Prescribed Persons (Reports on Disclosures of Information) Regulations 2017

Lord Palmer of Childs Hill Excerpts

Thursday 30th March 2017 Lords Chamber

I am not a lawyer and maybe it needs a lawyer’s brain to explain my third and final point which is that the formulation of the “Extent and Territorial Applications” in this particular SI is unusual in the sense that the extent of the instrument is Great Britain and the territorial application of the instrument is Great Britain. That means, of course, Scotland, England and Wales but not Northern Ireland. Can I have an assurance from the Minister on the question of how this important issue is to be taken forward in Northern Ireland? It seems to be left uncovered by the statutory instrument. I assume that other arrangements, perhaps by the Assembly when it gets going again, will be carried forward but I would be grateful for some information on how that is going to happen. Whistleblowing is an important area. It should apply to all parts of the United Kingdom. In fact, there may be reasons why it is even more important in Northern Ireland. I look forward to hearing from the Minister on that point.

[Lord Palmer of Childs Hill (LD)]

My Lords, I thank the Minister for her detailed explanation. I am slightly fresher because I did not have a late-night assignment in this House last night and I want to try to clear up some confusion in some of the points that she made.

The Minister talked about annual reviews of the list of prescribed persons. As far as I can see, and this is reiterated within the statutory instrument that we are debating today, she was referring to the 111 prescribed persons listed in the Public Interest Disclosure (Prescribed Persons) Order 2014. That does not really tie up with the idea of an annual review, so I find that confusing. Can the Minister also explain how consistency will be maintained, assuming there are still over 100 organisations? It would be so much easier for anyone looking at this to have those 100 or so organisations actually listed in the statutory instrument rather than people having to look back to other legislation for them. As the noble Lord has just said, we are not all lawyers and it should be on the face of the statutory instrument. I find it very sad that it is not. Can the Minister say whether there is going to be any government action to compare these various bodies and how they report? For someone who is a professional it is a fact of life that whatever the regulations say, if you have numerous organisations, they will have different attitudes to how they report.

I also understand that the annual reports will not require the disclosure of any information which could identify the worker who made the disclosure—that is absolutely right. However, I query, and ask the Government to reconsider, that the same anonymity applies to the employer about whom the disclosure is made if it is then found that further action was taken. I can see that there should be anonymity for both employer and employee if there is no further action, but if the employer is found guilty—to use the word in its general sense—why should that person or organisation not be named? I hope that the Minister will be able to answer my queries.

[Baroness Buscombe]

My Lords, I am rather glad that the noble Lord, Lord Stevenson, referenced our late hour last night, because I am not sure that I will be able to answer all the questions that have been put to me this morning. However, I will do my best to answer at least some of them.

First, on the question about 1 April, the reason for that date is the timing of the reporting period, which is 1 April to 31 March each year. The regulations do not impact on prior business, and prescribed persons whom it impacts on have been advised. I hope that that makes sense.

On Northern Ireland, bodies operating in devolved fields that are prescribed persons for the purposes of Great Britain employment law are included in the reporting duty and will be required to publish reports on their own websites. This does not affect their existing lines of accountability. I can confirm that employment law is devolved in Northern Ireland.

In response to the noble Lord, Lord Palmer, perhaps I will come back to anonymity across the board in a moment. Sorry, I am advised that it is probably better if I write to the noble Lord, Lord Palmer, with respect to whether there is anonymity for the employer if guilty.

It might be helpful, with respect to both noble Lords, if I made some reference to the question of blacklisting, which is important to this. It is important that we address the issue of whistleblowers becoming blacklisted as a result of making disclosures. The Government have taken action to deal with serious offences of blacklisting relating to trade union activity that were uncovered in the past. Among the actions taken, the Government have increased the penalty that the Information Commissioner’s Office can impose for serious breaches of the Data Protection Act 1998 to £500,000. Data protection law is undergoing reform as a result of the general data protection regulation, which takes effect from 25 May 2018. The ICO’s fining powers will substantially increase as a result.

We are also bringing forward regulations in the health service to introduce protections for job applicants who have been whistleblowers, and there is a similar power in the Children and Social Work Bill for the field of children’s social care. We think it is right that those who work with vulnerable people need to be able to report concerns about what is happening in their workplace without fear of reprisals—I think that all noble Lords in this House will know of people who have experienced exactly the situation we are determined to deal with. Importantly, if they make a protected disclosure, they should be protected themselves from being blacklisted and unable to find a new role.

We have seen limited evidence that this is a problem with regard to not protecting whistleblowers and blacklisting in other sectors of the economy. Much of the anecdotal evidence has been concentrated in one or two fields where there is legislation in progress. Any new regulation would have an impact on employers, so we need to take care that it is appropriate and proportionate to the aim that it seeks to achieve.

The Information Commissioner intends to undertake a call for evidence later this year to help develop her understanding of the underlying issues, building on the ICO’s own observations from its investigations of blacklisting complaints. I could go on, but with regard to whether the Government will introduce a new criminal sanction in employment law for the blacklisting of job applicants, most employment law is enforced through civil sanctions. However, if the ICO finds a breach, it can also issue an enforcement or information notice and non-compliance with an ICO enforcement or information notice, where this is in place, is a criminal offence.

I am conscious that I have not been able to answer all the questions. I hope noble Lords will accept that I will write to them on any other points. In recent years the Government have undertaken significant reforms to the whistleblowing framework, working to improve the environment for whistleblowers. I know that noble Lords have paid close attention to these developments and indeed have shaped them in a number of ways, for which I am grateful. I am very grateful for the full support of the noble Lord, Lord Stevenson, on what we seek to achieve here.

The duty will increase confidence in the actions taken by prescribed persons through greater transparency about how disclosures are handled—of course, the balance between transparency and anonymity is a very difficult one to strike. The measure is also intended to drive up consistency in the way prescribed persons handle whistleblowing disclosures. By making a public interest disclosure to a prescribed person, a worker will qualify for protection from detriment or dismissal from work if the individual reasonably believes that the information disclosed is substantially true and that the matter falls within the remit of the prescribed person’s responsibility.

Once prospective whistleblowers are able to see that action has been taken as a result of previous disclosures to prescribed persons, I hope—and I am sure all noble Lords will too—that more employees who have witnessed malpractice at work will have the confidence to come forward and report it to the relevant authorities. I commend these regulations to the House.