Whistleblowing

Philippa Whitford Excerpts

Wednesday 3rd July 2019 Commons Chamber

[Norman Lamb]

Shockingly, the BMA abandoned him, and that is a story in itself, which needs exploring further. Not just in the NHS but across the economy, people are often literally on their own, faced by expensive lawyers. I speak as a former employment lawyer and I know what happens in employment tribunals. They were intended as a layman’s court, but they are anything but that these days.

The third story I want to mention is that of my constituent Mark Wright, a successful financial planner at RBS. Things started to go wrong after he raised concerns about unacceptable practices in the bank—this was before the crash. On 17 September 2008, immediately after the collapse of Lehman Brothers, an intranet statement was put up in RBS saying that the group was “well capitalised”. That was clearly an attempt to reassure staff, including staff shareholders, customers and investors that the bank was secure. Of course when the bank crashed, those staff shareholders lost a fortune, and many, including my constituent, believe that they were badly misled by that intranet statement.

Mr Wright’s mental health was destroyed as a result of trying to challenge the bank, as was his career. He made a complaint to the Financial Conduct Authority, which reported his name back to the bank, for goodness’ sake. The FCA was later criticised by the Complaints Commissioner. I pursued his complaint with the FCA and it denied knowledge of the intranet statement repeatedly to me, yet an internal FCA email has emerged, after a subject access request to the Complaints Commissioner. It was dated 14 March 2014 and it said

“the intranet notice that Mr Wright refers to was online between 17 September 2008 and January 2009… as staff used it to take reassurance that all was well which would tend to support Mr Wright’s allegations”.

That was an email within the FCA, yet we were never informed of that email or of that finding in that explosive document.

Clearly, the FCA has a copy of that intranet statement, yet it will not or cannot disclose it to us. The FCA says that the law does not allow it to do so. RBS, which is part state-owned, will not disclose it, yet clearly it is in the public interest that it should be disclosed. I believe I was misled by Andrew Bailey, the chief executive of the FCA, who told me, in effect, that Mark Wright’s allegations offered nothing that was not already in the public domain and he referred to an intranet statement by Fred Goodwin, which he said had been

“in the public domain for nearly 10 years”.

Yet the intranet statement has not ever been in the public domain. The Treasury Committee, which had looked into this, had never received a copy of it. So I was misled, and we have a regulator that is too close to the banks; that failed to protect Mr Wright’s disclosure or his identity; that, crucially appeared to fail to take the allegations about the misconduct of that bank seriously; and that cannot or will not put a crucial statement into the public domain. Let us just think about the damage caused by bankers in the run-up to the crash. Had we empowered people like Mark Wright to do the right thing, rather than destroyed them and ignored them, we might just have prevented the disgusting behaviour and greed of bankers, and we might now have seen some of those responsible for destroying our economy behind bars. As it happens, they have got away with it.

The fourth and final story is of foster carers throughout the country who are frightened to raise concerns about any behaviour from the council that they deal with. Of course, the council refers children into their care, so if a foster carer is concerned about the behaviour of a social worker and expresses concerns, that council can just stop the flow of children to them, and so their income stream—their ability to earn a living—disappears. This has a chilling effect on the willingness of any foster carer to speak out about child protection concerns, because they fear losing their livelihood.

[Dr Philippa Whitford (Central Ayrshire) (SNP)]

Does that not highlight how, whether in finance, the NHS or anywhere else, this happens in situations with a power differential and a hierarchy? Someone has power over someone else and can make them lose their job or lose what they love doing, so there is a constant threat.

[Norman Lamb]

The hon. Lady is absolutely right. We need effective legislation to redress that imbalance of power.

