I beg to move, That the Bill be now read a Second time.
Before I start my speech, I too wish to send my and my party’s condolences to the family of the police officer who lost his life in the line of duty last night.
Bristol Royal Infirmary, Mid Staffs, Morecambe Bay, Liverpool and Gosport: as in previous debates, I recite this shocking litany of tragedies, which have become household names, to remind us all of what is at stake. In each of those scandals, there were those who tried to raise concerns and protect patients, but they were ignored and often intimidated, victimised or even dismissed. Had they been listened to, lives could have been saved.
Whistleblowing is an issue in many sectors, including financial services, as I am sure we will hear about later, but it is often the NHS and social care cases that stay in our memories, due to the terrible impact on patients and their families. The very term “whistleblower” denotes a boiling kettle—a sense of pressure and build-up, until a valve releases. In many cases, the poor working practices or patient safety issues have been going on for a long time before someone is finally driven to speak up. That is because the whistleblowing landscape before them is littered with broken careers and, indeed, broken people who tried to do the right thing.
Most businesses and organisations want to create a good external impression—to project an air of success and to attract more business. As Sir Robert Francis highlighted in the Mid Staffs inquiry, that can be a significant pressure if public services are competing for contracts in a market-based system. The temptation is to cover things up—to look good from the outside, rather than admitting a problem and trying to fix it. That immediately places the employee in conflict with their employer, who just wants the problem to go away. To redress that power imbalance, it is necessary to protect and support whistleblowers, to encourage them to step forward and raise their concerns, whether on patient safety, financial wrongdoing or environmental damage.
I thank my hon. Friend for bringing this Bill to the House. Does she agree that one of the important factors behind this Bill is to protect employees who engage in whistleblowing, many of whom find themselves dismissed, albeit for other reasons?
I thank my hon. Friend for that intervention. That is exactly the problem with the Public Interest Disclosure Act 1998, which falls within employment law, putting the burden on the employee to prove that they have been sacked purely for raising a concern, rather than on the employer. As I will come to later, such cases very quickly turn into, as we would say in Scotland, a complete rammy.
In the five years that I have been in this House, I have heard politicians from all parties, including the previous Health Secretary, praising whistleblowers. However, despite several debates on the topic and about the need for action, nothing has been done to provide the protection they need from the point at which they make a disclosure. That is the critical thing: to protect them from damage, not to allow a system to pick it up afterwards. During the covid crisis, when we were out clapping the NHS and social care workers, we heard just as many stories of intimidation of those raising concerns about PPE or staffing.
When the Public Interest Disclosure Act—or PIDA—was passed 22 years ago, it too was a private Member’s Bill. I wish to express my thanks to the Clerk of private Members’ Bills in the Public Bill Office for all his work, but I recognise that I have pulled this Bill together, so I have no problem with its being improved, changed or developed in order to make it function. This is not a party political issue; whistleblowing exists in every sector, in every nation. We should recognise the need to deal with it and try to fix it.
At the time, PIDA was hailed as world leading, but that was 22 years ago. There are now better international examples, and it is in need of a complete makeover. What are the problems with PIDA? First, whistleblowers think that it offers protection from the point at which they come forward, but it does not. It merely allows them to challenge their employer in an employment tribunal after they have suffered detriment, such as missing out on promotion, being bullied or threatened or, as in a third of cases, even losing their job. As I said, the burden of proof is on the whistleblower to prove that raising a concern is the only reason that they have been sacked, rather than on the employer to prove the opposite. It is rather unsurprising, then, that only 3% of tribunal cases are successful—there is a 97% failure rate, and that is just the ones that actually go all the way to a tribunal.
The litigation process also creates opportunities for further victimisation and intimidation, with breaches of confidentiality and threats of spiralling legal costs. Ordinary workers in most sectors simply cannot maintain the fight. The problem is that as PIDA sits within employment law, it just turns into a battle between employee and employer. The original cause for concern that made them speak up gets completely lost, rather than investigated and action taken to fix the problem. This is actually the whistleblowers’ biggest complaint. The people I met said it was not even about their detriment or protection for them, but about the fact that after everything they went through the issue was never investigated and certainly never dealt with.
