. Friend the Member for Stoke-on-Trent Central in the Government’s commitment to addressing that imbalance and making sure that people feel that they have the protections to speak out. I hope that the Minister, in his response, will be able to reassure us that the Government remain committed to those pre-election pledges to ensure that people who are prepared to risk everything to protect the public and the public interest will have the confidence to do so, not just because it is the right thing to do, but because—as we have so often learned, including during our brief time in this Parliament—it costs us an awful lot of money as a country to redress those problems when we fail. I apologise for the slightly short nature of my speech, but I thank you for the opportunity to speak today, Sir Mark.
Clive Jones (Wokingham) (LD)
It is a pleasure to be here under your chairmanship, Sir Mark, and I congratulate the hon. Member for Stoke-on-Trent Central (Gareth Snell) on securing the debate. The existing Public Interest Disclosure Act 1998 is simply not good enough; it is woefully inadequate in keeping pace with the modern workplace. For example, it does not cover all types of workers, such as members of the armed forces, volunteers and self-employed individuals. It forces whistleblowers to prove that they made a “protected disclosure” and that any retaliation they suffered was directly linked to their whistleblowing. That burden of proof can be very difficult to meet, as employers may mask retaliatory action as unrelated. Protection often requires whistleblowers to go through stressful employment tribunals, with limited remedies beyond compensation.
The inadequacies do not end there. The Act requires disclosures to be “in the public interest”, but that term is vague and has been subject to differing interpretations in the courts, creating uncertainty about whether specific whistleblowing cases are protected. There are insufficient provisions in the Act for emotional, financial or legal support for whistleblowers, leaving them vulnerable as they often face significant personal and professional risks after disclosing information.
That list of flaws within the existing law feels endless, so the Liberal Democrats are championing the need for reform. We support passing a comprehensive anti-SLAPP— strategic lawsuits against public participation—law to provide robust protection for free speech, whistleblowers and media scrutiny against lawsuits that seek to intimidate and silence criticism. We want to ensure that there is justice for the victims of scandals and prevent them happening in the future. We want the Government to establish a new office of the whistleblower, creating a new set of legal protections and promoting greater awareness of their rights. The Labour party did some positive work on that while in Opposition, so I would be grateful for the Minister’s views on the Liberal Democrat proposals and whether the Government will prioritise similar reforms.
I would also like to remind the Minister of the ask from my hon. Friend the Member for St Albans (Daisy Cooper) during an Opposition day debate last week. Please can he give an assurance that, if the people at the Department for Work and Pensions have information about maladministration of the service that they have witnessed, and they wish to come forward with that information, they will be protected as whistleblowers?
Gareth Bacon (Orpington) (Con)
It is a pleasure to serve under your chairmanship, Sir Mark, and I congratulate the hon. Member for Stoke-on-Trent Central (Gareth Snell) on securing this debate. I thank the hon. Members for Wokingham (Clive Jones), for Strangford (Jim Shannon), for Hackney South and Shoreditch (Dame Meg Hillier), for Congleton (Mrs Russell) and for Redditch (Chris Bloore) for their contributions this afternoon.
I welcome the fact that so many Members 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 recrimination. Whistleblowers do absolutely crucial work to expose wrongdoing and ensure accountability. Forty-three per cent of economic crimes are highlighted by whistleblowers, and workers are often the first people to witness any type of wrongdoing within an organisation. Information that workers may uncover could prevent wrongdoing that may damage an organisation’s reputation or performance, and in extreme circumstances, even save people from harm or death.
For authorities tackling corruption, fraud and other forms of crime, whistleblowing is a crucial source of evidence, as those activities and their perpetrators can often be exposed only by insiders. That was keenly felt during the height of the covid-19 pandemic when the Care Quality Commission and the Health and Safety Executive recorded sharp increases in the number of whistleblowing disclosures that they received; and during the Horizon scandal, when a whistleblower was featured in a BBC “Panaroma” documentary in 2015, as has been mentioned, which helped to expose the truth, contributing to the successful postmasters’ legal case in 2019.
The UK’s whistleblowing framework was introduced through the Public Interest Disclosure Act. It was intended to build openness and trust in workplaces by ensuring that workers can hold their employers to account and then be treated fairly. It provides a route for workers to make disclosures of wrongdoing, including criminal offences, the endangerment of health and safety, causing damage to the environment, a miscarriage of justice or a breach of any legal obligation.