All the cases I have outlined highlight the value and importance of enabling people to expose wrongdoing. Effective protection for brave people who decide to speak out is first of all vital for that individual—they should be celebrated, not denigrated—but it also benefits us all if we give them protection. As the right hon. Member for Sutton Coldfield (Mr Mitchell) said earlier, this is actually an issue of good governance. It is about keeping organisations honest; protecting businesses from fraud, crime and other wrongdoing; and maintaining the highest possible standards. Good protection for those who speak out acts as a deterrent against bad behaviour; closed, secret cultures, which cover up wrongdoing and destroy those who try to speak up, deliver poor public services or cheat customers in the private sector, particularly in financial services, or lead to the toleration of bullying, sexual harassment and so on. So often, non-disclosure agreements are the final step that keeps the wrongdoing secret, slamming shut the door on proper scrutiny. Things need to change.

The question is: does the current law work? Palpably, from the examples I have given, it is clear that it does not. First, it leaves out key groups—not only foster carers—that simply are not covered by the legislation. It leaves out job applicants, volunteers and priests. Just think about the abuse of children by so many priests over the past few decades. Had priests been given the protection to speak out, perhaps we would have prevented some of that dreadful abuse. The legislation leaves out non-executive directors and trustees. It leaves out relatives and friends of the whistleblower when they are victimised because of what the whistleblower has done. It leaves out someone who is victimised by being presumed to be a whistleblower—if a company thinks that someone has spoken out, even if they have not, and does something like dismissing them, that person has no rights under the legislation because they are not actually the whistleblower. That is a ludicrous situation.

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[Stephen Kerr]

Whistleblowers are heroes, not villains—although sometimes there are villains in their stories—and they should be treated with respect and listened to. Sometimes they are looking for no more than validation of what they have brought to the attention of the authorities. Whether they should have a financial award, or whatever, is a side issue; the real issue is how they are perceived and responded to.

[Dr Whitford]

The hon. Gentleman raises financial rewards. Does he think they might make the personal situation for a whistleblower within a workplace worse, because it would be easy to ascribe their actions to their seeking a financial benefit as opposed to genuine altruism?

[Stephen Kerr]

I completely understand, and am sympathetic to, that point. We need to work together to establish this independent office of the whistleblower. Sometimes whistleblowers pay such a heavy price in terms of the financial consequences that flow from their actions that perhaps there is a case for compensation, but I have not made up my mind. We have to hear more evidence and have a wider discussion in Parliament about these issues. It is absolutely clear, however, that whistleblowers need somewhere safe to go, and to be supported and have their cases properly advocated in the face of power, authority and bureaucracy.

I mentioned the problem of blacklisting. One person told us how he had been blacklisted for speaking up. He had reported criminal activity to the employer. Instead of dealing with the issue, the employer dealt with the person who had spoken up in the first place and coerced them to stay silent. It is bad enough to have something criminal going on within one’s business, but then to cover it up, and contrive to force those who are willing to speak up for the reputation of the organisation or business to leave, is clearly unacceptable, and then to seek to blacklist them so that they cannot work in a profession in which they have trained and acquired qualifications is truly shameful.

The complex legal framework surrounding whistle- blowing covers too few people. It is complex and legalistic. Many of the whistleblowers whom we met were not recognised as whistleblowers by the law. The tests that are necessary to stop people abusing whistleblowing are too stringent and do not recognise complexity. One employee brought up issues of racism at work and the flouting of HR rules. The employer, instead of recognising the whistleblowing, tried to diagnose a mental health issue, sending the employee on medical leave. The company-appointed psychologist then broke confidentiality to speak to the managers of the business. Although regulators confirmed that the employee had a point, they were dismissed and have received no justice.

Whistleblowers can be dragged through the courts, with mounting costs and unending hassles. For many, their cases have consumed their lives. It may be thought that the best advice such a person could be given would be “Move on and forget it”, but that is not justice; it is unjust. While it might be said to have been good and well-intentioned advice, is that really the way in which we in this place want the affairs of our country—economic, and relating to public service—to be dealt with? I really do not think so.

However, it is equally important not to limit the definition of whistleblowers to employees. As I said earlier, and as was mentioned by the right hon. Member for North Norfolk, many categories of people should have the protection to which whistleblowers are legally entitled. We must ensure that, when they blow the whistle, they are given proper protection under the law—and the law is too vague in this regard.

