Office of the Whistleblower Bill [HL]

Lord Hendy Excerpts

2nd reading
Friday 25th June 2021 Lords Chamber

[Lord Hendy (Lab)]

My Lords, I too congratulate the noble Baroness, Lady Kramer, on introducing this Bill. She and the noble Baroness, Lady Altmann, who it is a pleasure to follow, are right to highlight that fundamental change to the legal framework for whistleblowing is necessary.

Having represented whistleblowers—indeed, the noble Baroness, Lady Kramer, mentioned one of my cases in her opening speech—and had the benefit of discussions with leading experts in the Institute of Employment Rights and with my friend Professor David Lewis of Middlesex University, I suggest the following eight points for consideration in the consultation that the Bill proposes.

First, there should be a statutory right to speak out and no civil or criminal liability for doing so within the legal confines of what whistleblowing is.

Secondly, all workers, including the police, armed services and security services, should have the protection of whistleblowing. Of course, it is understood that publication on matters of state security must be protected.

Thirdly, “reasonable belief” as a qualifier for public interest disclosure should be replaced by “reasonable suspicion” on the part of the worker, as proposed by Dame Janet Smith in the Shipman Inquiry.

Fourthly, trade unions have a role to play. A full-time trade union officer should be able to certify a protected disclosure and should be a legitimate recipient of a whistleblowing disclosure. Trade unions should have the right to bring proceedings on behalf of whistleblowers in the name of the trade union.

Fifthly, the list of wrongdoing already in the legislation should also include gross mismanagement or maladministration.

Sixthly, we should remove the public interest test and substitute for it a protected disclosure of a specified type of wrongdoing, as listed in the legislation, made to an appropriate recipient, including the office of the whistleblower.

Seventhly, measures to preserve the confidentiality of the disclosure and the whistleblower are needed. Measures are of course required to protect against reprisals against whistleblowers. The burden of proof should be on the employer.

Eighthly, there should be a statutory code of practice for workers and employers, which should extend to the procedure for whistleblowing, communication of a whistleblowing claim, confidentiality and anonymity, protection against reprisal, investigation and its timescale, feedback, hotlines, training and so on. The Bill from the noble Baroness, Lady Kramer, is a great start.