Whistleblowing at Work

Lord Wills Excerpts

Monday 24th March 2014 Grand Committee

Asked by

[Lord Wills]

To ask Her Majesty’s Government whether they will implement the recommendations of the Commission established by Public Concern at Work on Whistleblowing.

[Lord Wills (Lab)]

My Lords, 100 years ago, the great American, Justice Louis Brandeis, said that electric light is the best policeman. The merits of transparency have long been recognised, and so too has it long been recognised that whistleblowing—making a disclosure in the public interest—is crucial to the promotion of transparency in public organisations. Almost 20 years ago, the Nolan committee said:

“All organisations face the risks of things going wrong or of unknowingly harbouring malpractice. Part of the duty of identifying such a situation and taking remedial action may lie with the regulatory or funding body. But the regulator is usually in the role of detective; determining responsibility after the crime has been discovered. Encouraging a culture of openness within an organisation will help: prevention is better than cure. Yet it is striking that in the few cases where things have gone badly wrong in local public spending bodies, it has frequently been the tip-off to the press or the local Member of Parliament—sometimes anonymous, sometimes not—which has prompted the regulators into action”.

We have seen the value of whistleblowers demonstrated over and over again, most recently in the revelation of scandals in the NHS. The Government recognise this and the Prime Minister has said:

“We will always back whistleblowers when they challenge poor standards, particularly in large organisations”.—[Official Report, Commons, 26/2/14; col. 257.]

He has also said that,

“we should support whistleblowers and what they do to help improve the provision of public services”.—[Official Report, Commons, 24/4/13; col. 882.]

And yet we are still some way away from a situation in which whistleblowers are adequately protected, and we are still further from the creation of a comprehensive culture in public institutions in which whistleblowing is encouraged.

Whistleblowing reveals wrongdoing in great public institutions and those carrying out functions in the public interest, but such institutions are always powerful, usually driven by a potent internal culture, and often inward-looking. Every case of whistleblowing challenges the powerful vested interests that run such institutions. After every scandal is revealed, after the abuses have been tackled and the guilty punished, and after the fine words about whistleblowers have been spoken, it is all too easy for those dominant interests to revert to carrying on much as they did before. The powerful never like being challenged.

The inward-looking culture that dominates so many of our great public institutions discourages whistleblowing. Repeated failures within the NHS have highlighted not only how important whistleblowers can be in protecting the public, but also how very difficult they find it if they try to expose incompetence and wrongdoing. These problems are not confined to the NHS. For all the police wrongdoing after the Hillsborough disaster that has now been exposed, for 20 years no one blew the whistle. No one blew the whistle on the scandal of MPs’ expenses, even though the Fees Office was well aware of the scams that were going on. There is clearly a need to do more to encourage and protect whistleblowers. Just this month, the National Audit Office made a series of recommendations for improvements, including the creation of a strategic lead within central government, a series of clarifications, and more effective communication of existing arrangements and protections. I hope that the Minister will consider those recommendations carefully.

The Public Interest Disclosure Act 1998 was a landmark piece of legislation providing statutory protection for whistleblowers, but it is now nearly 15 years old and it has never been reviewed officially. But the whistleblowing commission set up by Public Concern at Work and chaired by a retired Court of Appeal judge, Sir Anthony Hooper, has done so. Following a public consultation and research produced by Public Concern at Work, Ernst & Young and the University of Greenwich, the commission has made a number of recommendations aimed at changing culture and extending, simplifying and improving the processes for delivering protections for whistleblowers. If we are to give whistleblowers the protection they need, the Government need to address these recommendations and, if they are not willing to adopt them, at least give the reasons why.

I would be grateful if the Minister could give his response to the following key recommendations made by the commission. To help change workplace culture, the commission has recommended the introduction of a code of practice on whistleblowing that would set out best practice for employers, workers and whistleblowers. Similar to ACAS codes of practice, this code should be rooted in statute, taken into account by the courts in whistleblowing cases, and included in the inspection regimes of regulators. Will the Minister pursue this?

Next, legal protection for whistleblowing in the Public Interest Disclosure Act needs to be extended to prevent the blacklisting of job applicants, which is such a potent disincentive to whistleblowing. Protection also needs to be extended to those working in sensitive positions in organisations that could benefit significantly from encouraging and protecting whistleblowers. The definition of “worker” needs to be clarified—and there is some doubt about the current definition under the recent Enterprise and Regulatory Reform Act—so that it includes without doubt student nurses, doctors, healthcare professionals, social workers and general practitioners. It should also be clear that the term “worker” includes volunteers, interns, non-executive directors, professional partners, including partners in LLPs, priests and ministers of religion. These are all categories of worker listed under the Equality Act 2010 but not currently protected, or at least it is not clear that they are, under the provisions of the Public Interest Disclosure Act. Overseas workers raising concerns about their UK subsidiaries need protection as well. I would therefore be grateful if the Minister could confirm that the Government will find the first available legislative opportunity to extend such protections.

Whistleblowing protection needs to be extended to allow individuals seeking advice from trade unions to be more easily protected. Whistleblowing protection needs to be simplified to ensure that everyone understands that gagging clauses are illegal, to make the causation tests for dismissal and detriment the same, and to make sure that whistleblowers can easily raise concerns with regulators. Will the Minister undertake to do this?

At present, it is possible for wrongdoing to be buried in settlements as there is no open register of claims under the Public Interest Disclosure Act. In 2008, the then Government introduced a process whereby claimants could request that their claims be sent to the relevant regulators, but this process is not mandatory. Not all such claims were sent forward, and it should be mandatory. The employment tribunal process needs to be improved for whistleblowing claims, a register of claims under the Public Interest Disclosure Act should be made available to the public, and the referral of such claims to regulators should be made mandatory. Again, I would be grateful if the Minister could confirm that the Government intend to make progress in these areas.

There are also complex issues around extending whistleblowing protection to members of the armed services and those involved with national security. At the moment, national security whistleblowers enjoy no protection, even if the concerns they raise have nothing to do with national security but are about other issues such as human rights abuses, bribery, procurement and corruption within the chain of command. I should be grateful if the Minister would agree to look at these issues and write to me with proposals for extending protections in this area. Perhaps he could also copy the letter to those noble Lords who are taking part in today’s debate and place a copy in the Library.

Finally, the Public Interest Disclosure Act does not protect disclosures by workers, primarily in law firms, of information that is subject to legal professional privilege, even where the worker raises the concern with a senior colleague in their firm or with the client. This appears to be an anomaly as in both cases such communication would not be a breach of the privilege or of confidentiality, even though the information itself is privileged. There would therefore seem to be no good reason to deny the protection to such whistleblowers. I would be grateful if the Minister would agree to bring forward an amendment to that effect at the first available legislative opportunity.

I recognise that this is a long agenda for the Minister to address, but it is still not comprehensive. This is such an important area of public policy, with the potential to transform the way public services are delivered, that I hope the Minister will be able to engage constructively with it and make significant progress on all the issues I have raised today.