When an individual faces the full force of a corporate or public sector legal department, it is a complete mismatch. Public corporations should be mandated to disclose legal costs to shareholders in such cases, and the same should be true of public authorities. They should have to make clear and transparent the costs of fighting whistleblowers that will be borne by the taxpayer. Some of the estimates of the costs that have been incurred by public services are absolutely mind-blowing and wholly disproportionate.

One brave whistleblower in Scotland had evidence of HR malpractice. It should have been a simple grievance dealt by the organisation, which should have been pleased to receive the feedback from that person. Instead, the person and their family, who also worked there, were victimised. They cannot afford legal representation, and will have to argue their own case at a tribunal against a public sector legal department with an expansive budget.

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[Dr Philippa Whitford (Central Ayrshire) (SNP)]

I pay tribute to the right hon. Member for North Norfolk (Norman Lamb) for securing and opening this debate, and to the other members of the APPG for their work on this topic.

Bristol Royal, Mid Staffordshire, Morecambe Bay, Liverpool, Gosport, Whorlton Hall—all shocking scandals of health and social care. In every one of those scandals, there was a whistleblower years before it came out who tried to raise concerns and protect people. They were ignored, and that is often the least that happens, as they are often undermined, victimised or dismissed.

[Bob Stewart]

I suspect that the hon. Lady might be going on to say that those people were then blacklisted; they could not get another job in the health service afterwards, for some reason that they could never actually ascertain.

[Dr Whitford]

I thank the hon. and gallant Gentleman for his intervention. As a medic myself, it is clear that we are advised by the General Medical Council, the Royal College of Nursing and various official bodies that we must speak up—that we have a duty to speak up. However, the landscape we look at is littered with broken careers and often broken people.

The problem is that whistleblowers think they are protected because they have heard about whistleblower protection, but it simply does not exist. The right hon. Member for North Norfolk talked about “brave people” speaking up. People should not have to be brave to raise concerns. If all people see is others ahead of them who have been driven and hounded out of their career, and who have maybe ended up with mental health issues or worse, then that is a big, black, threatening cloud—keep your mouth shut, keep your nose clean, walk by on the other side. The problem is that that results in more suffering and more death.

There are two aspects to this issue: business and industry, which is represented most commonly by the finance sector; and public services, which are most commonly represented by the NHS. Those two sectors—finance and the NHS—probably generate the biggest number of scandals and whistleblowing cases, and therefore specific treatment is required in those industries to invite whistleblowers to come forward and protect them.

While there is UK-wide regulation of finance, health services are devolved. The four health services are struggling with this and working to improve whistleblowing. After the Mid Staffs scandal, Sir Robert Francis highlighted that in Mid Staffs—indeed, this was an issue in some of the later scandals—there was an obsession with becoming a foundation trust. The hon. Member for Stirling (Stephen Kerr) and others have talked about why people cover things up. Whether it is a high-profile business or a public service that has been corporatised, there is a drive to remain shiny and perfect on the outside, instead of admitting a problem and trying to fix it.

Having produced his report, Sir Robert Francis set up the “freedom to speak up” guardians in hospitals and the national guardian. In Scotland, the local person in health boards—we do not have trusts—is a specific non-executive director who is a whistleblowing champion. The advantages of a non-executive director is that they are on the board, with a clear and loud voice, and they are not an employee, but they are part of the system. The “freedom to speak up” guardians are employed by the trust, so they are operational—they are a person to go to—but they are also an employee. There are issues at the trust and health board level with how the guardians or champions themselves are protected. Perhaps we need not only an independent national office but an independent system. In the NHS, that might be people who are taking responsibility for safety or healthcare services information. Unfortunately the legislation on that is in the Brexit long grass, but I hope it will eventually come forward.

There is a national guardian in England, but it does not have statutory powers. Scotland has set up an Independent National Whistleblowing Officer, who is basically the public services ombudsman. They are completely separate—they are outside the system—and they have statutory powers, which is important. A reporting and advice line was set up back in 2013, so that if people were afraid to report locally or were not getting anywhere, they could report to that phoneline.