The previous Government recognised that there was weakness in that framework and made numerous attempts to improve it. In 2013, the Government published a wide-ranging call for evidence on the effectiveness of the framework, and in 2014, set out a plan of legislative and non-legislative means to improve it. That plan included extending protections to student nurses and midwives, regularly updating the list of prescribed persons and introduced a requirement of prescribed persons to produce an annual report on whistleblowing disclosures that they receive.
Moreover, under the guidance of my hon. Friend the Member for Thirsk and Malton (Kevin Hollinrake), the previous Government launched a review in March 2023 of the whistleblowing framework. That review examined the effectiveness of the framework in meeting its intended objectives, which are to enable workers to come forward and speak up about wrongdoing and to protect those who do so against detriment and dismissal. The initial fact-finding element of that work was completed by Grant Thornton in January this year, as I think the hon. Member for Stoke-on-Trent Central mentioned in his opening speech. The Government response and the recommendations were awaited, and that work was yet to be completed before the election was called.
We on the Opposition Benches welcome the Government’s decision to strengthen protections for whistleblowers, including by updating protection for women who report sexual harassment at work. We will support the related measures in the forthcoming Employment Rights Bill. As Protect set out, this will
“send a clear signal that anyone who has been sexually harassed, or witnessed it, can raise their concerns through whistleblowing channels and will be protected from being victimised or dismissed if they do so.”
The Government have not yet published a response to the review of the whistleblowing framework. The review would provide an up-to-date evidence base on whistleblowing, allowing the House to effectively scrutinise the Government’s proposals. Will the Minister commit to publishing that review and, if so, when?
The Parliamentary Under-Secretary of State for Business and Trade (Justin Madders)
It is a pleasure to see you in the Chair this afternoon, Sir Mark. I start by offering my triple congratulations to my hon. Friend the Member for Stoke-on-Trent Central (Gareth Snell): first, congratulations on returning to this place—it is good to see him back—secondly, congratulations on securing the debate; and thirdly, congratulations on being appointed chair of the all-party group for whistleblowing, which I am sure he will lead with distinction. We have heard a number of very important and passionate contributions today. I will do my best to sum them up, but it is fair to say that we are looking forward to working with all Members across the board on this very important topic.
Before addressing some of those points, I will start by discussing the current whistleblowing framework. As Members have said, it is essentially about employment protection, and that is the reason why I am here, as the Minister for Employment Rights, to respond on the Government’s behalf. The protections were introduced by the Public Interest Disclosure Act 1998, which amended the Employment Rights Act 1996.
The legislation was intended to provide a route for workers to make disclosures of information that they reasonably believed were in the public interest and tended to show a relevant failure or someone covering up a relevant failure. Those relevant failures could include criminal offences, the endangerment of health and safety, causing damage to the environment, a miscarriage of justice or a breach of any legal obligation.
Disclosures need to be made in line with the requirements of the legislation, usually to a worker’s employer or lawyer, or a prescribed person. As Members may know, there are more than 90 different prescribed persons under the legislation to whom relevant failures can be reported. They are usually regulators, such as the Equalities and Human Rights Commission and the Financial Conduct Authority. I will not go through every single prescribed person today, but most have a statutory obligation to report on the disclosures that they receive and to publish the reports annually.
Since the reporting requirements came into effect, there has been an increase in the number of disclosures that are made to prescribed persons. The volume of disclosures is around 50,000 a year and, as we can probably tell from the contributions today, they are highly concentrated in the health, public administration and financial and insurance sectors. The reports summarise the actions that a prescribed person has taken, but there is variation in how that information is protected. As we have discussed, workers have, under the law, a right not to be dismissed or subjected to a detriment as a result of making a protected disclosure, and there is recourse to an employment tribunal. The number of employment tribunal complaints under the jurisdiction for protected disclosure in each year since 2017-18 has increased, reaching 3,128 in 2020-21. That is the latest year for which a full dataset is available.
But enough of the overview. We need to talk about some of the important contributions that we have heard from Members. This debate is really about how whistleblowing affects individuals. We know that it can fundamentally and irrevocably damage, indeed end, that relationship with the employer. We know there are reasons why people will not speak up: some are in senior positions and fear for their career or their reputation, some may be at the other end of the spectrum and fear insecurity and power imbalances that may make it difficult to speak up, and some may have a link to the organisation but may not be covered under the legislation.
