Whistleblowing

Jim Shannon Excerpts

Tuesday 11th September 2012 Westminster Hall

[Katy Clark]

I will address the position in the NHS later in my speech, but the hon. Gentleman is right that whistleblowing legislation has been important, particularly in the NHS. My concern, as I will illustrate, is that some cases will be more difficult to bring if the proposals are enacted, even though many people may still be able to rely on the legislation.

Many who campaigned for the legislation in the early days, and organisations such as the Trades Union Congress that are directly involved in litigating on behalf of whistleblowers, are concerned that the Government’s proposals will water down the protections afforded to whistleblowers and will make it more difficult for those who should be able to rely on the legislation’s protection.

As the hon. Gentleman may know, much of the case law that has developed since the original Act has made it more difficult for people to rely on the whistleblowing legislation. My contention is that the Government’s proposals will be a further step in the wrong direction. When the whistleblowing legislation was introduced, it was intended to be accessible, clear and predictable with as much certainty as possible for those accessing the justice system. The Government’s proposals, by placing on the individual the burden of deciding whether a disclosure is in the public interest, will undermine those principles.

I do not suggest that there is no need to consider the law on whistleblowing. There has been no post-legislative scrutiny of the 1998 Act, and after a decade many issues have been raised that need to be addressed. I contend that the Government’s proposals will make the position more difficult.

Over the years, several cases have shown that the current legislation does not protect those who suffer detriment or reprisal at the hands of co-workers. There is also confusion about disclosure of information and allegations. There is no protection for people who are wrongly identified as whistleblowers, and there is no protection at the pre-employment stage, which needs to be rectified to avoid issues such as blacklisting. Blacklisting, of course, is a big issue for many trade unionists in this country.

The Government have no proposals to address those problems. Particularly in the health sector, recent case law and media stories have highlighted the difficulties that general practitioners, students, nurses, doctors, volunteers, non-executive directors and prospective job applicants have in relying on the legislation. Therefore, the definition of “worker” needs to be widened to include those groups, as well as priests, foster carers and no doubt many others.

[Jim Shannon (Strangford) (DUP)]

I congratulate the hon. Lady on securing this Westminster Hall debate.

I have been involved in a case over the past two years on behalf of one of my constituents who is a whistleblower. Through my engagement with him and the bodies that are supposed to give protection, I have noticed that, when it comes to big business, the whistleblower is often pushed to the side. The Government are considering legislative changes, so does the hon. Lady feel that it is necessary for the Government to put in place support both to ensure that whistleblowers can provide information and to protect the general public? All this is about protecting the general public in big business, health and wherever else.

[Katy Clark]

Many Members will have been involved as constituency MPs in trying to assist constituents who are whistleblowers or are thinking about whistleblowing.

A recent YouGov survey showed that only 26% of the work force are aware of the legislation. In many parts of society, there is little awareness that whistleblowing is legitimate and lawful in certain circumstances, as set out in the legislation.

[Jim Shannon]

The hon. Lady will be aware, as many people both inside and outside this Chamber are aware, that whistleblowing often has a detrimental effect on a whistleblower’s livelihood and job. Many of the people I have spoken to, both constituents and others, have told me that they have lost their job and are fighting to regain it, the cost implication of which means, in many cases, that they have no money left.

[Katy Clark]

The hon. Gentleman makes a powerful point that shows the need for whistleblowing legislation and for strengthening existing legislation.

Dame Janet Smith in the Shipman inquiry stated that good faith is a barrier to whistleblowers, which is borne out by recent reports from the Mid Staffordshire inquiry, which may be reporting in October, and the Leveson inquiry. The Government say they are introducing a public interest test to overcome a legal loophole whereby individuals are able to raise concerns about their own personal employment contracts. The loophole arose as the result of the case of Parkins v. Sodexho. The Government propose to address it with a public interest disclosure test that will have implications far beyond the type demonstrated in that case.

Indeed, it is far from clear that the proposed new wording would have helped in the Parkins case. It is clear, however, that the Government’s proposals will mean that all applicants will have to meet the additional hurdle of a public interest test that does not apply currently. That hurdle may discourage some from making disclosures that are in the public interest. We ask the Minister to address that in her response.

We also ask the Minister to address the issue of gagging clauses. The provisions of the Public Interest Disclosure Act 1998 ensure that no one can be prevented from making a public disclosure and that any attempt to prevent it, for example in a compromise agreement or settlement agreement, is void. However, gagging clauses seem to be used in the public sector, particularly in the national health service, to prevent individuals from talking about policy concerns. She may be aware of the recent press coverage surrounding the former chief executive of United Lincolnshire Hospitals, where there was said to be a super-gag on discussing patient safety, along with a severance deal that I am told was worth more than £500,000. Will she consider the suggestion that lawyers advising on settlements should be required to confirm that they have explained to their client the anti-gagging provisions in the Public Interest Disclosure Act 1998?

As I have outlined, I believe that the Government need to consider the issue, but not in the piecemeal way suggested in the legislation. Organisations such as Public Concern at Work are calling for a thorough review of the operation of all aspects of the legislation, along with a full consultation involving all those with an interest, whether they come from business, trade unions or other organisations. Whistleblowing legislation needs to be strengthened, and I hope that the Minister, in her new position, is willing to take on that challenge.