[Stephen Kerr]

The hon. Lady makes a good point about what is happening in Scotland now, but it is worth mentioning the evidence that my APPG received from Police Scotland and NHS Scotland. For example, the lessons that NHS Scotland has learned in Inverness are being taken on board by public authorities in Scotland. The size of our country allows us to do things a bit more quickly and deftly, but undoubtedly the lessons of the past are being learned and implemented, and I applaud NHS Scotland and Police Scotland for that.

[Dr Whitford]

So small is beautiful after all—that is excellent. The evidence is there; it has been there for years. The problem is that action has not been taken.

The Independent National Whistleblowing Officer has already developed, published and is consulting on standards. The standards will look at bullying and harassment—an issue that has come out in NHS Highland—and patient safety issues, and they can empower reporting and review. They include primary care and social care. They include not only trainees like Dr Chris Day, who was appallingly treated, but students and volunteers. No one should be limiting and excluding the person who saw bad and dangerous behaviour from coming forward and doing something about it.

Every health board will have to report on the actions they have taken to remedy the findings of an investigation. Health boards must investigate and record how they investigated. They must record the action they took, and they must show any improvements that they developed from that investigation. Statistical analysis will be part of an annual report by the board every year, which will look for themes, trends and patterns. This is—and I welcome the fact that the hon. Gentleman recognises it—an attempt to make this work by having an independent office.

The results of a survey of health and social care staff in Scotland—and they are health and social care staff now—showed that two thirds felt they would have the confidence to speak up and raise a concern. That is contrary to the fact, as Members have said, that approximately a quarter of staff in England would have the confidence to speak up. As a doctor, I would like to see the figure an awful lot closer to 100%.

The Independent National Whistleblowing Officer will have among their statutory powers the ability to take disciplinary procedures against anyone who victimises a whistleblower. That is also critical because, at the moment, as we have heard, the whistleblower suffers, and the person who caused the suffering does not.

Regardless of how the different nations of the UK are trying to tackle whistleblowing issues within their own public services, particularly their NHS, we need to deal here with the financial and other UK regulation systems. In particular, the Public Interest Disclosure Act is the overarching legislation for whistleblowing, covering all sectors. It was actually 21 years old yesterday. It was a private Member’s Bill, so perhaps it did not really have the scrutiny it should have had. It was groundbreaking at the time, but the UK is now well behind the pack, including countries such as Ireland, and, frankly, it needs to catch up. As has been highlighted by the hon. Member for Ellesmere Port and Neston (Justin Madders), it does not protect the whistleblower; it only allows them to go to an employment tribunal after they have suffered huge detriment, with only a 3% success rate, and the tribunal is often used to create more damage and victimisation.

The whistleblowers I have been working with have asked for an independent, free-standing public interest protection Act—not part of employment law, but free-standing—that should do a few things. It must ensure investigation of the concern, because the concern often disappears in all the fighting. The whistleblower should be protected from the point at which they raise their concern. It should cover all those who would be in a situation to report, including trainees or non-workers. It should prohibit detriment, and there should be the ability for civil wrong or criminal offence actions to be taken.

This requires an independent agency or body, and it should also cover regulators. This is not just about the FCA or the FRC, because the Care Quality Commission is in the frame for Whorlton Hall, in that it did a report that described it as not having a problem when people had actually raised issues. If we take the heat out of whistleblowing and make reporting normal, as we have done with Datix systems in the NHS—making this not whistleblowing, but just part of normal duties—then we can change this. Whistleblowers must be valued. In the NHS, it is a matter of patient safety, and that is critical.

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[Kelly Tolhurst]

The whistleblowing legislation at the moment is regarded as proportionate, but as new evidence comes to light and as things change, it is right that we keep these policies under review, and it is right that we have these debates in the House of Commons so that the Government can be challenged over what is happening now and how we can improve.

[Dr Whitford]

It has come out clearly from this debate that PIDA only allows 3% of people to get some redress—it is only some redress—so surely we require legislation that protects the whistleblower right at the start of the process, rather than trying to mop up afterwards.