Whistleblowing Awareness Week

Wendy Morton 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.

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[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.

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

It is a pleasure to serve under your chairmanship, Ms McDonagh. Like others, I want to start by commending my hon. Friend the Member for Cheadle (Mary Robinson) for introducing the debate. She is nothing if not tenacious and persistent, and she should be sincerely applauded for that.

I want to start with a very short history lesson. As my hon. Friend the Member for Cheadle alluded to, my predecessor was the late Richard Shepherd, the former Member of Parliament for Aldridge-Brownhills. Sir Richard had a record of defending whistleblowers and fighting for transparency, as well as of campaigning on many other things. Back in 1997, believe it or not, he was drawn in the private Member’s Bill ballot, and he introduced the Public Interest Disclosure Bill. With cross-party support, it was enacted in 1998, and is now referred to as PIDA. That was almost 25 years ago. We could stand here and argue that Sir Richard’s Act of Parliament is one of the very few pieces of legislation to have stood the test of time with very little change. However, I think most present, if not all, would argue differently. I am hoping that the Minister is on board, given his knowledge and expertise in this field of policy from before he became a Minister.

As we have heard, 2023 will mark the first Whistleblowing Awareness Week in the UK. This week, thanks to my hon. Friend the Member for Cheadle having secured the debate, we have an opportunity to raise awareness and debate this really important issue, and to highlight some of the many whistleblowing cases. Many cases make it into the public domain——we have heard this week from the Casey review—but many others do not. Important acts of whistleblowing help to keep us all safe.

Legislative change is needed now more than ever before. As I have said, we often think of the high profile cases that make the newspapers and are turned into fascinating films and documentaries, yet the truth is that, 25 years since the Act was passed, too many people are still not protected—from job applicants to volunteers, to name just a couple of groups. Too many who speak out suffer victimisation. Those who do not probably fear it.

As we have heard, there is clearly an appetite in Parliament to do something and to take action. In April last year, my hon. Friend the Member for Cheadle introduced her ten-minute rule Bill on whistleblowing; alas, it ran out of time, as sadly often happens with ten-minute rule Bills and private Member’s Bills, as I know only too well. In June 2022, a private Member’s Bill was introduced in the other place called the Protection for Whistleblowing Bill. It had its Second Reading in December last year, and I think we all hope that it will continue to make good progress.

My hon. Friend has long campaigned for change and for protection for whistleblowers. She has articulated today, through her words and through the examples that she has shared with us, how much knowledge she has on this particular topic, and how much evidence and appetite there is for that change. It is time to make it easier for concerned employees, contractors and stakeholders to raise a concern. It is time to encourage employees to speak up by offering them confidentiality and options for reporting. It is also time to set minimum standards for whistleblowing policies.

It takes a very brave person—a hugely courageous person—to be a whistleblower. Often it takes just one, and others will follow. That first person has to be incredibly brave to report certain types of wrongdoing or to reveal information about activity within an organisation that is deemed illegal. When that is done properly, when the right protections are in place, whistleblowing can be positive and can lead to the much-needed change, betterment and improvement from which so many will benefit.

It is time to make whistleblowing a tool for business improvement and safeguarding, and to step back from the “who” and focus much more on the “what”. I support my hon. Friend seeks legislative change—changes to the framework, and changes that start to drive the buy-in of organisations. Those organisations need to be nudged to take up the responsibility, and to be responsible for driving forward buy-in from their employees by encouraging and developing what I would call a healthy culture, which means that when a person needs to speak up it is possible to do so, that they are listened to and that what they say is acted on.

Equally, there must be protections for those organisations against vexatious whistleblowing. I acknowledge that there is a slight balance and nuance that must be addressed, too. None the less, whistleblowing can have a real value when it is viewed as good for business and good for organisations. The 2019 report of the all-party group for whistleblowing concluded that whistleblowing

“can help prevent harm to the fundamental values of society, including individual rights and liberties, justice, health, economic prosperity and stability”.

The Government have committed to review the whistle- blowing framework. May I gently urge the Minister to get on with it, please? In doing so, perhaps he could also consider the point that my hon. Friends have raised about the Government Department in which this should sit. Is the Department for Business, Energy and Industrial Strategy the best place for it? Perhaps, given that it is such an overarching issue, it would be better placed in the Cabinet Office.

Whistleblowing must be seen through the prism of keeping us all safe. It is good for business, good for organisations and good for society, but it also needs to work for the individual, so we must protect whistleblowers from being victimised. We should seek to work together with the Minister to deliver that cultural change. That will then start to make the difference that I know my hon. Friend the Member for Cheadle and so many others are seeking to achieve.

[Siobhain McDonagh (in the Chair)]

I call the SNP spokesperson, Martin Docherty-Hughes.

