Whistleblowing Awareness Week

Mary Robinson Excerpts

Thursday 23rd March 2023 Westminster Hall

[Mary Robinson (Cheadle) (Con)]

I beg to move,

That this House has considered Whistleblowing Awareness Week.

It is a pleasure to serve under your chairmanship, Ms McDonagh. I am pleased to be here today to consider Whistleblowing Awareness Week. As chair of the all-party parliamentary group for whistleblowing, I would like to recognise the work of our secretariat, WhistleblowersUK, and other partners and supporters in bringing together a programme of events to mark the UK’s first Whistle- blowing Awareness Week.

What is Whistleblowing Awareness Week? In short, it is a celebration of the people and organisations who work hard to do the right thing and shine a light on abuse, corruption, fraud, patient safety concerns and other wrongdoing that would otherwise continue to go unchecked. It is a chance to use the past to shape the future, and to acknowledge what works and what needs to change. It is an opportunity to demonstrate how reforming existing legislation with a new whistleblowing law would put the public interest first and ensure that UK standards are global standards.

We need standards that protect whistleblowers by empowering people to speak up and normalising doing so, investigating concerns, stopping wrongdoing and saving money. We need to have penalties—this must have teeth—that incentivise organisations to do the right thing, and education and access to help and support people and organisations.

Why do we need to raise awareness? Whistleblowers are often described as the canary in the coal mine. What an analogy that is; we all know that the canary suffers in order to let people know that there is a problem. Whistleblowers are ordinary people who see something that is wrong and speak up to stop it, with an expectation that those who have the authority to do something will put things right. It is a fair expectation, but, sadly, it is often far from the reality.

Very often, others in an organisation are also aware of the wrongdoing, but only one person has the courage to speak out and to keep speaking out—the person who will not be fobbed off. This is the person with integrity, who believes in policy and procedures, who believes that the organisation they work for wants to know, and who believes that it will act to stop wrongdoing and protect others from abuse or harm.

[Wendy Morton (Aldridge-Brownhills) (Con)]

I hope to speak in the debate later, so I will keep my intervention short. Does my hon. Friend feel that we need some sort of cultural shift and cultural change that creates a safer space, with the attitude that whistleblowing is not bad, but can actually help an organisation, society and individuals?

[Mary Robinson]

My right hon. Friend is absolutely right. We know that when people do not speak out, it is because of the culture. We have seen that this week with the report on the Metropolitan police, which I will go on to consider later. She is entirely right that the culture in organisations needs to be changed. I believe that that culture change needs to be led by a change in our legislation.

Name an industry or a sector, and I can name a scandal brought to light by whistleblowers, who have been stifled, ignored or gaslit rather than listened to, and who have then been bullied and harassed out of their jobs. People who see that happening think twice about blowing the whistle. Unfortunately, as my right hon. Friend has rightly said, all too often people who could and should speak out fear the culture in an organisation and are silenced by it, with devastating results.

[Sir David Evennett (Bexleyheath and Crayford) (Con)]

My hon. Friend is making a very powerful speech, and we are listening with great interest. I congratulate her on securing this debate and on all her campaigning work on whistleblowing over the past few years, for which we are really grateful. Regrettably, I am unable to stay and make a speech, although I would have liked to do so. I apologise; I am on the Lifelong Learning (Higher Education Fee Limits) Bill Committee at 2 o’clock, but I shall read the rest of her speech and the other contributions with great interest.

Does my hon. Friend agree that we all have a duty to encourage individuals to come forward to highlight such issues and to be whistleblowers when they see something wrong? The awareness week will help us get that publicity.

[Mary Robinson]

My right hon. Friend has got right to the heart of this matter. If people do not know that they can come forward, or if they are in an organisation with a culture of fear and cover-up, they will not. Whistleblowing Awareness Week is about ensuring that people know what they can do, and about making organisations aware that they need to change. I am pushing for changes to legislation, as the Minister knows from our conversations —it is great to have him here today. My right hon. Friend is entirely right; it is about the culture in organisations.