I congratulate the hon. Lady on securing her Bill in the ballot. Does she agree—from what she is saying, she may well come on to this point—that at the heart of any effective whistleblowing system is a reliance on those investigating complaints internally being able to act independently and with neutrality to resolve the issue at an early stage, long before it gets anywhere near an external whistleblowing situation?
Absolutely; I thank the hon. Gentleman for his intervention, and I will come to some of those issues later. This issue, as has been said, is in part one of culture, of being open, of realising that it should be about learning and fixing rather than trying to shut someone up. The more that downward pressure is put on people—like a pressure cooker—the more that builds, and there is more and more unhappiness. The problem is that in something such as health and social care, it actually affects patients.
That is why I am proposing the Public Interest Disclosure (Protection) Bill. The key thing that I seek to achieve is to remove whistleblowing from employment law and create free-standing protection legislation. If we really value whistleblowing, it should not be tucked away in some corner. It should be something that stands by itself—that sends the message that, in whatever sector, if someone sees wrongdoing and damage, they should come forward.
I pledge my support on a cross-party basis, and I am delighted to associate my name with the Bill. The hon. Member talks about valuing whistleblowers. Does she agree that we should value them not only for the risk they take and the individual issues they raise, but for the wider cultural issues they raise within a system—particularly, as she says, in financial services—which allows this House to put the measures in place to clamp down on that adverse culture?
I welcome that intervention, but whistleblowing should not have to be a risk. It should be a normal part of someone’s work or their duty as a citizen to come forward and report something.
The Bill defines whistleblowing disclosures, but it also widens the definition of “relevant authorities” to include not just employers, but public authorities and regulators, as many whistleblowers report that when they have involved regulators, they have been intimidated in exactly the same way and have made no progress. It places a duty on all relevant authorities not to subject whistleblowers to any form of detriment, and indeed, to protect them from detriment, but particularly—I cannot reiterate this more strongly—to investigate the concern and take action to prevent a recurrence.
The Bill widens the list of professions in which a disclosure may be made to include those previously excluded, such as religious ministers and police officers. Let us consider the cases of child abuse that might have been prevented had priests and ministers been able to speak up, or how much earlier the families of the Hillsborough victims could have been told the truth and given closure.
The Bill also includes those who were not previously defined as employees, such as trainees, interns and volunteers. I am sure that all of us who have taken an interest in this topic are well aware of the four-year persecution of Dr Chris Day, who warned about unsafe staffing in his intensive care unit, only to be told that junior doctors were not classed as NHS employees and that he had no protection. Although that anomaly has been resolved, it highlights the traps that unsuspecting whistleblowers can fall into.
The Bill seeks to establish an independent body with statutory powers to oversee whistleblowing. I have called it a commission in the Bill, but I do not care what it is called. After his report into the deaths in Mid Staffordshire NHS Foundation Trust, Sir Robert Francis established the “freedom to speak up system”, but the national guardian is not a statutory role and the local guardians are trust employees who themselves may be put under pressure when investigating a case. That comes back to the point raised in an intervention earlier: there needs to be absolute objectivity and a determination to deal with an issue locally, rather than it becoming a festering sore. By contrast, the Scottish Independent National Whistleblowing Office was established as a statutory body in 2018. It published its draft standards for the NHS and social care last year.
Devolved Governments will develop whistleblower-support systems for their public services, but PIDA is the underpinning legislation for all sectors—including businesses and financial services—and it no longer serves its purpose. The commission’s duty would be to protect whistleblowers and promote the principle of whistleblowing in the public interest. Such a body would develop standards of practice for whistleblowing policies and procedures and monitor the compliance of organisations with those standards. Such standards would include how issues should be investigated, and organisations would be expected to show what action they had taken to address cases. The standards would stipulate prospective protection of the whistleblower from detriment, from the point of their making a disclosure, including by preserving their anonymity and confidentiality—many whistleblowers suddenly find themselves splattered across the local paper.
The commission would also seek to resolve cases and reduce litigation, which is wasteful of public funds and both expensive and traumatic for the whistleblower. It could provide advice to whistleblowers who do not have any other route to report an issue or who are not making progress locally. It would be able to issue redress orders to try to repair detriment suffered by a whistleblower, rather than just making financial awards, and it would include the banning of non-disclosure agreements, which whistleblowers are often intimidated into signing. When staff have been subject to deliberate detriment, there would be the ability for civil action. As in Australia, criminal charges would be available for the most egregious cases of whistleblower persecution.
