Whistleblowing

Bob Stewart Excerpts

Wednesday 3rd July 2019 Commons Chamber

[Stephen Kerr]

I completely understand, and am sympathetic to, that point. We need to work together to establish this independent office of the whistleblower. Sometimes whistleblowers pay such a heavy price in terms of the financial consequences that flow from their actions that perhaps there is a case for compensation, but I have not made up my mind. We have to hear more evidence and have a wider discussion in Parliament about these issues. It is absolutely clear, however, that whistleblowers need somewhere safe to go, and to be supported and have their cases properly advocated in the face of power, authority and bureaucracy.

I mentioned the problem of blacklisting. One person told us how he had been blacklisted for speaking up. He had reported criminal activity to the employer. Instead of dealing with the issue, the employer dealt with the person who had spoken up in the first place and coerced them to stay silent. It is bad enough to have something criminal going on within one’s business, but then to cover it up, and contrive to force those who are willing to speak up for the reputation of the organisation or business to leave, is clearly unacceptable, and then to seek to blacklist them so that they cannot work in a profession in which they have trained and acquired qualifications is truly shameful.

The complex legal framework surrounding whistle- blowing covers too few people. It is complex and legalistic. Many of the whistleblowers whom we met were not recognised as whistleblowers by the law. The tests that are necessary to stop people abusing whistleblowing are too stringent and do not recognise complexity. One employee brought up issues of racism at work and the flouting of HR rules. The employer, instead of recognising the whistleblowing, tried to diagnose a mental health issue, sending the employee on medical leave. The company-appointed psychologist then broke confidentiality to speak to the managers of the business. Although regulators confirmed that the employee had a point, they were dismissed and have received no justice.

Whistleblowers can be dragged through the courts, with mounting costs and unending hassles. For many, their cases have consumed their lives. It may be thought that the best advice such a person could be given would be “Move on and forget it”, but that is not justice; it is unjust. While it might be said to have been good and well-intentioned advice, is that really the way in which we in this place want the affairs of our country—economic, and relating to public service—to be dealt with? I really do not think so.

However, it is equally important not to limit the definition of whistleblowers to employees. As I said earlier, and as was mentioned by the right hon. Member for North Norfolk, many categories of people should have the protection to which whistleblowers are legally entitled. We must ensure that, when they blow the whistle, they are given proper protection under the law—and the law is too vague in this regard.

When an individual faces the full force of a corporate or public sector legal department, it is a complete mismatch. Public corporations should be mandated to disclose legal costs to shareholders in such cases, and the same should be true of public authorities. They should have to make clear and transparent the costs of fighting whistleblowers that will be borne by the taxpayer. Some of the estimates of the costs that have been incurred by public services are absolutely mind-blowing and wholly disproportionate.

One brave whistleblower in Scotland had evidence of HR malpractice. It should have been a simple grievance dealt by the organisation, which should have been pleased to receive the feedback from that person. Instead, the person and their family, who also worked there, were victimised. They cannot afford legal representation, and will have to argue their own case at a tribunal against a public sector legal department with an expansive budget.

[Bob Stewart (Beckenham) (Con)]

I thank my very good friend for allowing me to intervene. It seems to me that the very best companies, corporations and organisations should include in their codes of ethics or conduct a requirement for employees, or people for whom they have responsibility, to report things that are wrong. In the first instance, that should happen within the organisation, but if people still feel that they have not obtained satisfaction, there should be a device within the organisation enabling them to report things, and they should not be victimised for that. They should be applauded, because if they do that, the company will get better.

[Stephen Kerr]

I completely agree with my hon. and gallant Friend. I cannot understand why any organisation would not embrace the feedback someone brings them when it has to do with the types of things whistleblowers raise: why on earth would any business or public sector organisation not want to know when things are not being done right—what is right in terms of the law, what is morally right, and what is right in terms of the values of the organisation? And there absolutely should be a no recriminations policy in any organisation worth its salt. I also absolutely believe that there needs to be a place where whistleblowers can go, a safe harbour where their case will be properly treated and respected and where they will get the necessary level of support, whatever that support might be, so their case can be properly heard.

I think I have made it clear that I strongly believe that no organisation of any repute should be operating in the ways we have heard discussed in this debate by various colleagues. Governments and companies should be confident enough to know when they are wrong, and they should be honest and brave enough to address that. The reaction to whistleblowing should be to say, “Thank you; thank you for speaking up”, and then when the whistleblower’s words and evidence are evaluated organisations should be more than happy; in fact, they should be recognising and themselves rewarding whistleblowers who speak up so that the changes that flow from that will mean they as businesses or public service organisations can become more efficient, effective and ethical in the way they operate.

