Whistleblowing at Work

Earl of Lytton Excerpts

Monday 24th March 2014 Grand Committee

[The Earl of Lytton (CB)]

My Lords, I, too, congratulate the noble Lord, Lord Wills, on securing this debate, Public Concern at Work on setting up the commission into whistleblowing and the commission itself on writing what is an absolutely excellent report. Noble Lords will know that my interest stems in particular from police conduct and crime recording. Given the systemic fiddling of the crime figures, it is surprising how few internal questions were being raised, and as we now know, the problems of widespread cover-up went much deeper. I pay tribute to the many people who have put themselves at risk to blow the whistle. Were it not for them, many very serious cases would never have come to light. Even so, we know that bad practices continue and, indeed, that lives are at risk, so we have no reason to be complacent. Thank goodness that, in retirement, some former police officers have retained a conscience.

The report identifies problems with bullying, harassment and blacklisting of whistleblowers. Some are seen as troublemakers, as we have heard, and have been unable to secure further employment in their chosen field. My analysis is that blacklisting would be to no purpose if it were not for senior people still in post whose policies and activities might yet be exposed by that same whistleblower being restored to their position. Weak, if not actually corrupt, management protects them. That is a sign of a great deal of unfinished business.

Under the Public Interest Disclosure Act, whistleblowing comes within employment law. As any business knows, employment issues are a nightmare even if there is a fully fledged HR facility. Separating terms and conditions of employment from the objective reporting of corporate wrongdoing is almost impossible. The whistleblower must go to the line manager, but there is an obvious conflict of interest for the manager, to add to the confusion between employee conditions of work on the one hand and reporting of behaviour contrary to public interest on the other. Whistleblower protection is thus inadequate, and the current system is ineffective as well as the process being divisive.

At paragraphs 79 and 80, the commission explains one paradox where an employee claims a genuine belief that disclosure was in the public interest, but the employer can dispute this without first addressing the primary issue of whether there was corporate wrongdoing. Recommendation 12 specifically highlights the issue of workers “wrongly identified” as whistleblowers. I do not believe that the necessary change in corporate attitudes will happen on its own without some sort of push. However, information about corporate misdeeds is not confined to employees. It may be an outsider—a family member, business associate, subcontractor or even an observant bystander—who sees things and cottons on to the fact that something is amiss, possibly something not affecting employment at all. These people have no reliable avenue for raising concerns, so I maintain that the current construct is too narrow and that its scope needs to be widened substantially.

Follow-up for both employee and non-employee categories can be extremely patchy, as we have heard. There are numerous instances where an employee has gone to their line manager or people outside have gone to the police with their worries only to find that nothing happens and the evil persists. It is a failure of corporate social responsibility.

Where a systemic culture of cover-up and large-scale complicity exists, management can, quite literally, close ranks and kill the issue. This also happens in hierarchical bodies and in uniformed services, where the concept of not grassing on your mates is a particularly potent bond. The other concept of noble purpose—perhaps public order, saving lives, curing disease—may even override all other considerations, including decency, proportionality and justice. The scandals of some police-on-police internal investigations in response to whistleblowing are an example.

The noble Baroness, Lady Browning, quoted me, but in fact I am not the origin of the comment. It comes from a 2008 article in Policing by Barry Loveday of the University of Portsmouth. He links some of these aspects with the construct of performance management. He says that when applied to public sector bodies as opposed to manufacturers with measurable outputs of widgets and sales, the results are often this collectivisation of risk, avoidance of individual responsibility and abrogation of leadership. Mid Staffordshire NHS Foundation Trust had precisely that generic problem.

These mutually reinforcing factors mean that we have to be particularly vigilant in the choice of mechanisms that enable people to speak out when they feel a compelling need and protect them from reprisals when they do so. My suggestion would be to follow recommendation 25 in the report, in that we need a completely independent, sector-by-sector whistleblower ombudsman—I use the term broadly—in other words, a totally confidential, external and objective mechanism with enough expertise to distinguish personal employment issues from plain mischief making, and both of those from genuine public interest disclosure. It would need powers to act on the findings.

The question will be asked: how do we fund this? To which my answer is that if there was proper assessment of the distress to families and individuals of miscarriages of justice, the damage to employee prospects, the dereliction of public interest and even the deaths, then it would happen. Today’s press coverage of fraud in the NHS tells us that the present situation is, frankly, unaffordable.

However, the final problem may be at the top. I refer, of course, to the reluctance of Governments to countenance anything that discloses unsavoury reactions by the state, often for long periods afterwards. The unnecessary use of the Official Secrets Act and of public interest immunity certificates in judicial proceedings are examples of the same corporate lockdown as confidentiality clauses and gagging provisions that are used to protect guilty people and prejudice innocent public interest whistleblowers. These factors should be subject to judicial scrutiny, even if by closed session.

There is also a dangerous belief that some areas of endeavour are above suspicion. They are not and must not be. We can, if we wish, make provision in an organised way, or we can leave it to default through the court of the press, the web and social media. There is a choice, and I suggest that we get ahead of the curve. The commission has helpfully fired the starting gun in a report that covers a wealth of issues. I hope the Government are listening.