There are different ways to improve the quality of a service, and whistleblowing should not be the main method of detecting poor practice, the squandering of public funds or fraud. Just as audit is critical to ensure probity in the financial sector, it is also essential to detect poor clinical practice. In Scotland, we have had regular reporting against quality improvement standards for the most common cancers for many years. In the case of my specialty, breast cancer, I was involved in leading the development of the standards almost 20 years ago. The process identifies outliers, who can then be supported to update their practice, but it also creates peer pressure to drive clinical improvement, as people know that their performance is going to be shared at a conference, openly and transparently, every single year.
It is important to normalise incident reporting and encourage a culture of routinely raising issues without the sense of conflict and pressure associated with whistleblowing. That is the aim of systems such as Datix in the NHS, through which staff record, review and seek to learn from all incidents, from minor to major, including near misses. There will, however, always be cases that cannot be detected by audit, such as alcohol or drug misuse, bullying or racism. For that, whistleblowers are essential.
For whistleblowers to speak up early and reduce harm, they must be valued, supported and protected. In the NHS, that is about patient safety, which is literally a matter of life and death.
It is a pleasure to follow Dr Whitford, whom I congratulate on not only securing the debate but on bringing forward a detailed and considered Bill that is an important and positive contribution to the growing consensus for reform of our whistleblowing legislation. Her in-depth knowledge of the healthcare sector enables her to speak with authority and passion on the subject, as was evident in her speech. I welcome the Bill, because it is right to push for reform. Indeed, dissatisfaction with the present situation among a wide range of groups, individuals and Members of Parliament across the political spectrum has grown into a clamour for reform.
As chair of the all-party parliamentary group for whistleblowing, I am pleased to work with the support of our secretariat, WhistleblowersUK, which shares that commitment to drive reform. The APPG has given its support to the Office of the Whistleblower Bill, which has been presented in the other place by Baroness Kramer. The whistleblowing charity Protect also continues to work towards reforming legislation. On the Government Benches, my hon. Friend Kevin Hollinrake, who is a vice-chair of the APPG, has championed whistleblowers in the banking and financial sector. I also pay tribute to the Prime Minister’s anti-corruption champion, my hon. Friend John Penrose, who spoke in the foreword to the Ministry of Housing, Communities and Local Government’s “Review into the risks of fraud and corruption in local government procurement” about the need to
“bake in a counter fraud and corruption culture from top to bottom of every Council, so whistleblowers know they will be supported rather than victimised”.
I am grateful to the hon. Member for Central Ayrshire for providing this opportunity to discuss the inadequacy of the law as it stands.
The current law, the Public Interest Disclosure Act 1998, was at the time a trailblazing piece of legislation, growing out of employment rights and the drive for a fair relationship between employers, employees and workers. Sadly, as time has passed, PIDA has not lived up to its promise. The hon. Member is right to highlight its flaws.
For many potential whistleblowers, retaliation remains too great a threat to take the risk of speaking up. Evidence provided to the APPG suggests that, because of the grave personal consequences that whistleblowers can face, less than half of those who raise concerns follow them up. A survey last year by the APPG found that 78% of whistleblowers were subject to retaliation. Blacklisting also remains a problem. Some whistleblowers have withdrawn their cases to avoid their identity becoming public and jeopardising their future employability.
As the hon. Member said, the only recourse for an employee who faces retaliation, including unfair dismissal for whistleblowing, is through an employment tribunal, and only 3% are successful when they take their cases forward. Even after success, the compensation, which averages 28%, is often vastly exceed by the terrible financial and emotional cost of bringing a case. PIDA, sadly, is toothless and overly complex, and it lacks the backing it needs to be effective.
There is also an unacceptable lack of clarity about some simple questions. Who is a whistleblower and what counts as a whistleblowing? As long as that is unclear among businesses, institutions and even regulators, and as long as the law does not provide clear standards to follow nor ensure that those organisations understand their legal obligations to whistleblowers, those whistleblowers will not get the protection they need.
Changes over the last decade relating to prescribed persons have been welcome, but by now, three and a half years after the annual reporting requirement for prescribed persons was introduced, evidence shows that those changes have not provided sufficient protection for our whistleblowers. A 2015 report by the National Audit Office found that it was not clear what was expected of a prescribed person and that more could be done to explain their remit.
