Public Interest Disclosure (Amendment)

David Davis Excerpts

Tuesday 19th November 2013 Commons Chamber

[Mr David Davis (Haltemprice and Howden) (Con)]

I beg to move,

That leave be given to bring in a Bill to amend the Employment Rights Act 1996 to provide that disclosures of information about malpractice to a Member of Parliament where the disclosure is in the public interest be included as protected disclosures; and for connected purposes.

In the last decade of the last century, one of the most important Bills that was passed by this House was introduced not by the Government, but by my hon. Friend the Member for Aldridge-Brownhills (Sir Richard Shepherd), with all-party support. His Public Interest Disclosure Act 1998 followed a series of accidents that were fatal and entirely preventable, including the capsized car ferry at Zeebrugge, the explosion of the Piper Alpha oil rig and the Clapham junction rail crash, which between them cost 395 lives.

In the 15 years since the Act was passed, British society has benefited hugely from the bravery of whistleblowers. Those public-spirited men and women have shamed corrupt officials, identified heartless and hopeless hospitals, and exposed the deliberate or reckless misuse of public money. In the past five years alone, whistleblowers have exposed pharmaceutical companies that have overcharged the NHS for drugs; alerted the National Audit Office to the tax authorities agreeing sweetheart deals, which let multinational companies reduce their tax bills by billions; filmed the abuse and neglect of elderly people in care homes; and exposed a litany of failings in our health service—some of which we have just heard about—such as the appalling standards of care at Mid Staffordshire, the failing maternity unit at Morecambe Bay and fiddled waiting time figures at Colchester.

Thanks to the Public Interest Disclosure Act 1998, whistleblowers have some protection. Employment tribunals have made 3,000 judgments in cases brought under that legislation. However, those cases are just the tip of the iceberg. For every whistleblower who goes public with their concerns, many more never come to light. The decision to expose wrongdoing is a life-changing choice. Whistleblowers find themselves shunned by colleagues, bullied by bosses and hauled before tribunals on trumped-up charges. Ugly rumours are started and careers finished. Whistleblowers’ health, wealth, friendships and marriages are tested to destruction—all casualties of their acting in the public interest.

Let me take one example to illustrate the point. The story of Edwin Jesudason is typical. As a paediatric surgeon with more than 20 years’ experience, he raised concerns that children had died unnecessarily at Alder Hey children’s hospital. As a result, colleagues refused to work with him. Trust bosses tried to force him out. When that failed, they tried to gag him by offering him a six-figure sum if he left his job, kept his mouth shut and destroyed incriminating documents. He refused to take the money. Last year, he sought an injunction to stop trust bosses sacking him. Halfway through the hearing, the British Medical Association suddenly withdrew its support. Near bankrupt, he had to drop the case.

That case is shocking, but it is not remotely unique. In April, a poll showed that, of more than 5,000 nurses who had reported substandard care, a quarter were warned against taking the matter further. Half of all whistleblowers face negative treatment of that sort, with a third of those being sacked. Faced with such treatment or the threat of it, many whistleblowers admit defeat. Hundreds have been pressured into signing compromise agreements, complete with gagging clauses that buy their silence. In the last four years, 77 NHS trusts have used gagging orders to silence 133 staff at a cost of almost £4 million.

The culture of secrecy clearly comes at a financial cost, but more objectionable is the unquantifiable impact on our society and public services: the lives needlessly lost or irreversibly damaged; the unsuitable managers and staff allowed to continue in their posts; the missed opportunities to learn from mistakes—that is the real cost of using public money against the public interest. Every time a whistleblower is dismissed, ignored or bullied into submission, a cover-up is allowed to continue.

That is why I welcome the Government’s decision to use the Enterprise and Regulatory Reform Act 2013 to strengthen the legal protection for whistleblowers. However, I believe that we should go even further. In February, the Department for Business, Innovation and Skills published a 22-page document called “Blowing the whistle to a prescribed person—List of prescribed people and bodies”, which lists the bodies that a whistleblower can contact if they do not feel that they can go to their employer. The list includes Revenue and Customs, the Independent Police Complaints Commission and the Care Quality Commission, but not the whistleblower’s Member of Parliament.

That means that whistleblowers who report wrongdoing to their MP will not automatically be protected by law. Those conversations will be protected only if the whistleblower meets a series of conditions set out in section 43G of the Employment Rights Act 1996, which includes notifying a potentially hostile employer, showing that the wrongdoing is exceptionally serious and demonstrating a reasonable belief that their employer will destroy vital evidence. If they cannot meet those conditions, whistleblowers who contact their MP place themselves at the mercy of employers who may want them to be victimised, sidelined or even sacked. I believe that that is wrong. Whistleblowers should not have to consult a solicitor in order to talk freely to their Member of Parliament.

The Bill therefore seeks to do three things. First, it will ensure that a whistleblower’s disclosures to their Member of Parliament will be unconditionally protected for the purposes of the Public Interest Disclosure Act 1998. Secondly, it would make it a criminal offence for an employer to try to prevent a worker from blowing the whistle to their MP. There will be some narrowly defined exceptions, particularly over the Official Secrets Act, but even those could be overridden if the disclosure was clearly in the public interest. Third, it would empower Members of Parliament to refer allegations made by a whistleblowing constituent to a prescribed body, and it would enable that Member of Parliament to require from any one of those prescribed bodies a confidential response. In that way, the Bill would extend legal protection to whistleblowers’ disclosures to their MP, but also ensure that any allegations are investigated by a body with relevant knowledge and experience.

Whistleblowers often demonstrate great courage, but they should not have to be heroes. Acting in the public interest should not require such huge personal sacrifice, and employers who jeopardise public safety simply to save their reputations should have to explain that choice in court. By shielding these courageous men and women from legal hurdles and vindictive bosses, this proposal would allow Members of this House to protect everyone from waste, corruption and incompetence in business, health care, and more generally in public life.

Question put and agreed to.

Ordered,

That Mr David Davis, Sir Richard Shepherd, Sir Menzies Campbell, Margaret Hodge, Mr Stephen Dorrell, Ann Clwyd, Mr Dominic Raab, Mr Tom Watson, Dr Sarah Wollaston, and Stephen Barclay present the Bill.

Mr David Davis accordingly presented the Bill.

Bill read the First time; to be read a Second time on Friday 17 January 2014, and to be printed (Bill 130).