Office of the Whistleblower Bill [HL]

Baroness Kramer Excerpts

2nd reading
Friday 25th June 2021 Lords Chamber

Moved by

[Baroness Kramer]

That the Bill be now read a second time.

[Baroness Kramer (LD)]

My Lords, perhaps it would help to start this debate by explaining why I regard whistleblowers as crucial to a healthy society. To quote Stephen Kerr, the former Conservative MP and first chair of the APPG for Whistleblowing:

“Whistleblowers are the first line of defence against crime, corruption and cover ups.”


Indeed, the APPG’s first meeting coincided with breaking news of the Gosport War Memorial Hospital scandal, including stories describing how whistleblowers were ignored and silenced.

The scandals exposed by whistleblowers range from care homes, the NHS, policing, the Prison Service and transport projects to financial institutions—many of those, unfortunately—and many private companies. Research by the chartered institute of fraud has found that 42% of all internal fraud is identified by whistleblowers. But before anyone thinks all is well, the sad history of many scandals is that early warnings are ignored when they should be regarded as the canary in the mine and many whistleblowers pay such a personal price that others who want to speak out are deterred. That has to change. I see whistleblowers as a citizens’ army, not just exposing wrongdoing but significantly deterring it.

The first phase of the work of the APPG for Whistleblowing focused on providing a platform for whistleblowers to describe their experiences and recommend reforms. The lived experience of so many whistleblowers, shared in their testimonies, was a legacy of inaction and retaliation when they spoke out. This came with devastating professional and human consequences, with many seeing their lives turned upside down. Despite moves to increase the role of regulators and enforcement authorities, it remains the reality for so many whistleblowers. The APPG’s 2019 report outlined a 10-point plan to improve this situation, from a legal definition that includes all whistleblowers to proposing new ways to support individuals and protect them from retaliation. Crucially, it recommended the creation of an independent office of the whistleblower with real power to act.

In its second phase, the APPG has been talking to regulators. My assessment—the APPG has not yet concluded its work—is that most regulators regard their role in dealing with whistleblowers as very limited by law. Anyone who trawls through the various regulators’ websites will quickly find that the rules for each regulator not only differ but rarely meet the obvious expectations of whom they can hear and what they can do. This situation is confusing and chaotic, and must be improved. Every regulator will tell you how important whistleblowers are. I am sure the Minister will take the same view. I am here today because of the gap between these assertions and the reality facing those who become whistleblowers. Behind every new scandal is a legacy of vital early warnings being ignored and the whistleblowers who bravely put their heads over the parapet being left out to dry and overlooked.

I think we all agree that regulators work hard to try to ensure that the confidentiality of whistleblowers is protected, but we know that such protection often fails because the individual has already spoken internally or is one of a few privy to the necessary information. Regulators regard what most of us would call retaliation against a whistleblower as outside their jurisdiction; indeed, I have never heard of a regulator intervening in an employment tribunal case even though this is where most employees who speak out end up. Most regulators engage with whistleblowers through a call centre staffed by people trained to handle and pacify complaints, not experts capable of spotting wrongdoing. Some regulators act with alacrity. Others pay little attention to what they regard as complaints by troubled people. Interestingly, many of them greeted with sheer relief the idea of the office of the whistleblower to sort through this complex and difficult area, provide them with clarity, help whistleblowers with tailored support and help them as regulators to get on with their jobs. That is why it is important that we ensure that the office has sufficient powers to carry out this role effectively. I am particularly keen that it has the scope to examine, consult and act on knotty and difficult problems.

Who is a whistleblower? Surely it is not just a worker, as you would assume from current law. It could be a client, a supplier, a relative or a contractor, all of whom may need support and protection.

How do you deal with retaliation when it involves a real inequality of arms? It pits little people against well-funded organisations with access to the finest legal expertise and the patience to drag out a case for years. This week in the London central tribunal, as I drafted this speech, there were three whistleblowers that I know of in hearings whose current phase of litigation was costing from £24,000 for a preliminary hearing to £145,000 for a liability hearing—just a fraction of what their final legal costs will be. Dr Raj Mattu, a whistleblower who has permitted me to use his name, was a leading cardiologist fired after he exposed tragic levels of excess deaths at Coventry hospital. He spent £1.48 million clearing his name. When he was totally cleared, he was awarded £1.22 million; he still ended up facing huge bills. If the Minister says, “Well, this is the old world. It does not happen now”, I refer him to the case of Dr Beatt, which was resolved just a year ago. He was awarded £870,000; I do not yet have permission to tell people his costs but let me just say that the pattern is consistent. These costs are prohibitive and skew the system in favour of employers and organisations. We must level this playing field to enable more people to come forward.

How do we compensate whistleblowers whose professional life is effectively ruined by the informal blacklist that follows them for life? I got a lovely email from a whistleblower who has found his career reduced from senior professional jobs—on a par with, or even senior to, many of the people in this Chamber today—and who can now only find work driving a delivery van. How do we deal with confidentiality agreements, the UK equivalent of American non-disclosure agreements, which are part of nearly every settlement agreement and mean that both politicians and the public are in the dark about both the number of whistleblowers fighting to save their careers and what, if anything, has happened to counter the wrongdoing they have exposed? Is the Public Interest Disclosure Act 1998—the key piece of legislation—capable of revision, or does its place as a narrow subset of employment law mean that more overarching legislation is needed? The answer can be found through the work of an office of the whistleblower.

One objection always raised in opposition to creating an office of the whistleblower is the cost it would take to set up and run. To that I say this: the money lost through scandals and corruption far outweighs the cost it would take to run this office. But in pounds, shillings and pence, the financial penalties from one successful prosecution of financial abuse would pay for the office for years—a good example is the £45 million fine from the Lloyds Reading fraud case.

The current chair of the APPG on Whistleblowing, Mary Robinson MP, is very supportive of the Bill, and I thank WhistleblowersUK and Protect for their support. Many MPs are now exercised by the issue and, as we come out of the pandemic, whistleblowers will be crucial in addressing waste and fraud that has occurred in the Government’s Covid programmes. That is not an attack on the Government; it is making sure that people who took advantage of those programmes are identified and dealt with.

We need quick progress to ensure a proper and effective framework for whistleblowing so that corruption and fraud can be stopped in their tracks, while ensuring that those who speak out are protected and supported. I note that just two weeks ago Paul Scully MP, a Minister for BEIS, said:

“It is right and proper that we review the whistleblowing framework”.—[Official Report, Commons, 8/6/21; col. 846.]


An independent office of the whistleblower can drive and support the change we need and ensure that we build a better, fairer society for all. I beg to move.

--- Later in debate ---

[Baroness Kramer (LD)]

My Lords, it has been a superb debate. I will be exceedingly brief and will not repeat the many arguments, examples and illustrations from all around the House in support of an office of the whistleblower. I just say that I am rather sad at the Government’s response, because the fundamental core of our argument is that all the assertions of what takes place and the lived reality of what takes place are two entirely different experiences. We need something such as the office of the whistleblower to ensure that the gap is bridged. I appreciate the opportunity to exercise and discuss these key issues today and, as a consequence, I beg to move.

Bill read a second time and committed to a Committee of the Whole House.