I was surprised when I was elected as an MP suddenly to discover that I was a prescribed person. We received no training or induction whatsoever.
I am grateful to the hon. Lady for pointing that out because that is exactly the case. I wonder how many MPs realise the requirements that the legislation places on them and whether they understand how best to fulfil them.
I want to think about those who have come forward and blown the whistle because they are the people we are talking about—ordinary, working people who first alerted us not only to issues in the national health service, but to furlough fraud during the pandemic, as they went to work knowing that their employers were also claiming moneys through the job retention scheme. Other workers have blown the whistle on failures to implement social distancing in the workplace and inadequate personal protective equipment provision. In doing so, they have helped protect people from exploitation and from exposure to the virus. Meanwhile, reports of the Chinese regime retaliating against whistleblowing doctors such as Li Wenliang, who raised the alarm about the virus in December, demonstrate more starkly than ever that failure to listen to whistleblowers costs a million lives and causes a global economic crisis.
In my view, every Department stands to benefit from reform. Whistleblowing has been and is vital to the Treasury’s efforts to combat financial fraud, the Home Office’s fight against modern slavery, the Department for Education’s attempts to root out malpractice, and the Ministry of Housing, Communities and Local Government’s efforts to address procurement malpractice and fraud in local authorities and the wider public sector, as well as the uncovering of child sexual exploitation in Greater Manchester and Rotherham.
I wish the hon. Member for Central Ayrshire every success. I hope that we can work together. In my view, working together on important legislation that will be robust and fit for purpose is what we all want. I urge the Minister to work with Departments to ensure that they are behind a Bill that could really make a difference to valuing whistleblowers and changing our practices.
Earlier this year, I was contacted by numerous constituents who work for call centres in Glasgow. I am going to name the one I got the most complaints about, mainly because its responses were the most disappointing to say the least: Sky.
My constituents were forced to go to work in the busy call centre to upsell broadband and TV packages. That is not what Sky said they were doing, but it is what they told me they were doing. Sky also claimed that they could not work from home, when many of their colleagues in similar jobs were working from home. Sky told me that everybody was seated 2 metres apart and that all safety measures were in place, but the photographic evidence told a different story. That was at a time when the Scottish Government were telling employers that employees should work from home where they could. The UK Government were doing something slightly different, and Sky’s last line of defence was that the UK Government trumped the Scottish Government, which, as hon. Members can imagine, did not please me at all. Nor did it please the Scottish Government Ministers who had written to Sky.
The employees were terrified of what might happen to them. They pleaded with me to keep their names out of it and I was happy—indeed obliged—to do that. They should not be so afraid to report what is, after all, a health and safety concern. Eventually, I had to go and look for myself because the fear among them was so great that they stopped telling me. I live five minutes from that call centre and on my daily walk one morning, I took that route and saw exactly what they meant: dozens of people arriving at the same time, no social distancing being imposed or even encouraged. That is why I am confident that I am doing nothing wrong in naming Sky today, but of course, I have parliamentary privilege. Those workers do not and they do not have the right level of legal protection, as we have heard. There is nothing to stop them being bullied, missing out on promotion or worse still, losing their jobs. If the Bill passed, thanks to my hon. Friend Dr Whitford, they would have that protection.
I will be brief, to let the Front-Bench spokespeople conclude. In the parliamentary briefing for this debate, there is a question posed to the Minister: do sufficient protections for whistleblowers already exist in current legislation? I hope his answer to that will be no. I hope that the Bill is successful today, but if not, it will be passed on a future occasion. My hon. Friend Mary Robinson and I are meeting the Minister on Monday to discuss this, because we need reform. The proper protections are not in place at the moment.
I want to give one example, which I have spoken about before in this place, and that is the case of Sally Masterton. She was not a whistleblower. In 2013, she worked for HBOS, and she wrote a report about a fairly low-level fraud in the company. She was discredited by Lloyds to the regulator—it simply said that she was not a credible witness. The Financial Conduct Authority did not investigate. She was effectively suspended by Lloyds, through constructive dismissal. Five years later, the FCA decided that she actually was a cogent witness and said to Lloyds, “You need to do something about this. You need to compensate her and apologise,” which it did. The terrible fact about the case is that nobody at Lloyds or HBOS has been sanctioned for that disgraceful mistreatment of a whistleblower for five years. This was part of a disgraceful 13-year fraud of small and medium-sized enterprises within the bank, and still to this day that scandal has not been resolved.
