Enterprise and Regulatory Reform Bill

Lord Low of Dalston Excerpts

Monday 10th December 2012 Grand Committee

[Lord Low of Dalston]

My Lords, I have added my name to the amendment but I do not think I can say a lot more than has been so eloquently said already by the noble Lords—they are not my noble friends—Lord Touhig and Lord Wills. Clearly there is a loophole in the law. The court has said that if the matter is to be resolved it is down to Parliament to do it. The Minister’s noble friend and colleague Lord Howe has recognised that there is a need to give attention to this matter and we shall all be interested to hear how far the Government have got with that consideration.

We have the opportunity now to do something about this and I am sure that everyone agrees that we should. I have been horrified by the cases we have heard about—the Manchester nurses and others—where people have been subjected to threats of having their houses burnt down and so on. This is clearly intolerable. There needs to be a legal remedy and the one proposed is perfectly appropriate. It does not impose an unduly onerous burden on the employer, who is simply required to take no more than reasonable steps. That being the case, I strongly urge the Grand Committee to support the amendment.

[Baroness Dean of Thornton-le-Fylde]

My Lords, I support what has been said by the noble Lord, Lord Low of Dalston, who happens to be a friend. If there is a part on whistleblowing in the Bill when it leaves the House, these two amendments will make a significant difference.

We could all regale the Committee with a number of stories about people being bullied and intimidated, but the case in Manchester went the whole hog and the courts were not able to help. Not only were the three nurses concerned unfairly treated but the case sent a strong message to people in the health service to keep their heads down and not to complain because, even if they complain and it goes through the ultimate procedure, the employer will not be able to stand with them. In fact, in this case the employer pursued the nurses for damages.

I do not wish to extend the debate. This is a principal issue in the Bill as it stands and, if this House can make an amendment along the lines of the one proposed—even if it is not worded perfectly at the moment—it will be a major contribution. There are no divisions between the parties on this. We all want to see the role of the whistleblower not only enhanced and supported but protected, otherwise the message going out will be, “We have the legislation, but please do not use it”.

--- Later in debate ---

[Lord Low of Dalston]

My Lords, I strongly support the amendment and hope that I will be worthy of the kind remarks of the noble Lord, Lord Touhig, in referring to my support a few moments ago.

I cannot muster the same forensic analysis as the noble Lord has treated us to but, in my view, the matter is simple. If we leave the good faith test in the Act and add to it the public interest test, which the Government want to add to the legislation, we shall simply be doubling the hurdles that the whistleblower has to clear. When Parliament passed the Public Interest Disclosure Act, it did not insert a public interest test in the legislation. Good faith was seen as the appropriate safeguard, and Dame Janet Smith in her report on the Shipman inquiry commented that it would perhaps make sense if the good faith test were replaced by a public interest test. The Government are acceding to that suggestion but they are leaving in the good faith test. I submit that with this new public interest test inserted in Clause 15, whistleblowers would need to show both that they had the reasonable belief that their disclosure was made in the public interest and that, with the good faith test, their predominant motive for making a disclosure was in the public interest. That creates an additional hurdle for the whistleblower to clear and a requirement to satisfy a sort of double public interest test.

Removing the requirement of good faith, as proposed in the amendment, would simply restore the law to its former balance as between the whistleblower and the organisation, and refrain from imposing additional tests on the whistleblower. Retaining the two tests would unnecessarily complicate the law, requiring the whistleblower to satisfy different tests with different standards: in the one case reasonable belief; and in the other, that there is no ulterior motive. So the amendment would simplify the law, which is in danger of becoming overcomplicated, and clarify and simplify the protection for whistleblowers. I urge the Committee to accept it.

[Lord Wills]

My Lords, I, too, have added my name to the amendment and would like to say just a few words in support of it.

As we have heard, the new test proposed in Clause 15 attempts to remedy a loophole created by the case of Parkins v Sodhexo Ltd. Most people agree that that loophole should be closed but, in doing so, the Government risk creating a new barrier to whistleblowers, adding new complexity to a legal framework which can already be daunting enough for those wishing to expose wrongdoing. The amendment proposed by my noble friend Lord Touhig is an attempt to remedy that by removing the “good faith” test and, as he explained, to rebalance the legislation back towards protection of the whistleblower.

In doing that, as we have just heard from the noble Lord, Lord Low, my noble friend is following the recommendations of Dame Janet Smith in the Shipman inquiry, who said that in her view the words “in good faith” could be omitted from the Public Interest Disclosure Act. She argued:

“The three tiered regime of the PIDA, with its incrementally exacting requirements, should afford sufficient discouragement to those minded maliciously to raise baseless concerns”.

She continued:

“If the words ‘in good faith’ were removed from the PIDA, the test under the PIDA would be brought more closely into line with the test for ‘malice’ in defamation proceedings. It would seem to me to be desirable that the tests should be as close as possible so that a person thinking of making a report can be safely advised about his/her position in respect of both types of proceedings”.

I know that the Government share the view of everyone on the Committee that everything possible should be done to encourage the exposure of wrongdoing, and I hope that even at this relatively late stage, they will feel able to accept what is a modest and sensible proposal to that end. If, for whatever reason, they do not, I would be grateful if the Minister could explain why the Government reject the arguments of Dame Janet Smith. Why do they not accept that the three-tiered regime, with its incrementally exacting requirements, affords sufficient discouragement to those minded maliciously to raise baseless concerns—especially as they are remedying the loophole created by the case of Parkins v Sodhexo Ltd? Secondly, can the Government explain why they think that it is not desirable for the tests in the Act to be brought more closely in line with the test for malice in defamation proceedings?

Having said all that, I understand that the Government are engaged constructively in discussion with Public Concern at Work. I hope that they may feel able to accept the compromise amendment which I have tabled as Amendment 23F. That recognises that, for whatever reason, the Government are not keen to accept Amendment 23 but might be prepared to accept an amendment which removes good faith as an issue in assessing liability but retains it as a consideration in assessing remedies.

As I am sure the Minister will be aware, precedent has been established with the Polkey reductions, which are used in allowing for unfair dismissal damages to be reduced where there has been contributory negligence. Amendment 23F is a compromise which will at least mitigate the problems with the status quo by ensuring that motive will not play a central role in securing protection for whistleblowers. Although the Minister may not be able to give a definite statement on this now, I hope that he can reassure us that he expects that he will be able to reach a form of wording which will be satisfactory to all sides in a compromise amendment.