The publication this week of Baroness Casey’s report into the Metropolitan police lays bare the tragic consequences of a culture of fear and cover-up, but if it were not this report, there would be another story in the headlines this week exposed by a whistleblower—or worse.

[James Daly (Bury North) (Con)]

My hon. Friend is making a very powerful point. The Casey review highlights a very specific example that shows why this debate is so important. Sir Mark Rowley, the commissioner of the Metropolitan police, says he believes that he cannot sack officers who are either convicted of or under investigation for criminal offences. Why would whistleblowers come forward if there is no positive consequence to their actions?

[Mary Robinson]

That is at the heart of the problem. If people see that nothing is going to happen, why would they come forward? If they see that somebody is going to be bullied out of their job, why would they come forward? If they see that complaints or information about wrongdoing that they take to their senior leadership will not be acted on, why would they come forward? That is exactly at the heart of the problem.

We need to consider not just the impact of whistleblowers coming forward, making a complaint and letting people know what is going on, but also the impact of not doing that. We need to consider the impact when there is somebody in the police force who is known to indulge, or suspected of indulging, in bad or criminal behaviour, but nothing is done, nobody speaks out and the leadership does not act.

For this Whistleblowing Awareness Week, participants at a series of events in Westminster have heard from a wide range of whistleblowing experts from across the globe—legal, financial and human resources professionals, and those who have turned their lived, first-hand experience into action and passion for change. On Tuesday morning, my hon. Friend the Member for Erewash (Maggie Throup) chaired a roundtable on whistleblowing in the healthcare sector. I hope she will speak about that later. We heard from a range of experts, including the national guardian for freedom to speak up in the NHS, Dr Jayne Chidgey-Clark. That role came out of the recommendations of the 2015 “Freedom to Speak Up” report by Sir Robert Francis KC, which found that NHS culture did not always encourage staff to speak up or facilitate their doing so. That failure had a direct and negative impact on patients and staff.

Time and again, we have seen the impact of that failure in health trusts across the country: people have been impacted by scandals and lives have been lost in tragic circumstances. The national guardian is tasked with leading the change in NHS culture—look, it must change. Her most recent report includes many positive voices, which is good, but it also highlights that 58.3% of freedom to speak up guardians believe that barriers to speaking up include the concern that nothing will be done, as my hon. Friend the Member for Bury North (James Daly) said. Alarmingly, 69% believe that a fear of retaliation or suffering as a result of speaking out is a deterrent. Clearly, there is more to be done to break down these barriers.

Patient safety depends on the success of a speaking-out culture, and that should sit alongside a learning culture where mistakes are not covered up for fear of blame. Doctors, nurses and other staff in healthcare settings have lives in their hands and they must feel comfortable, confident and able to report errors and mistakes.

It is often the whistleblowers themselves who give the most powerful testimony. Dr Chris Day is not only a whistleblower—he raised serious patient safety concerns while working as a junior doctor in an intensive care unit—but a change maker who exposed a gap in whistleblowing law that was subsequently reformed. After having blown the whistle on the understaffing that he witnessed, there was another battle on his hands: who can be held to account under existing legislation? As a junior doctor, his training and career were in the hands of Health Education England, who argued that as it did not directly employ Dr Day, the law did not apply to it. He challenged that, and the court found that junior doctors did come under the extended definition of worker. It also found that a worker could have two employers under whistleblowing legislation. Although the issues that he raised as a whistleblower have not been resolved, Dr Day’s actions have resulted in a change to the law.

During our roundtable on Wednesday this week, exploring the new approach to whistleblowing, we heard from Jonathan Taylor, who exposed bribery in the oil and gas industry. Although his disclosures resulted in SBM, a Dutch multinational, paying out more than $800 million in fines and related payments, his whistleblowing also put a stop to an economic crime that had run to hundreds of millions. A statistic that is shared many times in Parliament, including by me, is that 43% of economic crime is detected and exposed through whistleblowers. The Minister has previously said he believes that about 100% of economic crime detection could be attributed to whistleblowing. So, if we want to know where economic crime is being committed, we need to encourage whistle- blowers and others to speak out.

