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.

Tackling Rogue Builders

Mark Hendrick Excerpts

Tuesday 13th June 2023 Westminster Hall

[Sir Mark Hendrick (in the Chair)]

I will call Mark Garnier to move the motion, and then call the Minister to respond. There will not be an opportunity for the Member in charge to wind up, as is the convention for 30-minute debates, although there will obviously be opportunities for interventions. I am sure that the Minister will accommodate those.

[Mark Garnier (Wyre Forest) (Con)]

I beg to move,

That this House has considered Government policy on tackling rogue builders.

Thank you very much, Sir Mark. I am conscious that we may have to break off to vote, so I will try to keep my words to the point. I thank my hon. Friend the Member for Mid Worcestershire (Nigel Huddleston), who is my constituency neighbour, for stepping into the breach this afternoon. He and I are very good friends. He is an outstanding Minister for International Trade and is replying on behalf of the Minister for Enterprise, Markets and Small Business, my hon. Friend the Member for Thirsk and Malton (Kevin Hollinrake), who is held up in a Bill Committee. I appreciate that this Minister may not be able to answer every single issue that I intend to raise.

It was nearly 18 months ago that I first brought my presentation Bill to the House, seeking to require the Government to look into the possibility of a licensing regime for builders operating at the smaller end of the market—servicing those people, for example, seeking domestic repairs or small business repairs. That area is known as the repair, maintenance and improvement sector, and it is the RM&I sector that I will concentrate on today. The Minister—when I refer to the Minister, I am in fact referring to his colleague, the Minister for Enterprise, Markets and Small Business—will be aware that at the time the Government were not minded even to look at the possibility of the sector being regulated.

Since then, of course, we have had several new Prime Ministers and a reorganisation of Government Departments, but the Government appear to be, dare I say it, increasingly less interested in talking about this consumer minefield, not more. The Minister, who I have an immense amount of respect for, and I have chatted informally about that and we agreed to meet, accompanied by the Federation of Master Builders, which is championing the cause of improved experience for consumers. It has been difficult to get a meeting set up, but I am delighted to say that we now have a meeting in the diary for the beginning of July.

The issue of rogue builders in the RM&I sector is not widespread, but it is appalling when it occurs. It is important to set out that the majority of builders in the sector are good and decent people. Last week, I had the pleasure of being a judge for the Federation of Master Builders awards, which will happen later this year. It is refreshing to see just how innovating building companies are when it comes to training staff, ensuring health and safety, in some cases offering medical insurance and training for emergencies. Indeed, some of the building firms up for awards demonstrated to me that their reputation is second to none and that they work tirelessly to ensure the longevity of their business through word of mouth and positive endorsements from customers and clients.

--- Later in debate ---

[Giles Watling (Clacton) (Con)]

I have a constituent, Michelle Thomas, who paid £70,000 for some restoration work to her house, and the house was left untenable. Building regulators said it should be destroyed. She has paid a further £70,000 and had a very honourable builder come and put it all right.

I am amazed that the Government are not minded to regulate the issue, because, as my hon. Friend says, it would be to the benefit of legitimate good builders who work hard and do good work. One of the issues is that we get repeat offenders, who offend time and again. In the case of my constituent, the rogue builder had been involved in six liquidations. That must be addressed in legislation.

[Sir Mark Hendrick (in the Chair)]

Order. Could I ask for interventions to be a bit briefer?

[Mark Garnier]

My hon. Friend raises the most important point. We have had six phoenix companies wind up; what we do not want is another six—another six victims who have to have their homes pulled down. That is why we are trying to come up with a system of regulation that can prevent that.

Most of us will only infrequently need the work of a builder or tradesman. When we do, most of us get lucky—it is important to say that. We hear stories of people who endorse workers and pass on their names, as their work is of good quality. However, when someone gets caught by a rogue builder, their life descends into a nightmare. I know what that is like. In the interests of full transparency, I declare my interest, having found myself in such a position a few years back. It is because of that experience that I am keen to help other victims find a way out of the problem and draw the issue to a close once and for all.

When a problem starts—from poor and potentially dangerous work, as we have heard, through to the other end of the scale, which is fictitious bills—ultimately the only recourse is expensive legal fees. My experience opened my eyes to just how many people are victims of those types of rogue traders in so many different ways.

