Baroness Kramer:

Moved by Baroness Kramer

53A: After Clause 12, insert the following new Clause—“Whistleblowing and oversight body for nationally significant infrastructure projects(1) The Secretary of State must, within six months of the day on which this Act is passed, by regulations establish an independent body for the purpose of receiving and investigating protected disclosures in connection with nationally significant infrastructure projects.(2) The body must have responsibility for—(a) receiving disclosures of information from individuals or organisations relating to suspected misconduct, mismanagement, breach of environmental regulations, or any other matter of public interest connected to nationally significant infrastructure projects;(b) assessing whether such disclosures fall within its remit and merit investigation;(c) undertaking investigations where appropriate and referring matters to relevant regulatory, law enforcement, or oversight bodies; (d) providing advice and guidance to individuals considering making protected disclosures in relation to such projects;(e) reporting to the Secretary of State on the nature, volume, and outcome of disclosures received, with appropriate protections for confidentiality and whistleblower anonymity;(f) establishing and maintaining a framework setting out the protections afforded to whistleblowers, including remedies for individuals who suffer detriment as a result of making a disclosure, and procedures for seeking redress.(3) For the purposes of this section, “protected disclosures” are those that meet the conditions set out in section 43B of the Employment Rights Act 1996 (disclosures qualifying for protection), as they relate to the planning, development, or operation of nationally significant infrastructure projects.(4) The Secretary of State may by regulations make further provision about—(a) the governance structure of the body;(b) the process and criteria for assessing disclosures;(c) collaboration between the body and other statutory regulators or planning authorities.(5) Regulations under this section are to be made by statutory instrument.(6) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”Member’s explanatory statementThis new Clause would require the Secretary of State to establish an independent body to receive and investigate whistleblowing disclosures relating to nationally significant infrastructure projects, including responsibilities for oversight, guidance, referral, and protections for whistleblowers.

My Lords, Amendment 53A is in my name and that of my noble friend Lord Shipley, who is unable to be here today. This Bill is part of the Government’s programme to unleash new infrastructure projects across sectors and in every part of the country. It is a vital part of the strategy for growth. Such projects are hugely costly and complex and contain many uncertainties, especially in their early stages. Many of them will involve public investment or have a major impact on ordinary people, which means that integrity and transparency are vital if we are not to waste money, undermine public trust and fail to get the outcomes we need.

The earliest warning that things are going wrong and are being covered up come from whistleblowers. If whistleblowers had been heard, we could have avoided the Grenfell tragedy. I know one tower is not a national infrastructure project, but the silencing, even where lives were at stake, of whistleblowers in the construction and safety industries has a real read-across when we start looking at new towns. We were constantly told that the Elizabeth line was on time and on budget until suddenly, four months before it was due to open, we learned that there were major problems. It opened three and a half years late and £4 billion over budget. Why did not even the Mayor of London know earlier? It was because whistleblowers had been silenced.

On HS2, I can use the names of two of the whistleblowers because they have gone public. Doug Thornton and Andrew Bruce, very senior engineers and executives, were fired for doing their jobs with integrity in informing the management of huge costing errors and refusing to falsify figures. They did not just lose their jobs; for years, they suffered blacklisting in the industry.

It is not just whistleblowers who pay the price. Those who died at Grenfell were victims. The taxpayers paying for huge cost overruns are victims. We now live with a shortened HS2, the cost of which is still unknown. I have great faith in the new HS2 CEO, Mark Wild, but while he can uphold a speak-out culture in his organisation, he cannot ensure it in contractors, suppliers, consultants and so many others engaged across the piece.

My amendment would set up a whistleblowing and oversight body for nationally significant infrastructure projects. It would have the necessary expertise to receive whistleblower disclosures, to protect whistleblowers from detriment and to investigate. What is in place today is the same whistleblowing framework that allowed Grenfell, the Elizabeth line and HS2 to happen, and there are many more examples all over the country of failures covered up and whistleblowers silenced, including school, hospital and housing projects.