However, speaking up came at a huge personal and professional cost to Mr Taylor. Not only did he spend a year under house arrest in Croatia, but he lost his career. We cannot overestimate the mental and emotional toll that whistleblowing has on people, and he is not alone in his experience. It is no wonder, after having heard the detriment suffered by so many whistleblowers, that people are averse to speaking up.

We also had the pleasure of welcoming Zelda Perkins, who, in breaking her non-disclosure agreement, shone a light on sexual abuse in Hollywood and helped to expose a top film executive who would later be prosecuted for sexual assault and rape. She went on to co-found the Can’t Buy My Silence campaign, which seeks to make NDAs unenforceable except in the case of preventing the sharing of confidential business information and trade secrets, which was their original purpose. The campaign’s efforts contributed to the Department for Education’s introduction of its pledge to end the use of NDAs in universities. That is progress, but we need to go further.

NDAs are often used not just to settle employment disputes, but to silence people. Fraud, corruption, incompetence, environmental damage, abuse, avoidable deaths and cover-ups are silently buried through the use of those agreements. Instead, I would like to bury the use of NDAs for that purpose. We have a situation where some people want to speak up but are bound by such legal agreements, and we have others who could speak but fear reprisals and repercussions. Either way, wrongdoing goes unchallenged. So now what?

Baroness Casey’s Met police review highlights systemic and chronic problems that can arise across any organisation where there is a culture of fear and cover-up. We have a police force riddled with misogyny, racism and homophobia, with inadequate management structures, a lack of leadership and a culture of fear. She describes an organisation where:

“The culture of not speaking up has become so ingrained that even when senior officers actively seek candid views, there is a reluctance to speak up.”

Whistleblowers must have trust and confidence in internal processes, but whistleblowers often come from outside these organisations. I remain concerned that our lack of an inclusive and effective whistleblowing law will continue to hinder progress.

Colleagues may know that last year I brought forward a private Member’s Bill that would reform our whistleblowing legislation. Although it fell because of lack of time, I remain determined to see changes to how we support, encourage and protect the brave people who are prepared to speak out and report wrongdoing. The Bill proposed to create an office of the whistleblower, which would be responsible for setting, monitoring and enforcing standards in the management of whistleblowing cases. The office would provide advice services and a clear avenue for disclosure, and it would direct investigations and handle redress for whistleblowers. Importantly, it would support anyone blowing the whistle.

[Wendy Morton]

My hon. Friend makes it clear that whistleblowing can affect anyone, no matter what organisation they are attached to. Does she agree that that is why we need some changes to the legislative framework to ensure this much-needed change happens? Cultural change alone will not do it; it needs a nudge from Government.

[Mary Robinson]

My right hon. Friend is absolutely right in making that point. In the context of employment law, the existing legislation relates only to people in an employer-employee relationship. As I was going on to say, there is evidence that an office of the whistleblower would incentivise disclosures. People would have a safe space in which to speak, and currently they do not have that across every sector and in every way.

[Maggie Throup (Erewash) (Con)]

My hon. Friend makes the good point that the existing legislation covers only people who are employed by organisations, but it was evident on Tuesday that sometimes employees do not feel able to bring forward their concerns. In the NHS, patients or their families end up having to raise the concerns, and they are not covered by the legislation.

[Mary Robinson]

I am grateful to my hon. Friend for that intervention, which gets to the heart of the matter. Our existing law only looks at whether there is an employer-employee relationship, and when there is a relationship breakdown and the person is forced out of their job or leaves it—whether or not that is because of constructive dismissal—they will end up in an employment tribunal arguing the case for their job and their livelihood. The issue that she raises is not touched on at all. Family members of patients, or those who have come across harm and wrongdoing in a different way, have no cover at all. Across the piece, whistleblowers do not get the protection they need, and I would like that to be changed.