The hon. Member highlights that the regulator—the FCA—also let that whistleblower down, and that is another thing that needs change.
The hon. Lady is absolutely right. As I said in my earlier intervention, it is not just about the relatively small issues that the whistleblowers highlight. It is about the wider cultural issue. It shows the mismatch of power between the whistleblower, these big, powerful organisations and their customers, which we know we need to tackle, but we would not know that without people like Sally Masterton. I commend the hon. Lady for bringing forward this legislation. I hope she is successful; she will be sooner or later.
It is truly an honour to speak in support of this private Member’s Bill, promoted by my hon. Friend Dr Whitford. The Bill speaks to her unimpeachable ethics, her integrity and her humanity.
When I became a Member of this place, the thing that impressed me most was not the grandeur of the building, the pomp and ceremony of the proceedings or even the walls steeped in history. It was the independent complaints and grievance scheme, which struck me as exactly the way that staff everywhere should be supported and how those who have transgressed should be held to account. In the world of work beyond this place, that is a distant luxury that no worker currently enjoys, and that injustice must be addressed.
The Bill sets out a broad context of applicability, but I would like to focus on power and the abuse thereof. We all abhor violence and abuse in the home, where power relationships cause so much damage to victims and can restrict the life chances of children raised in such a toxic environment. When the power explicitly rests in the hands of superiors, abuse of that power can be every bit as damaging as the abuse and coercion that is ubiquitous in domestic violence. As a consequence, people have their professional career and sense of self destroyed. They carry a trauma and are forever changed. Some find the personal resilience to build a new life, whereas others take their own lives.
Organisations are able to muster the full might of their HR department and legal services to defend the indefensible. Executive colleagues can corral and cover for one another, forever silencing the victim of a non-disclosure agreement and thus locking them in a mental jail in perpetuity, with no recourse to true justice. That is nothing short of abuse, and in my view it should have equal criminal standing with domestic violence. The power that is handed to executives demands great responsibility, and it should never be possible for the resources of high office to be improperly used to cover up for the failings or abusive criminality of those in charge.
This Bill provides an avenue to hold power to account in a fair and balanced way. It is not loaded on one side or the other, but it sends a clear message to those who would abuse power to their own ends that they, like the right hon. and hon. Members of this place, are subject to principles of independent fairness.
That brings me back to my opening comments about my esteemed and hon. Friend the Member for Central Ayrshire and her personal qualities of unimpeachable ethics, integrity and humanity. Surely those are qualities that we all seek to embody and would wish this place to unequivocally stand for. In that spirit, I beg this Bill be supported at Second Reading.
I will be both brief and supportive, as all the speeches this afternoon in this debate have been: brief, because I want to ensure that we get the Bill through this afternoon, and supportive, because it is a Bill that needs the support of the whole House over the next period.
We need whistleblowers across our country to keep businesses and public activities clean and straight and, indeed, to avert the tragedies that may result from internal cultures of denial when things go wrong. Dr Whitford, whom I warmly congratulate not only on bringing this Bill forward this afternoon, but on her tenacity and hard work over a period of years in bringing attention to this issue and what we can do about it, has given a number of examples of where whistleblowing could have made a difference. There are many other examples that we can all think of: Grenfell, the collapse of Carillion and the North Staffs hospital, which we know from the Francis report, and indeed internationally, where maybe one whistleblower might have saved hundreds of lives with the Boeing 737 MAX disasters. We know that the current legislation that we have, the Public Interest Disclosure Act 1998, is not adequate—good though it was at the time—to ensure that whistleblowers get the protection and support they need.
I understand what the hon. Gentleman is saying, but my concern, having learned what happened in the Labour party with the antisemitic complaints and staff members who blew the whistle and were ignored, is that the Labour party itself has questions to answer regarding whistleblowing. Does he agree?
Yes indeed; as the hon. Lady will know, that is happening at the moment, in terms of the support for those whistleblowers at that time in the history of the Labour party and what is now being done about that. That is an example of what is important in this debate.
