Enterprise and Regulatory Reform Bill

Lord Touhig Excerpts

Wednesday 14th November 2012 Lords Chamber

[Lord Touhig]

My Lords, I want to follow on with much of the theme of whistleblowing spoken about by my noble friend Lord MacKenzie of Culkein. The revelations of the Jimmy Savile scandal paint a sadly familiar picture about the culture of silence. As with other scandals and disasters in recent times, such as Mid Staffordshire and phone hacking, some people knew about his appalling behaviour and were prepared to turn a blind eye. Some can legitimately say that they had only heard a rumour or conjecture, or that they only had a suspicion. Others will say that they spoke up but were ignored. How do we move on from the damaging perception that speaking up is futile? An all-pervading culture of silence operates in the workplaces of Britain. It is clear from these scandals that we need to remove barriers that discourage whistleblowers.

A great deal has already been done to improve whistleblower protection. Former Members of Parliament Ian McCartney and Tony Wright led the way. Mr Richard Shepherd MP played an important part by introducing a Bill, and my noble friend Lord Borrie and the whistleblowing charity Public Concern at Work have been campaigning on this for some years. I was pleased to have been able to introduce the first whistleblowing Bill in the other place in 1996. Unfortunately, that Bill failed, but a Private Member’s Bill introduced two years later by Richard Shepherd received cross-party support and reached the statute book. The Public Interest Disclosure Act protects individuals who make certain disclosures of information in the public interest and allows them to bring action in respect of victimisation. At that time, the United Kingdom led on the corporate governance agenda. We were the first country to offer whistleblower protection to workers in all sectors. However, since then, a number of legal loopholes have come to the fore, and the Act is now ripe for review.

In the Bill before us, the Secretary of State proposes to remove one of the loopholes in the means by which workers complaining about their private employment rights can be protected. That might be a good aim, but I fear that introducing a public interest test will not deal with the problem. It will make legislation that is already showing signs of strain more difficult and complicated for workers to navigate their way through—a point made quite ably by the noble Lord, Lord Low of Dalston, and my noble friend Lady Dean of Thornton-le-Fylde.

Public Concern at Work and the BMA have argued that the Bill will be a barrier to whistleblowers. Business and trade unions have suggested that the amendment to the Public Interest Disclosure Act set out in Clause 15 will not tackle the problem of claimants using the whistleblowing laws in private employment disputes. Indeed, it will cause more confusion, litigation and uncertainty for all parties involved. While we would all agree that the whistleblower legislation should have public interest at its core, as currently drafted, this Bill will discourage the ordinary, honest worker who has witnessed malpractice from speaking up about difficult issues, as it adds another layer of complication to the law and will only enrich lawyers. I hope that in Committee some further consideration is given to this test to see how it will operate within the framework of whistleblower protection. During the Bill’s passage in the other place, two amendments were put forward to try to remedy these perceived deficiencies. Sadly, the Government would not accept them. We need to consider whistleblowing law in the round. As some recent news reports show, it is important that nothing is done to discourage whistleblowing.

I look forward to some consideration being given in Committee to the issue of vicarious liability. A loophole in the protection for whistleblowers has arisen in the context of three nurses from Manchester who raised a concern about a colleague lying about his qualifications. The nurses were concerned about the impact that this might have on patient care. They raised their concern within their service and their primary care trust, and it was upheld. However, the nurses were subject to bullying and harassment from co-workers. One of the nurses received a telephone call threatening her daughter and to burn down her house. The case went to court and 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. Shortly after the publication of the judgment, the noble Earl, Lord Howe, the Health Minister, agreed that this area needed to be reviewed. He was quoted in the Independent on 31 October last year as saying:

“We are considering whether we need to do more to protect whistleblowers following this judgment. It was a complex case”.

We clearly welcome the response of the noble Earl, Lord Howe.

I know from my contact with Public Concern at Work that people calling its advice line speak of harassment and bullying by co-workers after they have raised a concern. If there is to be no protection in this area, the matter will be extremely problematic, and whistleblowers could be facing a cardboard shield in terms of legal protection. They will simply not blow the whistle when something is wrong. My noble friend Lord MacKenzie listed a number of cases where whistleblowers have played an important role. When I first took up the issue of a whistleblowing Bill, it was after seven reports of ferries sailing with bow doors open before the “Herald of Free Enterprise” went down. I had a young girl come to me. She was a 16 year-old student who had a Saturday job. She worked on the delicatessen counter in a supermarket, where she discovered that the manager was changing the sell-by dates on cooked meats. In all these instances, people were victimised as a result of bringing these matters to public attention. That is why we need strong law.

It surely cannot be right so far as vicarious liability is concerned that an employer can fail to do enough to protect a whistleblower from victimisation and yet escape any liability. The simple answer to this problem is to mirror equality legislation—that may be something that we can pursue in Committee. As it stands, this Bill is bad news for whistleblowers. It is up to us in this House to make sure we do all we can to protect them.