The current whistleblowing framework protects confidentiality for a limited set of workers making their disclosures to a limited set of prescribed people. Confidentiality often does not work because people have already spoken out to colleagues and others. If whistleblowers who are employees lose their jobs, they can go to the employment tribunal. A single day with a barrister—and a barrister is vital to pursue cases effectively in employment tribunals—costs £3,000. Multiply that by the number of days, witness statements and all the preparation, and your Lordships begin to get an idea of the financial cost of going to an ET.

The whistleblower must prove they were not fired for some reason other than whistleblowing, which requires hard evidence—the tribunal is very clear on that—and most people cannot access hard evidence to prove that they were not fired for some other reason. They must survive delays and appeals lasting years, during which they have no income. They know that if they lose, they will have to pay the legal fees of the employer. Informal job blacklisting is a scandal but is a norm and is never addressed by the tribunals. That is why most whistleblowers settle and sign non-disclosure agreements. Directors, self-employed contractors, customers and suppliers are not protected at all if they speak out under the current whistleblowing framework.

Some will know that my preference is to set up a central office of the whistleblower under the Cabinet Office, which, as a hub of expertise and with the necessary core powers, would link by spokes to the relevant regulators, investigators and enforcement agencies. So far, the Government have not warmed to that idea. For that reason, and given the urgency of the issue, I am proposing this narrower approach of a body to focus purely on national infrastructure projects.

One definition of insanity is repeating the same thing over and over and expecting a different outcome. Launching a major programme of infrastructure and expecting people to speak out when things go wrong while the current whistleblowing framework remains unchanged, or just a bit tweaked here or there, is, frankly, insanity indeed. So I ask the Government to listen and either accept my amendment or find other ways to come properly to grips with the need for safe whistleblowing. I beg to move.

My Lords, I listened carefully to the noble Baroness’s comments. I was not planning to speak but, given that I was the Secretary of State alongside the Mayor of London when we had the bad news about Crossrail, I thought I would contribute a thought to this discussion.

First, the noble Baroness is right about many of the issues. What happened in 2019 was a combination of head in sand and a lack of understanding of the complexity of the Crossrail project. It was outrageous that the mayor and I discovered only as late as we did that the project was as far off track as it was. That is the reason I set up the Allan Cook review into HS2 that identified the following spring that the project could not be delivered for the budget that was there. I said clearly, “That’s your budget. You have to deliver it for that amount of money—otherwise, there’s a real question over whether it can happen at all”.

Although the noble Baroness makes an important point, equally we have to remember the problem of disaffected employees. How do you deal with a whistleblower who has a separate agenda—somebody who has been dismissed, somebody who is unhappy at work and so forth? I am not convinced that setting up a separate agency is the right way to deal with what she is suggesting, but she is making a salient point. There probably needs to be a much earlier mechanism to raise a danger flag about a project that is not going the way it should, because there is a reluctance to tell truth to power. In these projects there is an optimism bias and always a feeling that, “Well, something will come along to bring it in okay after all”. I suggest to the noble Baroness and to Ministers a possible route for NISTA, the new infrastructure body, to have some form of investigatory role. If somebody says, “This project appears to be going badly wrong” early on, that might be a better way of doing it than setting up a separate body altogether.

The reality is that the mayor and I should never have been in the position we were in of discovering so late in the day about a project that we had been told clearly was on track and was going to open, with the first trains running the following December. The noble Baroness makes a valid point in saying that there should be safeguard mechanisms in the system, but the mechanisms that should exist are probably best handled through the national infrastructure bodies than through a separate organisation in its own right.

My Lords, I am very sympathetic to what the noble Baroness said but, rather like the noble Lord, Lord Grayling, I am not sure that another statutory body is the right way to deal with this. Thinking back to my experience in the NHS, I cannot think of the number because there have been so many whistleblowing initiatives. There have been edicts and circulars, and I think we have some legislation as well. But I think we would find it hard to say that we think the NHS has a culture in which whistleblowers feel confident to come forward; they do not.

