Protection for Whistleblowing Bill [HL]

Lord Browne of Ladyton Excerpts

Friday 2nd December 2022 Lords Chamber

[Lord Browne of Ladyton (Lab)]

My Lords, it is a privilege to follow the noble Baroness, Lady Altmann, and I commend her comprehensive and detailed speech. She gave a lot of examples and good reasons for supporting the Bill in the name of the noble Baroness, Lady Kramer. I congratulate her on achieving a Second Reading, and I commend her and the all-party parliamentary group for their tireless work and persisting with this objective. Maybe the noble Baroness will be lucky enough on this occasion to persuade the Government that this path forward is the appropriate one.

My intention in contributing to the debate is not to share a lot of anecdotes from my experiences as both a parliamentarian and a lawyer in whistleblowing cases. On reflection, given that I have been a “relevant person” for a significant part of my life, I am surprised at how little there is on whistleblowing. My concern about the current state of affairs is the irrelevance and ineffectiveness of the processes and the available legislative structure.

Late yesterday evening, I was trying to work out in my head what order I would put the various facts I had collected in anticipation of speaking today. About half past 10, I decided that I had had enough of that, and I put the papers aside and switched on the television. I heard Kirsty Wark say: “A ‘Newsnight’ investigation reveals a culture of fear in one of England’s biggest hospital trusts, where doctors tell us their warnings about patient safety are met with disciplinary action”. I thought to myself, “Well, if I watch this programme, I may get some insight into how this current system works”, but I was disappointed.

The item, the product of a two-month investigation involving a considerable number of BBC journalists, it would appear, took up about 15 minutes of the programme and included parts of interviews with former and current leading clinicians and the local Member of Parliament. The story, I note, led this morning’s BBC News. I have no intention of engaging your Lordships with the detail of the reported investigation or indeed the deeply worrying claim that in the last 10 years the trust has referred 26 of its doctors to the GMC, but in not one of these cases has the GMC taken any further action. I raise it today because of what we can infer about the effectiveness of the current legislative protection, the Public Interest Disclosure Act 1998, in providing adequate, never mind comprehensive, protection to whistleblowers and the public.

In last night’s programme, the word “whistleblower” was used only once and that was in the presentation’s peroration. It is more present in today’s reporting, but in neither the written reporting today or the BBC’s reporting night was any reference made to the current legislative protection, the Act or indeed any regulator whose attention was brought to this matter and who caused it to be investigated. In fact, it seems that, as a case study it is compelling evidence of not just the ineffectiveness but the irrelevance of the current law.

On ineffectiveness and irrelevance, when previous iterations of this Bill were brought before your Lordships’ House, the argument was that establishing the office of the whistleblower, as this Bill proposes, would duplicate the work of existing regulators. I understand the importance of clear lines of accountability that are not blurred by a regulatory body with overlapping functions or remits, but I would like to know what the regulators actually do. Surely, the onus is on those who make this argument to produce the data showing that we will be disturbing a system that already works. I cannot find that data anywhere. Probably the only question I will put to the Minister is: does he have the data on the number of cases that pass through the regulatory system, and the impact of that? If that data shows what I suspect it does—from anecdotal evidence only—then this process is ripe for complete restructuring. It does not work at anything like the scale it ought to because of the level of wrongdoing going on in all of the spaces where it should work.

In the few seconds I have left, I want to share one experience with your Lordships. As a former Secretary of State for Defence, I am often approached by people who want me somehow to impact the MoD. I mostly have to tell them that I am unable to do that, but I do still have some contacts there. I want to raise the issue of whistleblowers who have signed the Official Secrets Act. I have heard of cases, which for obvious reasons I will not say very much about, of people in just that position who have repeatedly been warned against taking their concerns outside their employment due to their obligations under that Act. The examples of abuses and corrupt and unethical behaviour reportedly include ones that would be considered serious in other environments, including cases of serious sexual violence. These are entirely inappropriate things to do, but people are being intimidated regularly and warned against taking such cases forward, just because of what they have signed in the past. This should not stop them doing it, but it is being deployed to do so.