I would like to make a few comments about the contributions in this debate. I am grateful to my hon. Friend the Member for Redditch (Chris Bloore) for contributing. I am sure if he had come in earlier, his speech would have covered many of the points that had already been made, but that is the lottery of Westminster Hall, and I am sure there will be many opportunities for him to speak earlier in other debates. He referenced a number of Members’ speeches.
It was particularly pleasing to hear from my hon. Friend the Member for Congleton (Mrs Sarah Russell), who brought her professional experience to bear today. She made an interesting suggestion about the use of “some other substantial reason” as a potentially fair reason for dismissing someone in whistleblowing cases. We probably need to look at the use of “some other substantial reason”, as it is likely that it gets overused. However, as she will be aware, the current Employment Rights Bill has enough in it for us to be getting on with. She made an interesting suggestion in respect of the potential use of the Fair Work Agency here, and that is something we will bear in mind.
The Liberal Democrat spokesperson, the hon. Member for Wokingham (Clive Jones), highlighted some of the legal issues under the current legislation, including the question whether someone is within scope, the hurdles that they have to overcome to qualify for protection and the public interest test. Those are all things that we want to look at in a broader sense, if we get around to a review of the legislation. I take his point about officials in the Department for Work and Pensions, but I hope that this Administration would want to be an exemplar of best practice, and we would want people to feel confident that they can speak out if they see a wrong or an injustice.
It was a pleasure, as always, to hear from the hon. Member for Strangford (Jim Shannon), in his customary place—I may have swapped positions, but he remains a permanent fixture over there. He spoke very movingly about his friend Brian and the great personal cost of his efforts to expose wrongdoing. Brian’s resilience came through in the hon. Member’s description of his fight. As he said, it was about doing the right thing, and his message was that,
“you are not alone when you do the right thing.”
We should be sending that message to anyone who thinks about blowing the whistle. Of course, the matter is devolved to Northern Ireland, but that message should ring out across the whole of the United Kingdom and Northern Ireland.
My hon. Friend the Member for Hackney South and Shoreditch (Dame Meg Hillier) raised some specific issues about the Department of Health and Social Care and her constituent Sarah McMahon. I am sorry to hear of the three years of personal difficulties Sarah McMahon has suffered as a result of doing the right thing. Unfortunately, too many organisations make it very difficult for individuals who blow the whistle. I understand that the Department for Health and Social Care has concluded a review of the statutory duty of candour, and it has issued a call for evidence, which I think is ongoing. I take her message of frustration about the length of time that these things take, and I will pass that message back to the Department.
However, my hon. Friend made the important point that some organisations have got it right and encourage people to speak up when they see a wrong. There are some very good examples, including the aviation industry, which is a particular exemplar of that. It is the standard that we should be aiming for.
My hon. Friend the Member for Stoke-on-Trent Central, who opened the debate, said that the law looks at how things happen after the disclosure, and always through the prism of an employment relationship. That was a good analysis of where we are and perhaps why there are shortcomings in some of the legislation. I agree that this is about the law giving people the confidence to speak up. I am sure we will return to some of the things we hope to do on that.
Gareth Snell
I ask the Minister and his colleagues across Government to look at the way we fund and support our regulatory bodies. Often, the failure reported by a whistleblower would have been prevented from happening in the first place by a properly funded and resourced regulator. As much as anybody else, he will know that times are tough and budgets are tight, but investment in the regulatory framework early doors could help to save money and lives, and prevent people from having to put their own homes on the line to do the right thing.
Justin Madders
My hon. Friend makes a very fair point. I suspect that a week ahead of the Budget we will not get the kind of investment he would like to see. He talked about the legislation, focusing on existing employment relationships and the broader ambit of employment. The legislation was probably framed in that way in the first place because that is where the biggest power imbalance lies: between an employer and their employee.
We can consider how we would broaden this out, but we will bring in particular measures with our Employment Rights Bill. Hon. Members will be aware that Second Reading took place last night, when we made some specific announcements on our overall package. The Bill is the biggest upgrade in workers’ rights in a generation, and in it we will address specific issues about whistleblowing on sexual harassment. The Trades Union Congress states that 58% of women have been sexually harassed at work. That is a staggering, appalling figure that must be tackled, and it is one of the reasons why we want to improve people’s ability to ring the alarm bell when sexual harassment occurs.
