Whistleblowing Protections

Mark Hendrick Excerpts

Tuesday 22nd October 2024 Westminster Hall

[Anna Dixon (Shipley) (Lab)]

I congratulate my hon. Friend the Member for Stoke-on-Trent Central (Gareth Snell) on obtaining this important debate on whistleblowing, under your chairmanship, Sir Mark. I know from speaking recently to a couple of constituents who are whistleblowers that part of the fear of speaking up, which my hon. Friend rightly highlights, is the imbalance of power between public institutions and the individual whistleblower.

The costs, as my hon. Friend said, are heavy on the individual. They can obviously be emotional, due to the stress of these processes. They can also be financial, when the individual tries to maintain their reputation against the full force of public institutions defending themselves and taking the matter through the courts. Those institutions have full access to public funds, which costs the taxpayer a lot.

Does my hon. Friend agree that the Prime Minister’s promise of a duty of candour could be a step forward in changing that imbalance of power between public institutions and whistleblowers? Hopefully, in time, if the public sector takes that duty of candour seriously, we can reduce the need for whistleblowers to call things out.

[Sir Mark Hendrick (in the Chair)]

I remind Members that interventions are supposed to be brief.

[Gareth Snell]

My hon. Friend the Member for Shipley (Anna Dixon) is absolutely right. We will not mention individual cases today, but we all know of individuals who have struggled doughtily against the huge available resources of large international corporations—public sector bodies in some cases—that have sought to use the weight and resource available to them, through their lawyers and HR departments, issuing threats and intimidation, to prevent people pursuing things they have seen and done that they know to be wrong. The organisations would rather spend that energy, time, money and effort on dismissing the whistleblower’s concern than put that resource into remedying the situation. The way my hon. Friend explained that was first class.

I want to talk about something that I found out relatively recently, as part of my work with WhistleblowersUK. I did not know that to be a whistleblower, the person has to be engaged in an employment role. I genuinely believed that the whistleblowing policies of organisations that someone had an attachment to would protect them if they saw something going wrong. I thought that if someone saw something they believed was bad—such as corruption, malfeasance, misconduct—and did the right thing by standing up and calling it out, as we all say we should, they would be protected, but they are not.

If a patient in hospital sees something, they are not protected. If a parent sees something wrong with a school, college, university or one of the many organisations their children might interact with, they are not protected. If someone is a school governor, although they have various requirements under safeguarding legislation, they are actually exposed in a way they might not be if they were employed. The contractual arrangements for contractors on site, who see the way that organisations work, would not provide protection. That is a glaring, gaping hole in protections, which we need to tackle.

That means that, when somebody does have the fortitude to stand up and say, “This is wrong,” it often ends up in an employment tribunal. The focus then is on the process by which the whistleblower raised the complaint and the detriment that individual may have incurred; it does not deal with the issue about which they were raising a flag. Again, that allows organisations to shift the emphasis and the attention of their own internal processes to that relationship rather than focusing on the issue that was raised. I think the Minister would agree that that needs to change.

The Minister knows that the new Government have made commitments, particularly through the Duty of Candour Bill, to make sure that individuals who have responsibilities in certain organisations and areas have a duty—a clear duty—to stand up and say, “This is wrong.” There also needs to be protection for that individual, so that when they comply with their new duty of candour responsibilities they can also be protected from detriment, regardless of the way in which they make that declaration to somebody who they believe can do something about it. At the moment, they are horribly exposed, which means there is a disincentive for them to do the right thing. It also means that we end up with people who, for a quiet life, would rather dismiss what they see than stand up.

It was only last night, when we were debating the Employment Rights Bill, that the Deputy Prime Minister said, in relation to the new sexual harassment arrangements for whistleblowers in the Bill:

“If they do the right thing and speak up about sexual harassment, the law will protect them.” —[Official Report, 21 October 2024; Vol. 755, c. 53.]

I believe that should apply to anybody who is speaking up to highlight any problem, and not just to those who are employees where they see sexual harassment.

I welcome the fact that the Government have started a conversation about this issue and that they have taken steps, through the Employment Rights Bill, to remedy some of the deficiencies in our employment legislation. However, I return to my point: this needs to be about more than employment. It needs to be about the way we treat anyone who is willing to stand up, have their say and point out wrongdoing.

My right hon. Friend the Secretary of State for Business and Trade was also quite clear last night when he summed up the debate on the Employment Rights Bill, saying:

“Protection for whistleblowers is a day one right.” —[Official Report, 21 October 2024; Vol. 755, c. 140.]

I am glad that we are putting that into legislation, but I say again that it only applies to those people who are whistleblowing in an employment-related context. We need to make sure that that “day one right” of protection applies to anyone who blows the whistle anywhere in the UK.