The noble Baroness has raised an important question, which I hope the Government will consider. We need to start talking to the leaders of organisations to understand what the issue is in relation to whistleblowers. It is, of course, partly the point that the noble Lord, Lord Grayling, raised; sometimes whistleblowers can be awkward people and therefore have already built up a feeling against them. Sometimes they could be making trouble, but very often they are raising legitimate points.

Part of the problem is the punitive culture for senior managers in much of the public sector. Why do NHS chief execs discourage whistleblowing? It is because we have a punitive culture. The turnover rate of CEOs in the health service is frightening; it is so rapid. Somehow, to deal with whistleblowing, you have to look at a much wider issue of whether we set conditions in which leaders have greater freedom to develop and grow their organisations from the current micromanagement they often come under. We also need a culture in which, if CEOs really do encourage their staff to raise concerns, the system then does not come down.

There is clearly a tension. I am sure that many CEOs know that, in their hospital trusts at some point, there are unsafe services. They know they do not have enough clinical staff. The penalty for admitting it, however, is to have regulatory Intervention and managerial intervention from above which basically says, “You get on with it. We are much more concerned about finance and throughput”. Unless we are realistic about why senior management does not encourage whistleblowers, the reality is that any of these kinds of initiatives will not be effective in the end.

My Lords, I briefly and with pleasure offer support for the noble Baroness, Lady Kramer, who is the House’s acknowledged expert and champion in the area of whistleblowing. Reacting to some of the comments made, the noble Baroness said she would prefer to see an overarching system rather than operating within the frame of this Bill. With the huge changes the Bill is potentially making, it is clearly very important that, if things are going wrong, we are able to see them and whistleblowers can safely speak out.

The noble Lord, Lord Hunt, raised the health service. It is useful to reference our earlier debate on the infected blood scandal. The noble Baroness, Lady Brinton, went through a very long list and ran on a theme she has long been running on; we have this cascade of continuing scandals and crises with all sorts of harrowing outcomes. I do not think she mentioned this, but issues such as sodium valproate and vaginal mesh are quite recent and possibly ongoing. There is a systemic problem with the structure of government and the way it is working. We are potentially giving the Government much more power here.

I want to fulfil my traditional Green role and add to the thoughts about the impact on the environment and when environmental issues go horribly wrong, as they potentially will. I note that since we were last in Committee the Government have brought in some changes to the highly controversial Part 3, which the noble Lord, Lord Grayling, referred to. In response to those changes, the Office for Environmental Protection has said:

“We are clear that even after the material amendments the Government proposes, the Bill would, in some respects, lower environmental protection on the face of the law”.

The OEP is saying that if we are lowering environmental protections, there is a real risk—“environment” usually means human health impacts as well—and environmental whistleblowers need to be able to speak up and point out what is happening. These are people from within organisations who may be the only ones who really know what is happening.

Finally, I thank the noble Baroness, Lady Kramer, for mentioning HS2 so that I do not have to.

My Lords, I thank the noble Baroness, Lady Kramer, for tabling this Amendment. It is a clear and well-intentioned proposal that raises important questions about how individuals can share concerns relating to NSIPs. We on this side of the House recognise the value in exploring such concerns and that they are heard and addressed. Clarity in that process is undoubtedly important. However, at the same time the question of establishing independent bodies through amendments is not straightforward. There are practical and structural considerations that merit careful thought, particularly around proportionality, as my noble friend Lord Grayling mentioned.

I want to focus on what the noble Lord, Lord Hunt of Kings Heath, said: this is an issue of culture. No bureaucracy can overcome the wrong culture, and we need to fix the culture if we are genuinely going to have people listening to whistleblowers. So, while we welcome the opportunity for Ministers to set out how the concerns will be raised and responded to—and clarification will be helpful in understanding whether further mechanisms are needed—it will be most interesting to hear from the Minister how he will change the culture.

My Lords, Amendment 53A, tabled by the noble Baroness, Lady Kramer, seeks to insert a new Clause that would require the Secretary of State to establish an independent body to receive and investigate whistleblowing disclosures relating to nationally significant infrastructure projects, including responsibilities for oversight and protections for whistleblowers.

