Whistleblowing Awareness Week

Martin Docherty-Hughes Excerpts

Thursday 23rd March 2023 Westminster Hall

[Martin Docherty-Hughes (West Dunbartonshire) (SNP)]

It is good to see you in the Chair, Ms McDonagh. Let me first thank the hon. Member for Cheadle (Mary Robinson) for gaining this debate today and also thank her and the secretariat of the all-party group for whistle- blowing for their hard work.

Before I proceed with my speech, I wish to touch on one thing that the hon. Member mentioned, which is the notion of what an employee is. I hope the Minister and the Government will take that on board. For example, before I came to this House in 2015, I had worked as an employee in the voluntary sector in my own constituency and community of West Dunbartonshire for more than a decade. I am keenly aware of—I do not want to say “work” here—the voluntary activity that delivers public services, and also private business, if someone is seeking to gain experience, in all of our communities. I hope the Minister hears what the hon. Lady and the all-party group are saying about that issue, because volunteers can be some of the most vulnerable people in our society. They include not just those who have retired and want to do something active in later life, or those gaining additional experience, for example in the health service—not just in trusts but on boards in Scotland—but some of the most vulnerable people in society. Having a broader definition, such as “an individual service provider”, might assist the Government.

The SNP is clear that whistleblowing is crucial to a free and open democratic society. It is an integral part of exposing crime, corruption and cover-ups, and a pillar supporting transparency. A democratic and just society, I am sure all Members agree, has a duty to create a culture in which speaking up is valued and in which people who try to silence whistleblowers or suppress evidence of wrongdoing face the full force of the law.

I congratulate those who have brought about Whistle-blowing Awareness Week, which is an opportunity to celebrate people who speak out on workplace issues, call out corruption and expose criminal actions. It is only right that we recognise that whistleblowers are an important check on power structures in Government—and, indeed, in our own political parties, the media, business and other areas. We saw that during the pandemic; the consequences played out in Parliament this week. The issues relating to the Met are not just for it to think about, but for wider society.

As a tech geek, I am mindful of the investigative journalists who revealed the Cambridge Analytica story—remember them? Whistleblowers such as Chris Wylie and Brittany Kaiser divulged the global extent of data manipulation on digital platforms, and shifted conversations about data rights and political malpractice to the top of the public and political agenda. Like many whistleblowers, such individuals are vulnerable to retaliation for their actions. Although there are laws in place to protect them, sometimes those laws are not adequate or effective in their application.

Such individuals always seem to rise to the challenge and face the threats made against them. A Facebook whistleblower, Frances Haugen, revealed that hateful political ads are five times cheaper for customers—it has been referred to as subsidising hate. She did that with 22,000 pages secretly copied from company documents that proved her claims. She provided evidence here in Westminster and in the United States Congress. She said:

“I think the part that informed my journey was: You have to accept when you whistle-blow like this that you could lose everything. You could lose your money, you could lose your freedom, you could alienate everyone who cares about you. There’s all these things that could happen to you. Once you overcome your fear of death, anything is possible. I think it gave me the freedom to say: Do I want to follow my conscience?”

I have to say, I am glad Frances did.

The National Crime Agency’s annual fraud indicator estimates fraud losses to the UK at about £190 billion every year. The private sector is hit the hardest, losing about £140 billion. The public sector loses more than £40 billion, and individual civilians lose about £7 billion.

The SNP believes that whistleblowing laws ought to be reformed, as the hon. Member for Cheadle said, to better protect whistleblowers calling out bad actors. With Public Interest Disclosure Act 1998, the UK became the first EU country, as it was then, to introduce new whistleblowing legislation. It was heralded as a watershed moment, and expectations were high, given that whistle- blowing was now seen as legitimate, but we know that employers may be better protected now by placing a gagging clause on workers—a clause in an employment contract or a compromise agreement that purports to prohibit a worker from disclosing information about their current or former workplace. A compromise agreement is a contract concluded at the end of an employment relationship that seeks to prevent further disputes. Typically, it is accompanied by a payment to a worker.

According to the very good work of the all-party group for whistleblowing:

“Whistleblowers in general remain the subject of suspicion and scepticism and while organisations and official bodies sing the merits of whistleblowing and parade their policies and procedures, the lived experience of whistleblowers remains poor. For those who embark upon a legal remedy the chance of success is less than 10%, the personal cost in financial terms is beyond the means of most people and the physical and mental cost untold.”

