Enterprise and Regulatory Reform Bill

Lord Borrie Excerpts

Monday 10th December 2012 Grand Committee

[Lord Marland]

My Lords, I have been very interested in the whole discussion on whistleblowing. I thank the noble Lord, Lord Touhig, and his team for their input to our thinking in the past few weeks. It has shed light on a number of issues that we will deal with later in his amendments, which are well thought out and on which we are coming to a conclusion. I want all Peers to know how important we believe this matter to be and how important it is to get it right. We are all singing off the same hymn sheet and obviously want to protect the whistleblower, and that is very much part of what we want to do.

My concern is that the amendment would narrow the whistleblowing provision. Public interest is critical: that is the primary thing rather than breach of contract. The noble Lord, Lord Young, has thrown up a number of examples of breach of contract and we could counter with examples showing where it does not quite work. I am delighted that the noble Lord, Lord Borrie, has just arrived because he is the one we have looked back to in coming forward with this. I wanted to look this up when we first embarked on this issue: at Second Reading on 11 May 1988—we were only children then—the wisdom of the noble Lord, Lord Borrie, had been honed to absolute perfection in the Public Interest Disclosure Act. I shall not read all of his speech but the following words are spot on. He said:

“As I hope I have made clear, this measure will encourage people to recognise and identify with the wider public interest and not just their own private position”.—[Official Report, 11/5/98; col. 891.]

I consider that in returning to contract people would identify with private position rather than the wider public interest. That is the seriousness of the threat. My view and that of the Government has not changed since then—I have given only an extract from an excellent speech—and I believe that we should carry on on that basis. I hope that will encourage the noble Lord to withdraw his amendment.

[Lord Borrie]

It is hardly for me to criticise when the Minister has quoted from a speech of mine in the most favourable terms, but the debate was in 1998, not 1988.

[Lord Marland]

I apologise. Of course, the noble Lord’s wisdom had been honed even further by 1998, which gives the speech more gravitas.

--- Later in debate ---

[Lord Borrie]

I apologise for not being here earlier when the subject of whistleblowing obviously came up in discussion. I was hoping to be here from the beginning, but I am afraid I am one of those caught by having an interest in another Bill—the Crime and Courts Bill—that is going through the Chamber. I waited until my interest had ceased there before coming here, for which I apologise.

I support this amendment very warmly. The more I hear of it from speakers from the Liberal Democrat Benches and the Cross Benches, as well as from the Official Opposition, the more strongly I feel that there is a gap in the whistleblowing legislation that needs to be filled.

The Public Interest Disclosure Act 1998 was a Private Member’s Bill that would not have reached this House at all had it not been for the efforts of Richard Shepherd, still a Member of Parliament for Aldridge-Brownhills, who took up the cudgels, helped by the organisation Public Concern at Work, which still exists and does valuable work. When he had the support of the Commons, I was able to take on the task of putting it through the House of Lords. Several of my supporters at that time are sitting in this Room today, including my noble friend Lady Dean of Thornton-le-Fylde, who has just spoken so helpfully on this amendment.

I feel that the gap in the whistleblowing legislation is a fundamental one that really needs to be filled. A whistleblower is protected against unfair dismissal if he is covered by the existing legislation and has reported on some wrongdoing in the workplace, but he cannot be protected from fellow employees. They may engage in bullying, harassment, or whatever you would like to call it, against the whistleblower for doing what many people in certain cultures within certain employee workforces would call “sneaking”. The whistleblower has snitched on fellow workers, and in many places of employment that is regarded as wrong and it is considered that the whistleblower deserves to be pushed around in every possible way. Making the employer responsible or vicariously liable—I am sorry to use that phrase if noble Lords are fed up with the lawyer language in this place—for the faults and errors in the culture of their workforce is what is needed. That will do the trick, making it in the employer’s own interests to ensure that victimisation, harassment and bullying does not take place. It will be a powerful deterrent if this amendment is passed.

A whistleblower can be affected adversely not only by his employer, for which there has now been protection for many years, but by fellow employees, and this amendment is meant to deal with that. My noble friend Lord Touhig was active in this area in the 1990s, before I was. If this amendment is carried it will be because he and Public Concern at Work have realised and understood that there is a gap that must be filled when we have the opportunity.

--- Later in debate ---

[Lord Young of Norwood Green]

My Lords, Amendment 23D aims to improve transparency around whistleblowing cases that have been settled privately where it is in the public interest that this information should be in the public domain. I should like to put on the record from the outset that I would not wish to see this introduced without further protections against blacklisting of whistleblowers.

Since the cross-party initiative that brought the Public Interest Disclosure Act into force there has been considerable ongoing debate and discussion around its operation and effect. This has not always been informed by reference to analysis of cases, in part because they have not been readily accessible.

Claims made to the employment tribunal, including those made under the Public Interest Disclosure Act, are not made public, unlike in civil courts. At present, three-quarters of PIDA claims settle in private, with no information in the public domain about the underlying wrongdoing. The lack of openness is exacerbated by the widespread concern that many employers seek to gag employees from making protected disclosures. It is frequently reported in the public sector that independent reports into concerns raised by a whistleblower are kept from the public eye.

In 2008, my noble friend Lord Borrie tabled an amendment on this but the Government’s reasons for rejecting it were twofold: first, a fear of ambulance-chasing lawyers contacting the parties; and, secondly, untested allegations being in the public domain. As a compromise, the Government brought in a system of regulator referral, where claimants can elect to send their claim forms to a person prescribed under PIDA—for example, systems regulators such as the FSA or the CQC. This is inconsistent with the principle of open justice and is not ideal as it puts pressure on whistleblowers to withhold consent, or some individuals will use their consent as a bargaining chip in settlement negotiations. Where consent is withheld, the underlying concern will be hidden from public view.

There is no uniform way for regulators to deal with such concerns and some regulators do not even know of this provision. It is strange that a law which is all about promoting transparency and accountability in the workplace should have its use shrouded in secrecy. Given the proportion of PIDA claims which are settled, it is entirely probable that a public concern may lie unaddressed, buried in a claim and shielded from view.

The amendment should be coupled with the blacklisting provisions, thereby limiting negative consequences for individual workers. It is important that there should be open justice in whistleblowing claims and that it should be brought into line with the Civil Procedure Rules. I beg to move.

[Lord Borrie]

I hope the Government are positive about this amendment. Secret justice is inherently evil unless there is some very strong argument the other way such as public security. When this is not the case, the Government will have a very difficult job convincing us that things are all right as they are.

[Lord Marland]

I have a nasty feeling that I am going to disappoint the noble Lord, Lord Borrie, who of course speaks with a wealth of experience. I have observed tribunals over time, and what I have seen is that when names are published and the press get hold of it, they often put an imbalance into the equation. I believe that giving advance warning of the case means prejudice may build up against either side. This can often be seen in press reports on tribunal cases and I think that is unfair. Of the tribunals I have observed—although not been involved in—that have been reported in the press, there have been many times where I would say at the end of the day the press have taken one side or the other and not given a balanced view—and that is what becomes of a public airing.

No one is saying for a moment that this process should not be transparent but people are saying that there should be fairness. This applies to both parties. We accept the transparency issue but I am afraid that, on this basis and from the experience that we have had, and my experience in particular, I do not think it is fair on either party. As such, it is not an amendment that particularly finds favour despite the fact that we seem to have agreed on most things today and will doubtless continue to do so. In the spirit of Yuletide, I hope the noble Lord will agree—I am looking at his face now because he is playing poker—to withdraw his amendment.