The Bill will require employers to create and maintain workplaces and working conditions free from harassment, including by third parties. It will strengthen the legal duty of employers to take all reasonable steps to prevent sexual harassment before it starts, and it will enable regulations to specify steps that an employer must take to protect their employees from sexual harassment to ensure that effective steps are taken. It also includes protections for whistleblowers and will make clear that sexual harassment can be the basis for a protected disclosure, which is one of the most important steps we can take to make workplaces safer. Workers who make a protected disclosure will then have legal recourse if their employer subjects them to a detriment for speaking up.
My hon. Friend the Member for Stoke-on-Trent Central mentioned, as did several other Members, the possibility of an office for the whistleblower. There were a number of suggestions about the potential remit and role that it could have. Clearly, the cost and precise functions and powers of that would need careful consideration, particularly in how it would relate to current regulators. The point he made about the resources of regulators is relevant to that. There would also have to be some consideration given to how it would exist as an independent body from Government. I must disappoint my hon. Friend the Member for Congleton by saying that the pledge to create the office did not make it into our final manifesto, but that is not to say we are ruling it out forever and a day. We will consider it as we look at a broader review of the whistleblowing framework.
On that point, I will address the remarks made by the shadow Minister, the hon. Member for Orpington, about the review initiated by the previous Government, which was intended to assess the effectiveness of the whistleblowing framework against its original objectives. As he rightly pointed out, that review was not released before the general election. It certainly does not seem appropriate for us to let that work go to waste; I will talk to my officials about how and when we can release that information, but I see no reason why we should not do so. It will be a starting point for further work in this area.
The number of issues raised today shows that the appetite for reform in this area is much broader than the review commissioned under the previous Government recognised. Of course, other measures are due to be enacted in the next 12 months, but we can do more to ensure people feel confident when they speak out.
As several Members said, the King’s Speech made clear that we will deliver on our manifesto commitment to implement a Hillsborough law to introduce a legal duty of candour on public servants and authorities. The Prime Minister made clear that that Bill will enter Parliament before the next anniversary of the Hillsborough disaster. We believe it will be a catalyst for a change of culture in the public sector by improving transparency and accountability where public services have failed. It will help to address the unacceptable defensive culture that is prevalent across too much of the public sector. It has been said several times that the NHS is one of the worst examples of that; certainly, from my experience, there is a hard focus on trying to justify actions, rather than get to the root of the complaint.
Bishop James Jones’s report made it clear that those things have to change, not just in the NHS, but across the whole public sector. That Bill will be an important starting point in changing the culture both in the public sector and across the country. We all want it to improve so that whistleblowers have the confidence to speak out and have the assurance that, if something happens to them as a result, they will be protected and supported.
Gareth Snell
I thank my hon. Friend the Minister for his summation. I will make a couple of final points. I absolutely understand that the office of the whistleblower did not make its way into our manifesto, but I say to the Minister that the circumstances that led us in opposition to support to such a suggestion have not changed. Although I appreciate that we have had an election and Governments have changed, even an undertaking to meet those of us who think this proposal is part of the solution, to discuss it and go through it, would be welcome—
Gareth Snell
The Minister is nodding. I hope Hansard will record that fact for the purpose of my follow-up letters.
The Minister is right: I have no doubt that the Government will take seriously the protections that whistleblowers need, and that will require development and the evolution of our current protections under PIDA. That needs to be looked at. The opportunity to make the case would be welcomed. not just by me, but by those who have been campaigning on this issue for many years.
We could have spent many hours debating this subject. Members from all parties have cases in their inboxes involving individuals speaking out and coming to them with concerns about organisations, actions and activities that they have seen and are worried about. People can come to Members of Parliament; we are defined in legislation as people such issues can be reported to, and we have a duty to understand our own responsibilities and what we can do to help to foster and bring about the changes that are being raised by individuals who are brave enough to put their head above the parapet.
We have had only 90 minutes today. The contributions have been excellent, but I am sure that lurking in our inboxes will be cases of individuals who are just looking for help. One thing we should take away from this debate, which is timely as it is Whistleblowing Awareness Week, is that Members of all parties have a genuine desire to make it easier for whistleblowers to blow the whistle, and to make it better for those who come forward so that they do not suffer detriment and are not penalised for having done the right thing.
As my friend the hon. Member for Strangford (Jim Shannon) rightly pointed out, we must send the message to those people that they are not alone, and that if they speak up, stand up and do the right thing, there are people in this place and around the country who will have their back, ensure they get the justice that they deserve and prevent the harm that could be done. I thank all Members for taking the time to participate in this debate.
Question put and agreed to.
Resolved,
That this House has considered protections for whistleblowing.