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[Kevin Hollinrake]

I will come on to what we are trying to do to make the legislation more effective. Do I think the legislation is where it needs to be today? No, I do not. That is the case for the changes we need to make. We need to look at all the different evidential points to ensure we move to the right place. Ian Foxley was a contractor, which is why he did not have the opportunity to get compensation in his case.

The SNP spokesman, the hon. Member for West Dunbartonshire (Martin Docherty-Hughes) made a good point about volunteers. They may also be the eyes and ears we need. He made the alarming point that people who blow the whistle could lose everything, which all of us should take into account. People who clearly do not feel they will be properly protected or properly compensated should feel more assured that they will.

My right hon. Friend the Member for Aldridge-Brownhills (Wendy Morton) pointed to the fact that the legislation was implemented 25 years ago by one of her predecessors. To give some reassurance, since the introduction of that legislation, the Government have continued to strengthen some of its provisions using non-legislative and legislative measures. We have produced guidance for whistleblowers and prescribed persons, as well as guidance and a code of practice for employers. We have produced guidance on how whistleblowers can make disclosures.

In 2017, we introduced a new requirement for most prescribed persons to produce an annual report on whistleblowing disclosures made to them. That duty is a direct response to concerns about the lack of transparency surrounding how disclosures were being handled. Most prescribed persons are now required to report on the number of disclosures, state whether they decided to take further action and give a summary of any action taken. We have also expanded the list of prescribed persons—the individuals and bodies to whom a worker can blow the whistle. In December 2022, I took forward some legislation to add six new bodies and all Members of the Scottish Parliament to the prescribed persons order. We continue to welcome proposals for appropriate additions to that order.

[Wendy Morton]

I appreciate that there have been updates to the original 1998 Act, and I recognise that work needs to continue. I want to push the Minister on the review. Will he give us any timescale or any indication of when we will see the Government undertake further work in the light of some of the thoughts, ideas and recommendations from the APPG?

[Kevin Hollinrake]

I was just coming on to that. As a former Chief Whip, my right hon. Friend will be familiar with a word we often hear in this place: soon. I will say very, very soon. It is fair to say that we talking about days, not months. We are closer to days than months; that is where I would say we are.

Many have spoken passionately today, and on previous occasions, about the experiences of whistleblowers, and raised concerns about the whistleblowing framework. As I said, the Government have committed to reviewing the framework. It is clearly a major priority of mine, and it has been since I joined the Department. My right hon. Friend the Member for Aldridge-Brownhills made the important point that while we must ensure we protect the right people, we do not want to allow for vexatious whistleblowers because that could have a detrimental impact on businesses and other organisations. It is important that we protect those who should be protected.

Indeed, as my hon. Friend the Member for Bury North said, we must protect the people who would have blown the whistle had they had confidence in the framework. That is one of the big problems here. People are not coming forward because of their concerns and because of what has happened to other whistleblowers. That includes, as my hon. Friend the Member for Cheadle mentioned, Jonathan Taylor, who blew the whistle in the oil scandal and was pretty much under house arrest for a year in Croatia. That was disgraceful treatment.

As I said, making progress on the review has been a priority of mine from day one. There will be an announcement on that very, very soon. That is what we are expecting. We are keen to engage with parliamentarians from across the House, both here and in the other place. Once that review is announced, I am keen to engage particularly with my hon. Friend the Member for Cheadle so she can make her points about the right way forward in terms of the provisions we need to make and future changes to legislation.

My hon. Friend talked about the policyholder for this particular brief and whether it should be the Department for Business and Trade or the Cabinet Office, as my right hon. Friend the Member for Aldridge-Brownhills suggested. I am very keen to keep it under my auspices, because, as Members have said in the debate today, I have a long-standing interest in this particular area. I am very keen and ambitious for it, so I am keen to keep hold of it. However, it is right to point out that it is the legislation around whistleblowing and employment that is held with me. Of course, the particular issues around Departments—the whistleblowing requirements—are held by each individual Department. For example, as my hon. Friend the Member for Erewash will confirm, whistleblowing in the NHS is very much a matter for the Department for Health and Social Care. That is the right situation regarding this particular policy.

[Wendy Morton]

From my experience as a Minister, I know how whistleblowing policy does cut into other Departments. I understand the Minister’s passion and willingness to drive this policy forward, but looking to the future, in whatever work he is doing can he really ensure that it embraces all of Government? That is why I was pointing towards the Cabinet Office.

[Kevin Hollinrake]

I quite understand my right hon. Friend’s point and why she made it. My view, both as a Back Bencher and as a Minister, is that we need to work more on a cross-Government basis than perhaps we do now to make sure that these kinds of measure are properly implemented across Government.

A number of Members, including the spokesman for the Scottish National party, the hon. Member for West Dunbartonshire, talked about NDAs. As he will know, being a member of the legal fraternity—