To put into perspective where we are now, in 2020 the International Bar Association measured countries with whistleblowing legislation against a list of 20 best practices. As my right hon. Friend the Member for Aldridge-Brownhills (Wendy Morton) knows, the existing legislation was introduced in 1998 by her predecessor, so the provisions have been in our law for some time and were ground- breaking at the time. The UK meets only five of the 20 best practice measures. Meanwhile, the United States, whose Office of the Whistleblower sits in the Securities and Exchange Commission, met 16 of the measures. That office received 12,300 disclosures in 2022, which was nearly double the 2020 figure. Ministers have promised a review of the existing whistleblowing framework, and that is welcome.

[James Daly]

Will my hon. Friend comment on this matter in respect of how the legislation is not working? Originally, the Public Interest Disclosure Act 1998 did not apply to police officers. However, whistleblowing provisions and protections came in through the Police Reform Act 2002, and they received whistleblowing protection from 1 April 2004. We have legislation in place that states police officers have whistleblowing protection. The situation has actually got worse, and that clearly shows that the legislation needs reforming immediately.

[Mary Robinson]

My hon. Friend is absolutely right about that; we have seen it across various police forces. We are now further examining how the cultures are working, and that need for reform is there. It shows that the best intentions to bring in reforms do not always lead to the protections that we want people to have.

I welcome the review. However, as part of it, I ask the Minister and the Department to look at where this policy area falls and which Department should take responsibility. We have spoken already today about the NHS, policing, and different sectors and organisations. Although I am grateful that my hon. Friend the Member for Thirsk and Malton (Kevin Hollinrake) is now the Minister responsible, given his extensive experience and his support for whistleblowers and legislative change, I hope that he and the Government will look at the issue in a different way. The existing law has constraints because it relates to only employment and business. Perhaps now is the time to look at the issue more holistically, because it crosses so many Departments.

As I have already set out, the issue cuts across industries and sectors. Importantly, anyone—not just an employee—can be a whistleblower. However, our laws have told us to look at it from only an employer-employee perspective. When it was introduced 25 years ago, the Public Interest Disclosure Act was heralded as world leading, with protections for whistleblowers at employment tribunals. However, as I just said to my hon. Friend, just 4% of employment cases are successful at tribunal. That further brings PIDA’s efficacy into question.

We are all familiar with gov.uk; it is where we get all our information. The gov.uk page on whistleblowing says:

“You’re a whistleblower if you’re a worker and you report certain types of wrongdoing. This will usually be something you’ve seen at work - though not always.

The wrongdoing you disclose must be in the public interest. This means it must affect others, for example the general public.”

By my interpretation, that means the Government consider only a limited part of the population to be whistleblowers.

I am grateful that my hon. Friend the Minister attended the launch of Whistleblowing Awareness Week on Monday. I am grateful for his comments and support. He has wide-ranging and in-depth knowledge in this area; I like to think that is partly due to his time as co-chair of the APPG on whistleblowing. I was interested to hear his comments on his business experience and the importance of customer complaints. However, if a customer witnesses wrongdoing in a business or organisation, they are not covered by PIDA. As my hon. Friend the Member for Erewash pointed out, a family member of an employee is not covered. Volunteers and contractors are not covered either.

Despite concerns expressed by some, this is not about stripping back employment rights. It is about extending those rights and protections to the wider population. It is about protecting victims of crime who may have evidence of wrongdoing within the police, protecting lawyers and accountants who have uncovered evidence of fraud, and protecting those associated with economic crime who may wish to inform law enforcement. Whistleblowing is more than an employment issue. It is a business issue, a safety issue and an issue for Government. I question whether its future belongs in employment law at all.

