Enterprise and Regulatory Reform Bill

Debate between Lord Wills and Lord Marland

Monday 10th December 2012 Grand Committee

[Lord Marland]

Again, we are extremely sympathetic towards and supportive of each other. It is not just the Cross Benches, the Labour Party and the Liberal Democrats who are keen to get this right but the Conservatives as well. I reiterate my thanks to the noble Lord, Lord Touhig, and Public Concern at Work, with which we are working very closely on this issue. I also thank the noble Lord, Lord Wills, for his input, even though we have not had the pleasure of discussing this subject outside this Room—something that I should like to do in future. I am jolly glad that we included the NHS provision in the previous amendment, because some progress seems to have been made there in view of some of the absolutely ghastly stories that have been referred to.

My noble friend Lord Brooke of Sutton Mandeville brought up a very important point. I am told that under the Interpretation Act “single” means “plural” when necessary, so I do not think that we would need to amend that in the amendment.

I have had wide-ranging discussions with the noble Lord, Lord Touhig, and Public Concern at Work across the whole piece, and those discussions have covered Amendments 23 and 23F, which we will be coming to in a few minutes. We are very conciliatory on all this, and on Amendment 23F, in particular, both parties have formed a set of words to deal with the issue of good faith and so on. I think we have found satisfaction with Public Concern at Work and with the noble Lord, Lord Touhig, so perhaps I may look at the issue as a whole.

We need to be careful when going down this route with Amendments 22 and 23. The truth is that the absence of vicarious liability and whistleblowing is not a loophole because there is legislation that provides for it, and it provides for both the employer and the employee. I am struck, as I always am, by the point made by the noble Lord, Lord Borrie, about the employee having protection as well as the employer. That is fundamental. Indeed, they would both be protected under the Protection from Harassment Act 1997; that is the legislation that they would return to in order to claim their rights. Therefore, they have the right protection in this area. It is a strong law that, sadly, has not encapsulated all the whistleblowing issues, but nothing is ever entirely encapsulated. However, whistleblowers have an absolute right and this amendment would put in another level of protection, which is not in the Bill because it already exists.

We should be looking at improving the guidance on this issue. I have instructed my officials to look at the guidance that we are putting on the government website to show where the rights of recourse are and what rights the employer and the employee have under the interpretation of the Protection from Harassment Act. This will be on our gov.uk website. On the basis that we will have an ongoing discussion between now and Report, I hope that the noble Lord will feel confident about withdrawing his amendment for the time being.

[Lord Wills]

Can the Minister clarify something for me? I am very grateful for his openness and willingness to carry on a discussion about this but I should be grateful to know the Government’s position on what Lord Justice Elias said in the Manchester case, which we have heard about. I accept that it is a qualified statement but he said he accepted that the claims lawyers,

“may be right to say that if the Tribunal decision is allowed to stand, it means that on one view of the matter whistleblowers are inadequately protected. If so, any remedy must lie with Parliament”.

On the facts of that case, is it the Minister’s view that whistleblowers are or are not inadequately protected?

[Lord Marland]

I do not have a view because I do not have enough knowledge of the subject. As the noble Lord rightly said, he is quoting a small piece that I am unable to form an opinion on because I do not have enough evidence to support one view or another. However, I shall be happy to respond to the noble Lord on that issue. It is a perfectly reasonable question but it is too specific for me at the moment, I am afraid. I would need to take legal advice on it because I am not qualified in that area. I know that that is not a satisfactory answer but I hope that the noble Lord, Lord Touhig, will withdraw his amendment.