Whistleblowing

Debate between Andrew Mitchell and Norman Lamb

Wednesday 3rd July 2019 Commons Chamber

[Norman Lamb]

I thank the hon. Gentleman for his support in pursuing the Dr Day case, and I completely agree with the points he makes.

Sir Robert Francis, in his 2015 “Freedom to Speak Up” report, spoke about how NHS whistleblowers who had given evidence to him overwhelmingly experienced negative outcomes, and he talked of a hostile culture of fear, blame, isolation, reprisals and victimisation—in our NHS, for goodness’ sake.

Those stories continue. The impact on individuals can be devastating and profound. They can be ostracised, abused and disadvantaged in their career, with dire consequences for their mental health. One nurse who tried to expose wrongdoing said, “I would never put myself in that position again. I would rather leave.” What a damning indictment of how we treat people in our treasured and cherished public service.

[Mr Andrew Mitchell (Sutton Coldfield) (Con)]

The right hon. Gentleman and I have both worked on the general issue of whistleblowing. I pay tribute to his leadership on the matter, along with that of my hon. Friend the Member for Stirling (Stephen Kerr), who I hope will catch your eye later, Mr Deputy Speaker.

The right hon. Gentleman is making some very good points, and we know two things. First, we know there is strong concern across the country about how whistleblowers are being treated. We see it in the west midlands, and he is articulating the point. Secondly, we know whistleblowers help to ensure proper accountability and transparency. In my view, the work that he and others are doing on whistleblowing has not received anything like the amplification it requires.

[Norman Lamb]

I totally agree with the points the right hon. Gentleman makes, and he makes them well. I will come on to discuss them in a moment.

--- Later in debate ---

[Norman Lamb]

I totally agree with the right hon. Lady. Sir Robert Francis, who did the report in 2015, recommended the introduction of “freedom to speak up champions” in the NHS, and that has happened. However, this is an administrative process within trusts that, I am afraid, simply has not worked—that is the brutal lesson that we have to learn.

For those who are covered by the legislation, the law does nothing to enable a concerned person to speak up in the first place. For example, the law is silent on standards expected from employers, and it offers only inadequate protection after the event—after the person has been destroyed by a cruel organisation. The individual who then tries to pursue their rights under the legislation is too often faced by highly paid lawyers and is pressured into non-disclosure agreements, which, as I indicated, can result in wrongdoing never being exposed. Indeed, we know that the terms of some non-disclosure agreements are unlawful because they seek to shut up the individual and to stop them speaking out, even when a crime is involved.

Only a tiny percentage of cases that are pursued to the tribunal actually end up with a decision of the tribunal. To succeed, someone must show that the reason—or, if there is more than one reason, that the principal reason—for a dismissal is that the employee made a protected disclosure. They therefore open themselves up to false claims that other reasons existed. If the tribunal decides that there were other reasons, either the person’s claim is dismissed or their compensation is reduced.

There is no full definition of the range of disclosures that are covered by the legislation, so the protection is completely uncertain. Disclosure has to be to a prescribed person, but what happens if someone does not know who to report their concerns to? They could easily find themselves entirely unprotected—for trying to do the right thing.

[Mr Mitchell]

Will the right hon. Gentleman give way?

[Norman Lamb]

I am conscious that I am trying the patience of the Deputy Speaker, and I need to get to the conclusion of my remarks.

The brilliant organisation Protect highlights the fact that a number of laws, such as in the utility sector, make it an offence to disclose certain information and include no public interest defence exceptions for whistleblowing. Even if there is awful wrongdoing, the person is prevented from speaking out, because they would commit a criminal offence. That surely has to change.

The brutal truth is that brave people who do society a service by exposing wrongdoing are not adequately protected, and many have no protection at all. After Gosport, I met the Prime Minister and made the case for reform. I explained to her that these are life or death situations in many cases. I have heard nothing from the Prime Minister at all since then, and that was last summer. It is time for a fundamental review by the Government and for new legislation. Such a review needs to listen to all the interested parties—to the all-party group on whistleblowing, to Protect and to Compassion in Care, which has set out proposals as part of what it calls Edna’s law. All must be involved, and we must look at international best practice.

The all-party group has a report due out soon. It follows a comprehensive survey, which included getting the views of very many people who have tried to whistleblow, and it will offer vital evidence to the Government. It will propose an office for the whistleblower, which could be of extremely powerful value in supporting people and would be a centre of excellence, providing guidelines to employers, monitoring activities and providing support, advice and training to members of the public, public institutions, private sector bodies and so on. It is a very important proposal.

I want a commitment from the Minister to undertake a thorough review, because it is long overdue. I also want a commitment to ensure that if the UK leaves the EU, it will at least meet the standards of the proposed new EU directive and preferably go much further. The UK was a pioneer, but the legislation is flawed and inadequate. New legislation to deliver high standards of governance in the public and private sectors is long overdue. We need safe space for brave people to do the right thing; effective mechanisms to hold people to account for wrongdoing that is uncovered, including potential criminal sanctions; and effective compensation and support for those who suffer as a result of speaking out.