During Whistleblowing Awareness Week, we heard from some of those who have spoken out about their journey to expose the truth. Our discussions highlighted the urgent need for the Government to introduce new legislation that defines whistleblowing and puts in place meaningful measures to protect whistleblowers from retaliation. It is interesting that our existing legislation does not mention the word “whistleblower” at all.

For those in doubt about the urgency for reform, I hope I have made some of the moral arguments. Let us get to finance. Whistleblowers are acknowledged as the single most effective means of addressing fraud and corruption—not accountants, lawyers or anybody else, but whistleblowers. It is estimated that fraud and corruption costs the UK over £190 billion a year. To put that into perspective, that is more than the entire NHS budget. We cannot continue in this way.

The proposals backed by the APPG on whistleblowing and in the Bill that I brought forward last year will improve the rights of workers, give new rights to everyone, save lives and put an end to the costly and wasteful practice of cover up.

Whistleblowing Awareness Week was brought forward and launched to introduce and mobilise public opinion, influence legislators, celebrate those courageous whistle- blowers who have already given so much to society and seek to bring about a better world in which ordinary people will no longer have to have extraordinary courage to speak up. It is my hope that the conversations we have had this week will continue to move the dial towards legislative change, and I am grateful to have the time in this debate to be able to raise awareness of Whistleblowing Awareness Week.

--- Later in debate ---

[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.

[Mary Robinson]

On NDAs being used to prevent a worker from blowing the whistle, the Minister is quite right to make that point, but of course another point to consider is when a person blows the whistle, an employment dispute might arise that could be the subject of a case that goes to law, or lead to that person being dismissed from their job. At that point, the person might accept an NDA, so the harm that was being reported and brought to light in the first place is thereby effectively covered up.

[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.

--- Later in debate ---

[Mary Robinson]

It has been a pleasure to be here today. I thank everybody for taking part and joining me today during Whistleblowing Awareness Week. It was a particular pleasure to me when, at the start of the week, I was joined by my hon. Friend the Minister and by the Opposition spokesperson, the hon. Member for Feltham and Heston (Seema Malhotra), at the launch and we had unanimity. It is a rare thing in this place to have everybody singing from the same hymn sheet, political though it may be. I hope that that will lead us to some success.

I am reassured by the Minister’s words regarding the review. It is probably the first time that I have heard “very, very soon”, rather than “soon” or “shortly”. [Hon. Members: “Days!”] Exactly—we got it down to “days”. I was going to press for the hours as well, but I will not. The important thing is that this is moving forward.

I thank everybody who has taken part in today’s debate. There have been so many powerful interventions and contributions. From the discussions about the Met police force and the GMP issues raised by my hon. Friend the Member for Bury North (James Daly), we know that this is not just about business—about that one sector. My hon. Friend the Member for Erewash (Maggie Throup), who chaired the roundtable this week, talked about the issues in the NHS, and we heard from my right hon. Friend the Member for Aldridge-Brownhills (Wendy Morton), whose predecessor brought forward the legislation that is at the heart of our discussion today and the changes that we want to make.

The SNP spokesman, the hon. Member for West Dunbartonshire (Martin Docherty-Hughes), rightly took on the key aspect, which is that this is not just about employees; it needs to spread to other people. He gave us pause for thought when he referred to the whistleblower who said, “Be prepared to lose everything.” That is what we are trying to fight against. I hope we can take forward the legislation in a robust way, so that during every Whistleblowing Awareness Week we have in the future, as I hope we will, we will be talking positively about the work we have done and the changes that have been made in response to people in organisations who wanted to make those changes.

It cannot be right that a person goes to work every day in fear of saying the right thing. It cannot be right that people’s lives are put at risk by organisations where the culture of fear is so inherent that people within them cannot speak out. It cannot be right that people risk losing their job, their livelihood and sometimes their home, their family and their relationships because they do the right thing. I would like to think that we will all be encouraging the Government to do the right thing for whistleblowers.

Question put and agreed to.

Resolved,

That this House has considered Whistleblowing Awareness Week.