Enterprise and Regulatory Reform Bill

Lord Skelmersdale Excerpts

Monday 10th December 2012 Grand Committee

[Lord Young of Norwood Green]

My Lords, I shall speak briefly to Amendments 23 and 23F, because people who are far more expert in these areas have already forensically examined them. My noble friends Lord Touhig and Lord Wills, have already explained the reasoning behind them. They raise the important issue of how a broad public interest test would interact with the existing good faith test.

When Parliament passed the Public Interest Disclosure Act, it did not place a public interest test in the legislation, choosing instead to define the categories of wrongdoing under which disclosures in the public interest disclosure action fit. Good faith was seen as the appropriate safeguard.

If the public interest test is to be considered at all, it is crucial that it is considered in conjunction with the test of good faith. With the Government’s new test proposed in Clause 15, whistleblowers would need to show that they had reasonable belief that their disclosure was made in the public interest. Later there is the good faith test that their predominant motive for making a disclosure was in the public interest, creating, in effect, a double whammy of double public interest. Amendment 23F, proposed by my noble friend Lord Wills, would that good faith would become a consideration only at remedy stage. There is already a precedent for this, similar to the Polkey reductions used in allowing for unfair dismissal damages to be reduced where there has been contributory negligence.

[The Deputy Chairman of Committees (Lord Skelmersdale)]

My Lords, I hate to interrupt the noble Lord, Lord Young, but there is a Division in the Chamber and therefore, unless he can draw his remarks to a very speedy conclusion, we will adjourn now for 10 minutes.

[Lord Young of Norwood Green]

I can. As I was saying, I am grateful to my noble friends Lord Touhig and Lord Wills for tabling both the amendments, which provide the Committee with an opportunity to debate the proper application of the good faith test in the context of a new public interest test, which we are extremely concerned should not present a double barrier to workers who blow the whistle. We look forward to hearing from the Government on this and welcome the Minister’s assurances on further consultation.