In the short time available, I ask the Minister to address the following points. Given that a number of changes have been necessary as a result of the legislation’s operation, does she accept that the time is now right for a thorough review? Is she willing to proceed with that? How will the Government take into account the findings of the Mid Staffordshire and Leveson public inquiries into whistleblowing? Will the Government ensure that vicarious liability exists within the Public Interest Disclosure Act 1998 so that workers can rely on the legislation? How will the Government deal with the problem highlighted by Public Concern at Work and others relating to the definition of “worker in health care”? I believe that Ministers in the Department of Health are very aware of those concerns.

If the Government proceed with their proposals as currently drafted in the Enterprise and Regulatory Reform Bill, will they produce guidance on what is and is not in the public interest? There are concerns that the legislation will produce a huge amount of litigation as well as a great deal of confusion for those seeking to rely on it. What will the Government do to promote the provisions of the 1998 Act, given the low level of public awareness and the fact that many cases have made it more difficult to rely on whistleblowing legislation? I appreciate that this is a complex area of law and the Minister is new to her post, but I hope that she will respond as fully as possible.

[The Parliamentary Under-Secretary of State for Business, Innovation and Skills (Jo Swinson)]

It is a great pleasure to serve under your chairmanship, Mr Leigh, particularly as this is my first of no doubt many Adjournment debates in Westminster Hall. I congratulate the hon. Member for North Ayrshire and Arran (Katy Clark) on securing this important debate. She has a strong track record of campaigning, particularly for workers’ rights. I know that that was her background in professional life before coming to the House, and she has continued it in an excellent manner while she has been here. We entered Parliament together, and it is a delight to respond to her on this occasion. I thank her for her kind congratulations and good wishes to me in my new role. I hope that we will be able to engage constructively, as I know that she has a significant contribution to make in this area of her expertise.

It is nice that my first Adjournment debate has allowed me to look into whistleblowing in more detail. As the hon. Lady mentioned, it is a complex and specific area of law. I will do my best to answer her questions, but if there are any outstanding issues, I will be more than happy to write to her and engage with her in future. No doubt there will be further debate on Report of the Enterprise and Regulatory Reform Bill, which will return to the House of Commons in due course.

Whistleblowing is an important issue. It is important to recognise why the Public Interest Disclosure Act 1998 was passed in the first place. From a range of disasters, incidents and other cases, such as the dreadful events on Piper Alpha, it became clear that there was not enough protection for people who blew the whistle to raise concerns about health and safety issues or other matters of public interest, and that that situation needed to be put right so that people would have the ability and confidence to speak out in such circumstances without fear of losing their jobs or other detriment.

It is fair to say it was a landmark piece of legislation, introduced by the Labour Government, to whom credit is due. However, it is also important to note and remember that it attracted cross-party support as well, because Members throughout the House recognised that change was needed. The Act meant that for the first time, employees raising genuine concerns about wrongdoing in the workplace were protected. This Government strongly support the protection that the Act gives whistleblowers, and we agree that it is incredibly important that employees feel able to speak up about workplace issues affecting the public interest.

In responding, I will say a little about the change to the Act proposed in the Enterprise and Regulatory Reform Bill. It aims to fix a specific issue that has arisen as a result of the judgment in the case of Parkins v. Sodexho Ltd 2002, whose effect was to widen the scope of the Act beyond what was originally intended, leading the legislation to be used opportunistically in some cases to address matters of purely private interest. There is wide agreement that the effect of Parkins v. Sodexho must be addressed, and I recognise that the hon. Lady understands that it is a problem that needs rectifying. There are slightly differing views about how that should be done, and it is right that those should be debated and scrutinised thoroughly in the House.

The relevant clause of the Enterprise and Regulatory Reform Bill was debated in Committee on 3 July. During that debate, my hon. Friend the Member for North Norfolk (Norman Lamb) set out in detail the reasons for the Government’s approach. I do not intend to repeat all his arguments, but we believe that the Government’s approach of inserting a public interest test is the only way of fully closing the loophole created by Parkins v. Sodexho while avoiding the possible unintended consequences of alternative approaches.

In preparing for this debate, I looked at some of the figures demonstrating the scale of the issue. In the first year after PIDA was passed, 157 protections were applied for. As one might expect with a new piece of legislation, that number increased as awareness increased, to 400 or 500 in 2002. Since the ruling, it has expanded rapidly, so that in 2011-12, about 2,500 applications were made under PIDA.

There are different ways of interpreting those figures. One is that there is lots of whistleblowing and it is a wonderful success of the Act, but I think that it is understood that application for protection is often being added on in employment cases. Most cases do not even come to tribunal, as the majority are settled in other ways. Of the 2,500 in the last year we have figures for, more than 900 ended up in a conciliated settlement through ACAS and more than 600 were withdrawn or privately settled. There is, therefore, concern about it being used in an opportunistic fashion in some cases. I think that that is recognised, and so we need to deal with it.