There is therefore, as the all-party group says, an

“urgent need to completely rethink UK whistleblowing law and make it fit for the 21st century.”

The all-party group argues for a whistleblowing Bill, which the SNP would support. As the hon. Member for Cheadle has already said, the Bill would define whistleblowers and whistleblowing in law. It would properly and clearly set out the duties of relevant persons and establish an office of the whistleblower with the responsibility to uphold the rights of whistleblowers, but also to set, monitor and enforce the new standards. The Bill proposes a multi-level, multi-stakeholder approach to emphasise the value of whistleblowers and the crucial role they play in a healthy society. I call on the Government to heed the calls of not only the all-party parliamentary group, but the hon. Member for Cheadle.

I will end on the issue of volunteers. If Government Ministers require briefings, for example from the national body of volunteering in Scotland, Volunteer Scotland, I am sure it would help. There will be many people across all these islands who would look to extend whistleblowing legislation to cover those who deliver public service as well as sometimes giving up their free time to deliver private wealth.

--- Later in debate ---

[Martin Docherty-Hughes]

indicated dissent.

[Kevin Hollinrake]

No? I thought the hon. Gentleman was.

In law, NDAs cannot be used to prevent a worker from blowing the whistle, so there are some protections in law in that respect. I believe the shadow Minister, the hon. Member for Feltham and Heston, also brought out that point.

[Kevin Hollinrake]

That brings me to my next point. My hon. Friend makes a very good point, but the employment tribunal is there to settle compensation. It is the regulators in the various sectors that are there to look at the problem, the detriment, and to consider the whistleblowing concerns and act on them. That cannot be restricted by an NDA in that kind of compensation settlement, I think.

What I regard as the key point in my hon. Friend’s contribution today is the proposal for an office of the whistleblower. I quite understand that the intent is to provide one central place for whistleblowing and to make sure that we have best practice across the piece. Such an office would provide consistency in standards for regulatory investigations triggered by whistleblowing information. I am also interested in the issues that dealing with whistleblowing disclosures might raise for the prescribed persons, and vice versa.

I know there are concerns, not just in Government but in wider circles, about how such an office would interact with the role of regulators, who are experts, of course. It is important that we look at the arguments for and against the proposed office, and I am keen to look at international examples. My hon. Friend referred to the USA. The numbers of disclosures there are interesting. According to my figures, there were 50,000 protected disclosures in the UK in 2020-21. I think my hon. Friend said that 20,000 were dealt with by the Office of the Whistleblower in the US, which is obviously a much bigger country in terms of population and potential whistleblowing. I am interested in the gap.

One point to make is that a UK office of the whistleblower would of course need extensive resources to be able to handle or to oversee 50,000 protected disclosures, and significant expertise to ensure that it fully understood the nature of the problem and was able to work alongside the regulators, which I think is what my hon. Friend envisages, rather than replace the regulators in terms of their functions. Clearly, regulators themselves, be it the FCA or the regulators in the NHS, would have a responsibility to ensure that the issues were addressed properly and whistleblowing guidelines and processes were followed. It is a question of understanding the interaction between the two and what resources would be needed to fully and properly fund an office of the whistleblower.

All these matters need to be taken into account in deciding how to proceed. The review, as I have said, is something that we want to bring forward very quickly, and we want hon. Members on both sides of the House to be able to input into it.

[Martin Docherty-Hughes]

Will the Minister assure hon. Members that in the review he will take cognisance of the question about what an employee delivering a service is? The millions of volunteers across these islands need reassurance. They need to be protected and given the ability to be a whistleblower within the system.

[Kevin Hollinrake]

The hon. Gentleman makes a very fair point, which I think was referred to earlier. Some of the whistleblowers I have dealt with were outside the current legislation because of their employment status, so I think that it is a very fair point and it is one that we are very keen to explore through the review.

I thank my hon. Friend the Member for Cheadle again for initiating this very important debate. We are in complete agreement: there should be no doubt that to blow the whistle is an act of real value to both business and society at large. Government, including my Department, will continue to examine and make reforms to the whistleblowing regime, and we will be setting out details of the review of the whistleblowing framework very soon.