As I said, the current law is simply inadequate to support whistleblowers properly. As the hon. Member for Central Ayrshire has said, it dissolves down into employment tribunals, where individuals must face their employer, and there is no other way to access justice at the moment. Relevant individuals such as trustees, trainees and volunteers are excluded from the law; there are no official standards for whistleblowing that employers must meet or recognised procedures for them to follow; regulators are unaccountable for the way they treat whistleblowers, and whistleblowers cannot bring a claim against a regulator, but only against their employer. Whistleblowers do not get legal aid and must pay for all their legal fees personally, as I believe Mary Robinson mentioned. Even if they win, they face not being able to recover those costs.
This Bill puts most of those problems right. It extends the types of wrongdoing that can be reported to cover gross mismanagement, serious abuse of authority and so on. It extends protection of those who are perceived as whistleblowers. It provides remedies for close relatives who suffer detriments following whistleblowing. Civil penalties are provided for in relation to a range of infringements, and criminal offences are introduced as a backstop for certain types of non-compliance, including retaliation against a whistleblower.
Inevitably, in addition to those remedies, there are other things that could be done to support whistleblowing. The Labour party has suggested giving protected status to whistleblowers and imposing a statutory duty on employers to prevent victimisation. What I think is not in dispute is that this Bill covers light years in the distance between where we were with protection for whistleblowers in 1998 and where we should be now, and for that reason I think it deserves the support of the full House.
At the start of my remarks, may I associate myself with the words of others in sending my condolences to the family, friends and fellow officers of the police officer who lost his life in the Croydon Windmill Road custody centre? The centre is shared by my borough’s police officers, and I know that many of them will be going home tonight saying, “There but for the grace of God go I”.
I commend Dr Whitford for enabling this debate on a really very important topic. We have heard the passion and the concern of Members on both sides about whistleblowers. She has spoken on previous occasions about the experience of whistleblowers and advocated the need for reform. I have only four minutes, so unfortunately I will not be able to do this important debate the justice it requires, but I want to cover as much as I can directly.
The hon. Lady raised the issue of the burden being on the employee at the tribunal in particular. That is not necessarily the case in many examples, because if the worker can show that their disclosure was protected and that they suffered detriment, the burden shifts to the employer to prove that the detriment was not covered by whistleblowing. That must be a qualifying disclosure, which basically means any information that in the reasonable belief of the worker making the disclosure is in the public interest. This helps to protect against spurious claims and it means, in particular, that personal grievance complaints are not usually covered by these rights.
It is really important that all workers should feel confident that they will be listened to, that actions will be taken to respond to the concerns and that they should never suffer criticism or detriment for speaking up. In response to the 2015 “Freedom to Speak Up” report, the hon. Lady raised the issue of speaking up in the NHS, and we did establish the independent national guardian to help drive positive cultural change across the NHS so that speaking up becomes business as usual.
I appreciate that it is not a statutory position, but I would just say that nothing is perfect. I must preface my remarks by saying that with all these things we need to keep reviewing the effectiveness of the whistleblowing framework within the NHS, as we are continuing to do with whistleblowing in general.
The most recent results, published last year, for the National Guardian Office’s freedom to speak up index, which measures how NHS staff and trusts perceive making disclosures in their organisations, showed that 180 trusts had improved their freedom to speak up index score over the past three years. That does indicate an overall improvement in the speaking up culture, which is so important. More than 19,000 cases were raised with freedom to speak up guardians in trusts between
In the two minutes remaining, I will turn to the provisions of the hon. Lady’s Bill. There are a number of issues that we are going to find difficulties with, but, as she readily admitted, this is a starting point for the discussion. She raised PIDA, which does protect workers from dismissal or detrimental treatment by their employers. On whether we should look at extending the scope of those covered by PIDA—for example, to foster carers, volunteers and public officials that people may be concerned about—we would need to consider expanding the definition of whistleblowing. I think it was my hon. Friend Mary Robinson who talked about whether we understand the definition of whistleblowing. As we look to specify that, or at whether we should change or expand it, we must look at whether we are going beyond the employment sphere and at what that would mean for enforcement and redress. That is currently for employment tribunals, but we will obviously look at—
The debate stood adjourned (
Ordered, That the debate be resumed on Friday 5usb February.