Whistleblowing Protections

Justin Madders Excerpts

Tuesday 22nd October 2024 Westminster Hall

[The Parliamentary Under-Secretary of State for Business and Trade (Justin Madders)]

It is a pleasure to see you in the Chair this afternoon, Sir Mark. I start by offering my triple congratulations to my hon. Friend the Member for Stoke-on-Trent Central (Gareth Snell): first, congratulations on returning to this place—it is good to see him back—secondly, congratulations on securing the debate; and thirdly, congratulations on being appointed chair of the all-party group for whistleblowing, which I am sure he will lead with distinction. We have heard a number of very important and passionate contributions today. I will do my best to sum them up, but it is fair to say that we are looking forward to working with all Members across the board on this very important topic.

Before addressing some of those points, I will start by discussing the current whistleblowing framework. As Members have said, it is essentially about employment protection, and that is the reason why I am here, as the Minister for Employment Rights, to respond on the Government’s behalf. The protections were introduced by the Public Interest Disclosure Act 1998, which amended the Employment Rights Act 1996.

The legislation was intended to provide a route for workers to make disclosures of information that they reasonably believed were in the public interest and tended to show a relevant failure or someone covering up a relevant failure. Those relevant failures could include criminal offences, the endangerment of health and safety, causing damage to the environment, a miscarriage of justice or a breach of any legal obligation.

Disclosures need to be made in line with the requirements of the legislation, usually to a worker’s employer or lawyer, or a prescribed person. As Members may know, there are more than 90 different prescribed persons under the legislation to whom relevant failures can be reported. They are usually regulators, such as the Equalities and Human Rights Commission and the Financial Conduct Authority. I will not go through every single prescribed person today, but most have a statutory obligation to report on the disclosures that they receive and to publish the reports annually.

Since the reporting requirements came into effect, there has been an increase in the number of disclosures that are made to prescribed persons. The volume of disclosures is around 50,000 a year and, as we can probably tell from the contributions today, they are highly concentrated in the health, public administration and financial and insurance sectors. The reports summarise the actions that a prescribed person has taken, but there is variation in how that information is protected. As we have discussed, workers have, under the law, a right not to be dismissed or subjected to a detriment as a result of making a protected disclosure, and there is recourse to an employment tribunal. The number of employment tribunal complaints under the jurisdiction for protected disclosure in each year since 2017-18 has increased, reaching 3,128 in 2020-21. That is the latest year for which a full dataset is available.

But enough of the overview. We need to talk about some of the important contributions that we have heard from Members. This debate is really about how whistleblowing affects individuals. We know that it can fundamentally and irrevocably damage, indeed end, that relationship with the employer. We know there are reasons why people will not speak up: some are in senior positions and fear for their career or their reputation, some may be at the other end of the spectrum and fear insecurity and power imbalances that may make it difficult to speak up, and some may have a link to the organisation but may not be covered under the legislation.

I would like to make a few comments about the contributions in this debate. I am grateful to my hon. Friend the Member for Redditch (Chris Bloore) for contributing. I am sure if he had come in earlier, his speech would have covered many of the points that had already been made, but that is the lottery of Westminster Hall, and I am sure there will be many opportunities for him to speak earlier in other debates. He referenced a number of Members’ speeches.

It was particularly pleasing to hear from my hon. Friend the Member for Congleton (Mrs Sarah Russell), who brought her professional experience to bear today. She made an interesting suggestion about the use of “some other substantial reason” as a potentially fair reason for dismissing someone in whistleblowing cases. We probably need to look at the use of “some other substantial reason”, as it is likely that it gets overused. However, as she will be aware, the current Employment Rights Bill has enough in it for us to be getting on with. She made an interesting suggestion in respect of the potential use of the Fair Work Agency here, and that is something we will bear in mind.

The Liberal Democrat spokesperson, the hon. Member for Wokingham (Clive Jones), highlighted some of the legal issues under the current legislation, including the question whether someone is within scope, the hurdles that they have to overcome to qualify for protection and the public interest test. Those are all things that we want to look at in a broader sense, if we get around to a review of the legislation. I take his point about officials in the Department for Work and Pensions, but I hope that this Administration would want to be an exemplar of best practice, and we would want people to feel confident that they can speak out if they see a wrong or an injustice.

It was a pleasure, as always, to hear from the hon. Member for Strangford (Jim Shannon), in his customary place—I may have swapped positions, but he remains a permanent fixture over there. He spoke very movingly about his friend Brian and the great personal cost of his efforts to expose wrongdoing. Brian’s resilience came through in the hon. Member’s description of his fight. As he said, it was about doing the right thing, and his message was that,

“you are not alone when you do the right thing.”

We should be sending that message to anyone who thinks about blowing the whistle. Of course, the matter is devolved to Northern Ireland, but that message should ring out across the whole of the United Kingdom and Northern Ireland.

My hon. Friend the Member for Hackney South and Shoreditch (Dame Meg Hillier) raised some specific issues about the Department of Health and Social Care and her constituent Sarah McMahon. I am sorry to hear of the three years of personal difficulties Sarah McMahon has suffered as a result of doing the right thing. Unfortunately, too many organisations make it very difficult for individuals who blow the whistle. I understand that the Department for Health and Social Care has concluded a review of the statutory duty of candour, and it has issued a call for evidence, which I think is ongoing. I take her message of frustration about the length of time that these things take, and I will pass that message back to the Department.