The NSIP regime is responsible for delivering consenting decisions on the most complex and critical infrastructure projects. The framework, underpinned by the Planning Act 2008, is based on principles of fairness and transparency. As noble Lords have heard throughout the debates on the Bill so far, it is vital that the Government’s decisions on major infrastructure projects are properly informed by relevant expert bodies, as well as those who are affected by the application, including landowners, local authorities and local communities. That is what the Planning Act and NSIP regime enables.

This planning process includes the transparent appointment of an examining authority, which has six months to consider the views of members of the public, local authorities and other interested parties as part of the examination of an application. It also involves interested parties such as regulators, including the Environment Agency and Natural England, in examinations, and enables them to outline any concerns they have. Ultimately, based on evidence and the legal framework, the Secretary of State has the ability to grant or refuse consent for the development consent order, and must prepare and publicise a statement of reasons for their decision. Finally, the lawfulness of decisions can be challenged in the courts.

While I have been interested to hear the noble Baroness’s views today, I am afraid that I do not share the view that whistleblowing is a widespread issue within the NSIP regime or that there is currently sufficient evidence to warrant action. More broadly, I understand that the noble Baroness, Lady Kramer, has long called for the introduction of an office of the whistleblower to centralise and triage disclosures, enforce standards and provide advice and support to those considering making a disclosure of information. However, the Government do not support the establishment of an office of the whistleblower at this time. Such a step would introduce a significant structural change to the whistleblowing legal framework, which the Government believe should be considered as part of a broader assessment of the operation of the framework. I also do not agree that this is something which should be tackled through this Bill.

The Government are keen to work with organisations and individuals who have ideas on how to further strengthen the whistleblowing framework. Our first priority is the Employment Rights Bill, which delivers on our commitment to strengthen protections for whistleblowers who report sexual harassment at work. I do not think the fact that they are not NSIPs is the best argument to make, given that they are so evocative. It is a really important issue to discuss here, with the relevant focus. No examples were given by the noble Baroness that would give consent to the NSIP regime or go through the system. I therefore ask the noble Baroness to beg leave to withdraw her amendment.

My Lords, I am obviously not encouraged by the government response. It seems a weakness not to recognise how essential it is that there is transparency in major infrastructure projects, for the sake of everybody involved—but I was very encouraged by the comments across the Floor. I am not precious about how whistleblowing is structured, except that the channel needs to be genuinely perceived as being independent and having the power to protect whistleblowers, making sure that investigation follows where necessary.

I will make two comments. First, on grievances, part of the reason for having an expert body is that it will be expert at identifying the truth. Sometimes under a grievance there is real truth that matters, but there can be mischievous reporting. Whistleblowing expertise is very good at quickly winnowing that out, because obviously that is not where you are going to focus your time, energy and effort, and you want to make sure that it is stropped in its tracks. But we know from experience across the globe that that is very well managed.

Secondly, on the issue of changing the culture—that is what they used to say in the United States, until offices of whistleblowing were introduced widely across the financial sector and are now being picked up by the Department of Transportation. That may change with the Trump Administration, but you are seeing them picked up across other areas in the United States, because having an Office of the Whistleblower with the appropriate kind of powers has had a dramatic impact on the culture. There has been a sharp drop in bad actors, because people know that they are not safe. There is no greater deterrent than knowing that somebody will speak out, and it very much changes the whole culture within an industry.

It is also important to recognise that, with a good whistleblowing system, you get information very early—it is the canary in the mine. Therefore, in the case of the Elizabeth line, you know very early on that something is going wrong when you have scope to act, correct and manage. It is truly an important mechanism to save a project as well as protect the public.

I am fascinated that this argument is beginning to get widespread recognition and traction. I am totally supportive of a great deal of new infrastructure across the UK, so let me suggest that we must have with it a mechanism that means that disclosure and transparency happen at the earliest possible moment when things go wrong and before they turn into project-destroying phenomena.

Amendment 53A withdrawn.