Enterprise Bill [HL]

Debate between Lord Wills and Lord O'Neill of Clackmannan

Tuesday 15th December 2015 Lords Chamber

[Lord O'Neill of Clackmannan (Lab)]

I thank the noble Baroness for not putting something in the Bill. At one stage, the noble Lord, Lord Aberdare, and I supported an amendment concerning the issue of retention and the means of dealing with it. She told us that, if it were withdrawn, she would undertake to establish a review. The manner in which the review has been set up gives us great confidence that it will be conducted in a rigorous and fair way, and we look forward to it proceeding in due course. I thank the noble Baroness not for putting something in the Bill, but for giving us what I hope will be an adequate substitute as a means to address one of the most vexed issues of payment. It was not covered by the Bill, but will now be within sight of being properly and speedily remedied—many years too late, sadly, but now ready to be dealt with in an effective manner.

[Lord Wills (Lab)]

My Lords, my contribution to the Bill was restricted to its very end and the clauses relating to public sector exit payments and what are, I hope, the unintended consequences of protection for whistleblowers. Throughout the discussion of the clauses—and, indeed, of the Bill—the Minister demonstrated her characteristically firm grasp of the issues, constructive approach to the amendments and courteous and considered approach to your Lordships’ House. I am grateful to her and all her officials for the meetings and conversations that we have had on my amendments, and congratulate them on shepherding the Bill successfully to this stage.

Commanding, constructive, courteous and considerate the Minister may be, but I fear that she is not convinced by the arguments that I and others have put forward for the need to improve the legislation better to protect whistleblowers. I fear that the public and Ministers will come in time to regret that. It is common ground that the public interest is best served by creating an environment which encourages genuine whistleblowers to come forward—and to do so in a timely manner. Such whistleblowers often take considerable risks with their careers and livelihoods to come forward in that way. It is in the public interest to provide robust legal protection for those courageous individuals, and uncapped damages are an important part of such protection, because they reassure whistleblowers that they will not be bereft of adequate means to support themselves and their families if they make a disclosure in the public interest.

We did not table an amendment at this stage because we know that the Government believe that regulations will offer sufficient protection to whistleblowers—but that this should, in some way not yet clear, be restricted by the need to protect the public purse from claims made on it by those falsely claiming the protection of public interest disclosures. The Government’s approach appears to be that whistleblowers will not be able to breach the cap unless they can demonstrate that they have made disclosures genuinely in the public interest, and the Treasury will be the judge and jury of that.

How many of those considering making disclosures in the public interest will feel reassured that their ability to support their families will be protected by a judgment by the Treasury that they deserve more money? How many Secretaries of State would be reassured by a plea to trust the Treasury that it will be all right on the night, they need not worry about their department’s budget, because if the Treasury judges, in time, that their case is meritorious, they will, in the end, get the money they need? How many have been reassured by that prospect? Paying out as little money as it possibly can get away with is what the Treasury does, and relying on a judgment by the Treasury or any Minister after a whistleblower has already risked their career and livelihood to make a public interest disclosure is never going to be reassuring to someone taking such risks. Daniel Kahneman, the Nobel laureate, once said:

“To be useful, your beliefs should be constrained by the logic of probability”.

The probability in this case is that, in the foreseeable future, there will be terrible abuses of power and catastrophic cases of maladministration and corruption, just as there have always been in the past, and that these could all have been prevented or at least mitigated, as many could have been in the past. Hillsborough and the abuse of MPs’ expenses, as well as far too many cases of child abuse and failures in the NHS, for example, all bear witness to that.

The public need these courageous individuals to reveal wrongdoing by their employers, in the public interest, and the Government need to persuade them that they are going to be so protected. The Government could have taken the opportunity given by this Bill to provide better protection for such courageous whistleblowers. Instead, they have weakened it through the confusion we talked about in Committee and on Report about how the public sector exit payments cap will apply to whistleblowers. There needs to be greater clarity, and the burden of proof should be reversed so that it is clear that all public interest disclosures will merit breaching the cap on public sector exit payments, unless it can be shown that disclosures were not in the public interest.

The Minister and her officials have kindly agreed to meet me, my noble friend Lady Hayter and the noble Lord, Lord Low, whom I also regard as my noble friend, to discuss these issues. I hope that they can provide us with greater reassurance then. Otherwise, I fear that when the next scandal happens over a failure to protect the public—as, sadly, it is bound to do—and the resulting inquiry finds that inadequate protection for whistleblowers is part of the reason for that failure, as it probably will, we may all regret that we did not seize this opportunity to do more to protect whistleblowers.