However, my hon. Friend made the important point that some organisations have got it right and encourage people to speak up when they see a wrong. There are some very good examples, including the aviation industry, which is a particular exemplar of that. It is the standard that we should be aiming for.

My hon. Friend the Member for Stoke-on-Trent Central, who opened the debate, said that the law looks at how things happen after the disclosure, and always through the prism of an employment relationship. That was a good analysis of where we are and perhaps why there are shortcomings in some of the legislation. I agree that this is about the law giving people the confidence to speak up. I am sure we will return to some of the things we hope to do on that.

[Gareth Snell]

I ask the Minister and his colleagues across Government to look at the way we fund and support our regulatory bodies. Often, the failure reported by a whistleblower would have been prevented from happening in the first place by a properly funded and resourced regulator. As much as anybody else, he will know that times are tough and budgets are tight, but investment in the regulatory framework early doors could help to save money and lives, and prevent people from having to put their own homes on the line to do the right thing.

[Justin Madders]

My hon. Friend makes a very fair point. I suspect that a week ahead of the Budget we will not get the kind of investment he would like to see. He talked about the legislation, focusing on existing employment relationships and the broader ambit of employment. The legislation was probably framed in that way in the first place because that is where the biggest power imbalance lies: between an employer and their employee.

We can consider how we would broaden this out, but we will bring in particular measures with our Employment Rights Bill. Hon. Members will be aware that Second Reading took place last night, when we made some specific announcements on our overall package. The Bill is the biggest upgrade in workers’ rights in a generation, and in it we will address specific issues about whistleblowing on sexual harassment. The Trades Union Congress states that 58% of women have been sexually harassed at work. That is a staggering, appalling figure that must be tackled, and it is one of the reasons why we want to improve people’s ability to ring the alarm bell when sexual harassment occurs.

The Bill will require employers to create and maintain workplaces and working conditions free from harassment, including by third parties. It will strengthen the legal duty of employers to take all reasonable steps to prevent sexual harassment before it starts, and it will enable regulations to specify steps that an employer must take to protect their employees from sexual harassment to ensure that effective steps are taken. It also includes protections for whistleblowers and will make clear that sexual harassment can be the basis for a protected disclosure, which is one of the most important steps we can take to make workplaces safer. Workers who make a protected disclosure will then have legal recourse if their employer subjects them to a detriment for speaking up.

My hon. Friend the Member for Stoke-on-Trent Central mentioned, as did several other Members, the possibility of an office for the whistleblower. There were a number of suggestions about the potential remit and role that it could have. Clearly, the cost and precise functions and powers of that would need careful consideration, particularly in how it would relate to current regulators. The point he made about the resources of regulators is relevant to that. There would also have to be some consideration given to how it would exist as an independent body from Government. I must disappoint my hon. Friend the Member for Congleton by saying that the pledge to create the office did not make it into our final manifesto, but that is not to say we are ruling it out forever and a day. We will consider it as we look at a broader review of the whistleblowing framework.

On that point, I will address the remarks made by the shadow Minister, the hon. Member for Orpington, about the review initiated by the previous Government, which was intended to assess the effectiveness of the whistleblowing framework against its original objectives. As he rightly pointed out, that review was not released before the general election. It certainly does not seem appropriate for us to let that work go to waste; I will talk to my officials about how and when we can release that information, but I see no reason why we should not do so. It will be a starting point for further work in this area.

The number of issues raised today shows that the appetite for reform in this area is much broader than the review commissioned under the previous Government recognised. Of course, other measures are due to be enacted in the next 12 months, but we can do more to ensure people feel confident when they speak out.

As several Members said, the King’s Speech made clear that we will deliver on our manifesto commitment to implement a Hillsborough law to introduce a legal duty of candour on public servants and authorities. The Prime Minister made clear that that Bill will enter Parliament before the next anniversary of the Hillsborough disaster. We believe it will be a catalyst for a change of culture in the public sector by improving transparency and accountability where public services have failed. It will help to address the unacceptable defensive culture that is prevalent across too much of the public sector. It has been said several times that the NHS is one of the worst examples of that; certainly, from my experience, there is a hard focus on trying to justify actions, rather than get to the root of the complaint.

Bishop James Jones’s report made it clear that those things have to change, not just in the NHS, but across the whole public sector. That Bill will be an important starting point in changing the culture both in the public sector and across the country. We all want it to improve so that whistleblowers have the confidence to speak out and have the assurance that, if something happens to them as a result, they will be protected and supported.

[Gareth Snell]

I thank my hon. Friend the Minister for his summation. I will make a couple of final points. I absolutely understand that the office of the whistleblower did not make its way into our manifesto, but I say to the Minister that the circumstances that led us in opposition to support to such a suggestion have not changed. Although I appreciate that we have had an election and Governments have changed, even an undertaking to meet those of us who think this proposal is part of the solution, to discuss it and go through it, would be welcome—

[Justin Madders]

indicated assent.