Whistleblowing at Work

Lord Low of Dalston Excerpts

Monday 24th March 2014 Grand Committee

[Lord Low of Dalston (CB)]

My Lords, I am particularly grateful to the noble Lord, Lord Wills, for securing this debate because I took quite an interest in the legislative framework on whistleblowing when the Enterprise and Regulatory Reform Bill was going through the House last year; and because I argue there are reasons for believing that the need for that framework to be as positive and supportive as possible grows ever greater by the day. Indeed, that point was made by the noble Lord, Lord Phillips. Some themes are beginning to emerge—that is just one of them—but I hope that it will do no harm if I underline one or two of them.

Research commissioned by the charity, Public Concern at Work—the organisation which commissioned the report whose implementation we are debating—has shown that in recent years, at least, attitudes to whistleblowing and whistleblowers are positive. However, it was not always so. This led to a series of Private Members’ Bills in the Commons during the latter half of the 1990s, sponsored by the then MP, Tony Wright, and the noble Lord, Lord Touhig, which finally culminated in the Public Interest Disclosure Act 1998, steered through by Richard Shepherd MP, which sought to give legal protection to whistleblowers against the negative reaction their conduct attracted from fellow workers and employers.

There are good reasons for keeping this legislation under review so that it remains fit for purpose. The commission whose report we are discussing makes a compelling case in its own terms for saying that it could do with updating and simplifying in a number of respects. Indeed, Public Concern at Work is much to be commended for commissioning this report, and the commission itself is to be congratulated on producing a report which is both comprehensive and lucid, and all within a modest compass.

I hope that nobody imagined that I was trying to pour cold water on any of its recommendations by upsetting my glass of water when the noble Lord, Lord Wills, was in full flood. He was in full flood and I am glad to say that I created only a minor one over here.

The report argues that PIDA is not working as intended, and that it could benefit from some amendment. Whistleblowing may be viewed in a positive light at a societal level but this is not commonly how it is experienced by the whistleblower at a local level, where whistleblowers are typically regarded as trouble-makers by their employers and traitors by fellow workers. Blacklisting of workers who raise concerns about health and safety issues is thought to be commonplace in the construction industry and is also found in other sectors. Lisa Martin, for example, who exposed serious abuse at the Orchid View care home revealed that she had been unable to get a job in the care sector ever since reporting her concerns to the police in 2011. Some workers have even had death threats. It is little wonder then that in such a climate, workers fail to speak up because of their concern that they will not be listened to or that nothing will be done at best, or from a fear of reprisals at worst. The report makes a number of sensible recommendations for dealing with the current legislation’s shortcomings in dealing with these abuses. I hope very much that the Government will look at them very seriously.

However, as I have hinted, the reasons for welcoming this report and urging its rapid implementation in full go wider. Such is the decline of trust in many of our key institutions—politics, the police, the NHS, the press and even the BBC—that whistleblowing now assumes a strategic significance, outstripping anything that it had before. There has been a succession of scandals, such as the Savile affair, Orchid View, which I have mentioned, the system of care homes in north Wales, the rigging of LIBOR and the foreign exchange market, price fixing in the energy industry, Hillsborough, the Mid Staffordshire NHS Foundation Trust and phone hacking at the News of the World. All those scandals show that once where we thought we could rely on the corporate culture to ensure that organisations behaved properly, and that if they did not, wrongdoing was brought to light and malefactors were brought to book, we now have to rely on the whistleblower as our last defence against the corporate culture which thrives on malfeasance. As the report says in its foreword:

“Effective whistleblowing arrangements are a key part of good governance. A healthy and open culture is one where people are encouraged to speak out, confident that they can do so without adverse repercussions, confident that they will be listened to, and confident that appropriate action will be taken”.

The commission makes a number of recommendations designed to promote this strategic role of whistleblowing and it is to those that I particularly want to draw attention. Recommendation 1, on which the noble Lord, Lord Wills, spoke at some length, says that,

“PIDA be amended to authorise the Secretary of State … to issue a code of practice on whistleblowing arrangements, and provide that such a code of practice must be taken into account by courts and tribunals wherever it is relevant to do so”.

The report contains a draft code of practice which is recommended to the Secretary of State as a basis for consultation. Recommendation 8 states:

“The Commission recommends a simplification of PIDA”.

Recommendation 10 suggests that,

“the Secretary of State uses the powers set out in Section 20 of the ERRA”—

Enterprise and Regulatory Reform Act—

“2013 to add”,

a number of categories of workers to PIDA, including job applicants who are victims of blacklisting.

Recommendation 25(d) suggests that the Government “undertake research” to assess, inter alia,

“whether a state sponsored agency could carry out strategic litigation and give legal support to whistleblowers (similar to the model of the Equality and Human Rights Commission and its work in discrimination cases)”.

The Government have given a commitment,

“to ensuring a strong legislative framework to encourage workers to speak up about wrongdoing, risk or malpractice without fear of reprisal”.

In their national action plan for open government, the Government have agreed to take into account the findings of the Whistleblowing Commission and to consider legislative change, statutory or non-statutory codes of practice, guidance and best practice measures. I look forward to the Government delivering on those commitments.

Finally, the Government launched their own consultation on the whistleblowing framework last July. It would be good to hear from the Minister about the progress of that call for evidence and when we are likely to get the Government’s response to the evidence received.