In preparing for the debate, I wondered what the controversy was in requiring that the Public Interest Disclosure Act 1998 had to include a public interest test, because there is a basic logic to that—it does what it says on the tin. When it was originally drafted, it was almost taken for granted that, because of the title of the Bill, it would be used for cases that were genuinely in the public interest. I am convinced it is within the original spirit of the Act that the person making the application for its protection should reasonably believe they are raising an issue in the public interest, so we are just trying to prevent the tactical, opportunistic use of PIDA by those who claim that protection to raise purely personal issues.

[Jim Shannon]

I congratulate the Minister on her promotion and wish her well in her new job. I am sure that she will be aware of a new organisation that has been set up in the past month, perhaps just outside the legislative consultation process in which we are now involved, on behalf of whistleblowers who have got together to promote their cases. Does the Minister intend to contact that organisation to get its input into the process, so that the voice of whistleblowers is heard fully?

[Jo Swinson]

I thank the hon. Gentleman for his intervention and kind words, and for his contribution to my knowledge on this matter. I have not come across that new organisation which has only been in existence for a month, but my approach is to welcome any organisation or individual that wishes to ensure that its concerns are heard. I would be happy to read a submission from that organisation if he is able to pass on its contact details after the debate.

The hon. Lady mentioned concerns about the burden of proof, which she felt would be unhelpful to individuals. Clearly, it will be up to the tribunal to decide whether that test is met. I do not think that having to bring something in the public interest is a hurdle that will stop people bringing cases forward. It will promote consistency in the legislation and underlines the principle that the 1998 Act, with the right and proper extra protections it offers, is concerned with a public rather than a private interest. In the autumn statement, we announced we would fix that specific issue, and it will be done through the Enterprise and Regulatory Reform Bill.

The hon. Lady raised a wide range of issues. There are no current plans to review the legislation more widely as the Act is generally operating well and as intended, but I will reflect on the matters she has raised in such a thoughtful manner.

The Government provide guidance on making protected disclosures, and the hon. Lady asked about how it would be promoted. Of course, in light of the proposed change under the Enterprise and Regulatory Reform Bill we will consider whether the guidance needs to be revised at all. I understand the genuine concern relating to the survey that suggests that many people are entirely unaware of the protection. It is worth putting on the record the Government’s thanks for the excellent efforts made by Public Concern at Work in promoting the 1998 Act and bringing it to the attention of more workers. It is important that it is widely understood.

The hon. Lady asked a specific question about whether lawyers will inform their clients. They have a general duty to advise a client on any aspect of the law that is relevant to the situation, as she will know from her professional life, and that includes advising on public interest disclosure rights. That does not need to be set down in legislation, but is a duty that any legal professional would fall under.

Turning to other issues that were raised, there has been a suggestion from Public Concern at Work that the Government should copy the vicarious liability provisions of the Equality Act 2010. Aspects of the 2010 Act are currently under review, particularly in relation to vicarious liability. While that is ongoing, further changes to PIDA would be premature. I am also aware of the concern about the judgment in the Fecitt case, in particular. An employee who blows the whistle could be subject to inappropriate bullying behaviour by other members of the work force, and the concern about the ruling was that employers would perhaps not have a responsibility to do something about that. The ruling was specific, however, and took the view that in that case the NHS had taken reasonable steps. Therefore, I would not necessarily assume that there is a guarantee that employers never need to do anything. The judgment is perhaps not as crystal clear as some would like, but clearly an employer that does not do enough to prevent an employee being victimised by other employees could themselves be liable for their failure to act if it can be shown that the employee has made a protected disclosure, so there is perhaps some reassurance about those concerns.

There is another potential remedy in the law. An employer could be vicariously liable under other legislation, such as the Protection from Harassment Act 1997, depending on the circumstances of the individual case. It is also possible that an employee who had experienced that could argue that the employer had acted to destroy the relationship of mutual trust and confidence, and thereby bring a claim for constructive dismissal.

On the Shipman inquiry and the good faith test, we do not see its purpose as being interchangeable with the public interest test. The good faith test prevents an individual from making a disclosure for a malicious purpose; for example, to deliberately cause commercial damage to their employer. The public interest test deals separately with the fact that the disclosure must be of public, rather than private interest. The good faith requirement is not intended to operate as an additional barrier to genuine whistleblowers.

The hon. Lady raised the Leveson and Mid Staffordshire inquiries. They are large inquiries in their own right and deal with a wide array of different issues, much wider than the specific provisions of the Public Interest Disclosure Act. The Department of Health has published its response to the Mid Staffordshire inquiry and is continuing to promote whistleblowing in the NHS.

On the categories and definitions of “worker”, we are already in dialogue with stakeholders and the Department of Health about the categories of worker that are covered. It is important that individuals who should be included are not inadvertently excluded from the scope of the Act. I hope the hon. Lady will be reassured that those discussions are ongoing with a genuine desire to ensure that people are properly covered.

The hon. Lady asked for a more thorough, wide-ranging review of the Act in its entirety. At the moment, there is not necessarily a case for that, but, as I said, I will reflect on the points that she has made. There are various issues, and it is important to ensure that they are all considered on an ongoing basis.