Queen’s Speech

Lord Touhig Excerpts

Wednesday 16th May 2012 Lords Chamber

[Lord Touhig]

My Lords, soon after I was elected to the other place I was successful in the ballot to introduce a Private Member’s Bill and I promoted whistleblower protection. Unfortunately, my attempt to enact into law a Bill to protect whistleblowers was unsuccessful in 1996, but I was glad that the Bill was later taken up by Richard Shepherd, MP, and in 1998 the Public Interest Disclosure Act became law.

The Act gave protection to individuals who make certain disclosures of information in the public interest and it allowed such individuals to bring action in respect of victimisation. At that time, this country was the first to offer whistleblower protection to workers in all sectors, but over the years a number of legal loopholes have come to the fore and now the Act is ripe for review. I understand that the Government, rather than do this, intend to bring forward legislation this Session to remove just one of the loopholes by which workers complaining about their private employment rights can be protected.

While I support the premise of such an amendment, I worry that it will fail to address the underlying problem. I fear that it will be viewed as an obstacle to genuine and honest whistleblowers who will have to show that their concern is in the public interest. More than that, the amendment does not address the issue of private employment rights and will instead result in a field day for lawyers. In my view, the proposed amendment should form the basis of a wider consultation of business groups, trades unions and others to make sure that this law is fit for purpose.

That leads me to my main concern: that this is a missed opportunity to consult more widely on whether the Public Interest Disclosure Act 1998 is achieving its aim of protecting workers who raise concerns in the public interest. It will also deny us the chance to look more closely at workplace cultures that we might wish to promote in the future. Robert Francis, in his first report of the Mid Staffordshire NHS Foundation inquiry, highlighted the real difficulties that whistleblowers face when he said:

“It must not be forgotten what pressures can be applied to deter staff from coming forward, and how little it can take to dissuade nervous individuals from pursuing matters”.

A report by the Select Committee on Culture, Media and Sport in the other place into News International and phone hacking highlights the need to make sure that whistleblower protection in the UK is effective. If there is a poor corporate culture, real and effective protection needs to be offered to workers so that the alarm can be raised and the issued addressed before there is a public outcry.

I would like to draw attention to the areas within the legislation that could do with a closer look and a thorough public consultation. The first is that of vicarious liability. Two years ago, three nurses from a walk-in clinic raised concerns about a fellow nurse lying about their qualifications. However, the nurses were subject to bullying and harassment from co-workers. One of the nurses received a telephone call threatening to harm her daughter and to burn down her home. The case proceeded as far as the Court of Appeal, which found that vicarious liability does not exist in the Public Interest Disclosure Act, as it specifically does in discrimination law.

From the experience on the whistleblowing advice line run by Public Concern at Work, harassment and bullying by co-workers is not uncommon, and for protection to be lacking in this area is extremely problematic, as it means that whistleblowers could think that they are protected when they are not. One way of overcoming this would be to examine the framework of the Equality Act 2010.

The second issue relates to the scope of protection offered. Loopholes have been allowed to develop whereby student nurses, doctors, healthcare professionals and student social workers are not protected by the Public Interest Disclosure Act. These loopholes have meant that those who are new to the workplace will not speak up without being safe in the knowledge that they will be protected for raising their concerns. Instead they risk damaging their careers, and as a result we risk creating a culture of silence among the workers of tomorrow. I argue that the list of those covered needs to be revised to include non-executive directors, including public appointments, volunteers and job applicants.

Thirdly, there is the issue of gagging clauses found in compromise agreements and contracts. These prevent individuals from speaking up about wrongdoing. There are stories of increasing secrecy in particular sectors and heavy-handed lawyers giving the impression that individuals have signed a confidentiality agreement that prevents them speaking up about wrongdoing. This in itself is wrong in law, and the Government need to review how they might address this conundrum.

One high-profile example is the case of Dr Kim Holt, a doctor at Great Ormond Street, who was victimised after she and three other doctors wrote to management warning that staff shortages and poor record-keeping would lead to a tragedy. Six months later, her worst fears became reality when an inexperienced doctor who had replaced her at the clinic failed to spot that Baby Peter was the victim of serious physical abuse.

More needs to be done to promote the principles behind the Public Interest Disclosure Act and to prevent our public bodies giving the impression that those who leave their employment are never meant to raise these issues again. The Act needs a great deal more discussion and there needs to be more consultation on it. It is unsatisfactory if the Government wish to change the law without allowing for the widest possible consultation.

If we are to foster strong cultures of corporate accountability in the United Kingdom, it is only right that we ensure that we protect workers who raise concerns in the public interest and promote this protection so that raising concerns effectively becomes second nature for all those who work in Britain.