Obviously, there has been progression. The Public Interest Disclosure Act 1998 made some progress. However, I think it is fair to say that, in and of itself, its time has probably passed, and that there is a need to reconsider seriously how to improve the opportunities for whistleblowers to make declarations in a way that they are comfortable with and that protects them, so that people who see wrongdoing have the confidence to stand up and point it out as a preventive measure, as much as a curative measure after the event.

From my trade union days, I know that my hon. Friend the Minister did admirable work on this issue before he came to this place. Where someone has the confidence that they can speak truth to power, they can stop bad things from happening in the first place. When someone has the confidence that they will be listened to and protected, that encourages people to come forward and highlight problems before there is that horrible accident at work or that social tragedy, or before an act of misconduct costs the state hundreds, thousands and in some cases millions of pounds, which is obviously money that we can ill afford to lose after the inheritance we received from the previous Government.

How can we make the situation better? I ask that question because I genuinely believe that if we are to have this kind of debate, we should talk not only about what the problems are but about how we can make things better. Later in this Parliament I hope to introduce a new version of the Protection for Whistleblowing Bill—a Bill that will comprehensively rewrite the current rules and regulations around whistleblowing. First of all, it will comprehensively define what a whistleblower is, because at the moment that is a point of debate, and because it is a point of debate we end up in litigation and arbitration, with individuals finding that they have to justify why they made a disclosure in the first place rather than everyone focusing on what the disclosure was. We absolutely need to find a way of moving away from that situation.

Such a Bill would also create a statutory power to protect whistleblowers from detriment. I say, again with my trade union hat on, that we all know that financial recompense for suffering a detriment is the only way we can remedy such detriment, but that person has still suffered a detriment; they have still had a loss as a result of their whistleblowing. So, we need to find a way to prevent the loss in the first place.

The Bill would be able to look at how we do compensation and would have a statutory power to investigate and award penalties. Importantly, it would create the office of the whistleblower. The idea of such an office is neat and clear and something that my party has previously committed to in other debates and votes. The office would be able to put that comforting arm around people who blow the whistle, regardless of where or how they blow it. It would allow parity between those large organisations, or the state, with their HR departments, lawyers and resources, and an organisation and office that acts as a friend, support and neutral crutch on which the whistleblower could lean. All too often being a whistleblower takes its toll on that person’s family, and it can be lonely and scary. An office of the whistleblower would allow that burden to be shared with an organisation, an entity, an office that has an understanding of what the whistleblower is doing and hoping to achieve. It would also be able to look across organisations and spot the patterns. All too often, whistleblowers stand up and make a declaration about something over here, and somebody else will make a declaration over there, but nobody is looking at the patterns and asking, “Is there some underlying issue that we need to address?”

The office of the whistleblower would be responsible for identifying those patterns and generating reports saying whether something untoward might be happening in that organisation, part of the state or public sector body. That would be an important way of bringing that preventive measure to bear so that we can crack down on the waste, corruption and malfeasance. We can ensure that those individuals seeking to corrupt the way they work for their own personal benefit can be highlighted and brought to bear.

Creating the office would require the Government to act. It would require primary legislation as well as the political will to say that we need to catch up with some of our European counterparts who have already moved into this space of having an office of the whistleblower. Crucially, the Minister will be aware that only 18 months ago my hon. Friend the Member for Feltham and Heston (Seema Malhotra), when she was shadowing the brief that the Minister now holds, clearly committed the Labour party to supporting an office of the whistleblower. The Labour party supported an amendment to the Economic Crime and Corporate Transparency Act 2023 that would have created an office of the whistleblower. I appreciate that the Minister cannot make a commitment from his position today because of the way that Government works, but I hope he will take away from the debate the commitments made in the past and the way in which the Labour party—now in government—understood the necessity of such an office, and how that has not changed. I ask whether he and his Department could review what the likelihood would be of taking that forward.

There have been reviews of the way that whistleblowing works over time. I understand that the review of the whistleblowing framework by the previous Government was completed in January. That report has not yet been published. Again, will the Minister undertake to go back to his Department, find that report and potentially publish it? If the report is deficient in some way and the review of the framework has not been undertaken in as comprehensive a way as we would all like, would he commit to refreshing it? Even if we cannot move as fast as I would like towards the outcome that I would like, would he look at reviewing the framework so that people at work, or not at work, who witness corruption, malfeasance or acts that endanger public safety have the confidence to say, “This is wrong”? If they can have the knowledge that somebody somewhere is standing with them, and that they have the support of a Government who take this seriously, we could move quickly towards a country where the scandals I mentioned at the beginning—with the devastating events that took place—could be prevented and we could all live happier, safer and better lives.

[Sir Mark Hendrick (in the Chair)]

I remind Members to bob if they wish to be called.