Public Interest Disclosure (Protection) Bill

Chris Stephens Excerpts

2nd reading & 2nd reading: House of Commons
Friday 25th September 2020 Commons Chamber

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

I beg to move, That the Bill be now read a Second time.

Before I start my speech, I too wish to send my and my party’s condolences to the family of the police officer who lost his life in the line of duty last night.

Bristol Royal Infirmary, Mid Staffs, Morecambe Bay, Liverpool and Gosport: as in previous debates, I recite this shocking litany of tragedies, which have become household names, to remind us all of what is at stake.  In each of those scandals, there were those who tried to raise concerns and protect patients, but they were ignored and often intimidated, victimised or even dismissed. Had they been listened to, lives could have been saved.

Whistleblowing is an issue in many sectors, including financial services, as I am sure we will hear about later, but it is often the NHS and social care cases that stay in our memories, due to the terrible impact on patients and their families. The very term “whistleblower” denotes a boiling kettle—a sense of pressure and build-up, until a valve releases. In many cases, the poor working practices or patient safety issues have been going on for a long time before someone is finally driven to speak up. That is because the whistleblowing landscape before them is littered with broken careers and, indeed, broken people who tried to do the right thing.

Most businesses and organisations want to create a good external impression—to project an air of success and to attract more business. As Sir Robert Francis highlighted in the Mid Staffs inquiry, that can be a significant pressure if public services are competing for contracts in a market-based system. The temptation is to cover things up—to look good from the outside, rather than admitting a problem and trying to fix it. That immediately places the employee in conflict with their employer, who just wants the problem to go away. To redress that power imbalance, it is necessary to protect and support whistleblowers, to encourage them to step forward and raise their concerns, whether on patient safety, financial wrongdoing or environmental damage.

[Chris Stephens (Glasgow South West) (SNP)]

I thank my hon. Friend for bringing this Bill to the House. Does she agree that one of the important factors behind this Bill is to protect employees who engage in whistleblowing, many of whom find themselves dismissed, albeit for other reasons?

[Dr Whitford]

I thank my hon. Friend for that intervention. That is exactly the problem with the Public Interest Disclosure Act 1998, which falls within employment law, putting the burden on the employee to prove that they have been sacked purely for raising a concern, rather than on the employer. As I will come to later, such cases very quickly turn into, as we would say in Scotland, a complete rammy.

In the five years that I have been in this House, I have heard politicians from all parties, including the previous Health Secretary, praising whistleblowers. However, despite several debates on the topic and about the need for action, nothing has been done to provide the protection they need from the point at which they make a disclosure. That is the critical thing: to protect them from damage, not to allow a system to pick it up afterwards. During the covid crisis, when we were out clapping the NHS and social care workers, we heard just as many stories of intimidation of those raising concerns about PPE or staffing.

When the Public Interest Disclosure Act—or PIDA—was passed 22 years ago, it too was a private Member’s Bill. I wish to express my thanks to the Clerk of private Members’ Bills in the Public Bill Office for all his work, but I recognise that I have pulled this Bill together, so I have no problem with its being improved, changed or developed in order to make it function. This is not a party political issue; whistleblowing exists in every sector, in every nation. We should recognise the need to deal with it and try to fix it.

At the time, PIDA was hailed as world leading, but that was 22 years ago. There are now better international examples, and it is in need of a complete makeover. What are the problems with PIDA? First, whistleblowers think that it offers protection from the point at which they come forward, but it does not. It merely allows them to challenge their employer in an employment tribunal after they have suffered detriment, such as missing out on promotion, being bullied or threatened or, as in a third of cases, even losing their job. As I said, the burden of proof is on the whistleblower to prove that raising a concern is the only reason that they have been sacked, rather than on the employer to prove the opposite. It is rather unsurprising, then, that only 3% of tribunal cases are successful—there is a 97% failure rate, and that is just the ones that actually go all the way to a tribunal.

The litigation process also creates opportunities for further victimisation and intimidation, with breaches of confidentiality and threats of spiralling legal costs. Ordinary workers in most sectors simply cannot maintain the fight. The problem is that as PIDA sits within employment law, it just turns into a battle between employee and employer. The original cause for concern that made them speak up gets completely lost, rather than investigated and action taken to fix the problem. This is actually the whistleblowers’ biggest complaint. The people I met said it was not even about their detriment or protection for them, but about the fact that after everything they went through the issue was never investigated and certainly never dealt with.