Rogue builders do not just prey on their clients. Others who lose out are the subcontractors and suppliers who do not get paid, as well as the plant hirers who do not get paid and find their machinery is often stolen. Other building firms do not see business because rogue builders will undercut their prices only to hike them later. All of us lose out through tax fraud, as rogue builders take cash in hand to dodge VAT and corporation tax. Tax fraud distorts the market, with rogues undercutting legitimate builders, creating a false impression of costs. The wider economy also loses out; the Federation of Master Builders has estimated that billions of pounds of building work is not undertaken because consumers fear being ripped off.

After my presentation Bill had its Second Reading, I was contacted by a number of victims of rogue builders. I also appeared on an ITV programme talking about the issue, leading to more victims making contact with me. The Petitions Committee contacted me to let me know that there is not one but four petitions seeking a resolution to the problem. Between them, they have gathered over 4,000 signatures, and I urge anyone who hears this debate who has been a victim, or is interested in resolving the problem, to sign one of those petitions.

It is the stories of victims that crystalises the problem, as we heard earlier. I was contacted by a police officer married to a nurse—two fine public servants. They bought their dream home and engaged a builder to renovate it. The work turned out to be massively substandard: it failed building standards and was deemed so dangerous that they could not move back into their home without remedial work. They contacted trading standards, but the builder is refusing to engage and is hiding behind his solicitor.

Similarly, someone else who contacted me had wanted to improve her home so that her disabled sister could get access. She was so let down by the system that she was motived to get in touch with the FMB, and has now launched one of the petitions I referred to in order to seek a licensing regime. Again, I urge people to go on to the Parliament petitions page and add their name.

The problem is that there is actually little redress for victims of rogue builders. Trading standards will probably have a good go at trying to sort it out, but if the builder holds fast, it can do little more than give the builder a telling off and flag their name for future people. The reality is that the only recourse for everybody is the courts, but the legal process is hopeless. Those are not my words; they are the words of a number of solicitors and barristers who advised that, irrespective of the merits of the case, the risk of prosecuting was way too high, so people should cut their losses. “Cut your losses”—do we really think that is a way for 21st-century Britain to tackle a known problem that keeps repeating itself?

The reality is that rogue builders hold all the cards: they can do whatever they like, and there is no recourse. Anyone can pick up a brick and call themselves a bricklayer, anyone can pick up a plank of wood and call themselves a carpenter, and anyone can pick up a pipe and call themselves a plumber. Ironically, they cannot pick up a gas hob and call themselves a gas fitter; that job requires compulsory certification, so there is an acceptance that regulation can be necessary. When a problem arises, however, the only redress is in the courts.

A consumer can be completely rolled over by a rogue trader, but in order to get redress, they need to put aside up to £150,000 to prosecute a legal case, securing barristers, surveyors, solicitors, court fees and all the rest of it. They may win—in fact, they probably will win—but they then need to recover their costs and damages from the builder, who closes their business and moves on to the next scam, having taken all the money out of the business so that there is no way to recover anything. The next victim is engaged and the circus goes on, but our successful litigant is left facing appalling, unrecoverable costs. Meanwhile, more suppliers, subcontractors, plant hirers and the wider building trade lose a little bit more.

However, the solution is simple. The problem lies in the imbalance of jeopardy between the victim and the perpetrator. The reason why there is so much rogue building going on is because it is an easy way to rip people off. In some ways, it is a basic level of fraud, although proving fraud is incredibly difficult. With no loss to the perpetrator, they can go on and on while the victim bears all the costs. How do we balance the jeopardy between the victim and the rogue builder? The answer must lie in regulation, with something such as a compulsory licence that the builder will lose if he or she falls foul of the rules—rules, by the way, that can and will save lives.

--- Later in debate ---

[Giles Watling]

rose—

[Sir Mark Hendrick (in the Chair)]

Just before the Minister takes an intervention, I remind Members that this is supposed to be a short debate. I understand that we are possibly going to have as many as five votes, when the votes are called. In the short time we have available, I would be grateful if we could minimise interventions.

[Giles Watling]

I am very grateful to the Minister for giving way. Is it not the case that historically we have relied on the cry of caveat emptor so much that we have not regulated, but that the time has come to regulate now?