The APPG will soon publish its findings and recommendations, and we will further consider and promote the case for an independent office for the whistleblower, giving protection to and advocating in the interests of whistleblowers. We shall also be asking for an end to the use of non-disclosure agreements to cover up wrongdoing, criminality and other morally dubious behaviour. That idea must be fully debated and explored, because there are currently far too many abuses of NDAs.

Parliament and Government have a responsibility to set the conditions and the standards; we have to create the culture in our country where people feel confident that they can and should speak up in the public interest. We want whistleblowing recognised as a positive and public-spirited thing to do, and I look forward to the Minister’s reply today, but this is the start of the debate on this issue, not an end, and we must recognise the courage and integrity of people who do the right things for the right reasons, because they are guided in what they are doing by conscience and the public interest.

--- Later in debate ---

[Dr Philippa Whitford (Central Ayrshire) (SNP)]

I pay tribute to the right hon. Member for North Norfolk (Norman Lamb) for securing and opening this debate, and to the other members of the APPG for their work on this topic.

Bristol Royal, Mid Staffordshire, Morecambe Bay, Liverpool, Gosport, Whorlton Hall—all shocking scandals of health and social care. In every one of those scandals, there was a whistleblower years before it came out who tried to raise concerns and protect people. They were ignored, and that is often the least that happens, as they are often undermined, victimised or dismissed.

[Bob Stewart]

I suspect that the hon. Lady might be going on to say that those people were then blacklisted; they could not get another job in the health service afterwards, for some reason that they could never actually ascertain.

[Dr Whitford]

I thank the hon. and gallant Gentleman for his intervention. As a medic myself, it is clear that we are advised by the General Medical Council, the Royal College of Nursing and various official bodies that we must speak up—that we have a duty to speak up. However, the landscape we look at is littered with broken careers and often broken people.

The problem is that whistleblowers think they are protected because they have heard about whistleblower protection, but it simply does not exist. The right hon. Member for North Norfolk talked about “brave people” speaking up. People should not have to be brave to raise concerns. If all people see is others ahead of them who have been driven and hounded out of their career, and who have maybe ended up with mental health issues or worse, then that is a big, black, threatening cloud—keep your mouth shut, keep your nose clean, walk by on the other side. The problem is that that results in more suffering and more death.

There are two aspects to this issue: business and industry, which is represented most commonly by the finance sector; and public services, which are most commonly represented by the NHS. Those two sectors—finance and the NHS—probably generate the biggest number of scandals and whistleblowing cases, and therefore specific treatment is required in those industries to invite whistleblowers to come forward and protect them.

While there is UK-wide regulation of finance, health services are devolved. The four health services are struggling with this and working to improve whistleblowing. After the Mid Staffs scandal, Sir Robert Francis highlighted that in Mid Staffs—indeed, this was an issue in some of the later scandals—there was an obsession with becoming a foundation trust. The hon. Member for Stirling (Stephen Kerr) and others have talked about why people cover things up. Whether it is a high-profile business or a public service that has been corporatised, there is a drive to remain shiny and perfect on the outside, instead of admitting a problem and trying to fix it.

Having produced his report, Sir Robert Francis set up the “freedom to speak up” guardians in hospitals and the national guardian. In Scotland, the local person in health boards—we do not have trusts—is a specific non-executive director who is a whistleblowing champion. The advantages of a non-executive director is that they are on the board, with a clear and loud voice, and they are not an employee, but they are part of the system. The “freedom to speak up” guardians are employed by the trust, so they are operational—they are a person to go to—but they are also an employee. There are issues at the trust and health board level with how the guardians or champions themselves are protected. Perhaps we need not only an independent national office but an independent system. In the NHS, that might be people who are taking responsibility for safety or healthcare services information. Unfortunately the legislation on that is in the Brexit long grass, but I hope it will eventually come forward.

There is a national guardian in England, but it does not have statutory powers. Scotland has set up an Independent National Whistleblowing Officer, who is basically the public services ombudsman. They are completely separate—they are outside the system—and they have statutory powers, which is important. A reporting and advice line was set up back in 2013, so that if people were afraid to report locally or were not getting anywhere, they could report to that phoneline.