Protection for Whistleblowing Bill [HL]

Lord Bassam of Brighton Excerpts

Friday 2nd December 2022 Lords Chamber

[Lord Bassam of Brighton (Lab)]

My Lords, all speakers have congratulated the noble Baroness, Lady Kramer, on her persistence, and I join in that. This is her third time of asking, but she has pursued this case at other parliamentary moments as well, and we can all applaud it. I start from the premise that whistleblowers fulfil and perform an important public service. As we have heard in the debate thus far, barely a day goes by without there being news of a scandal that would never have come to light had it not been for the public service provided by a whistleblower.

As we have heard, the key purpose of the Bill is to increase the protections for whistleblowers in the UK. This follows concerns raised by parliamentarians and whistleblowing support organisations about the general effectiveness of the current Public Interest Disclosure Act 1998 in providing adequate and comprehensive protection to whistleblowers and the public. The Bill would introduce several protections for whistleblowers, including the establishment of an independent office of the whistleblower. The Bill also creates offences relating to the treatment of whistleblowers and handling of whistleblowing cases. It would repeal the UK’s current whistleblowing legislation. The case for that has been made by a number of Peers during the debate. My noble friend Lord Browne of Ladyton said that the current framework does not work, and he is absolutely right.

The Bill has more to it than its predecessor. In particular, it focuses on creating a criminal offence of subjecting a whistleblower to detriment, and it brings forward civil penalties that could be imposed on a person for failing to comply with obligations placed on them by the office of the whistleblower. Those measures reflect the concern at the treatment of whistleblowers.

Several whistleblower-support organisations have welcomed the Bill, particularly the creation of the office of the whistleblower. Not all have agreed that the Public Interest Disclosure Act 1998 should be repealed, and some have argued that the legislation should be reformed instead. That is a genuine and real debate. The Government have in the past committed to undertake a review of the UK’s whistleblowing legislation, and in October said that the scope and timing of the review would be set out in due course. My question to the Minister is: when will that be?

The establishment of the independent office of the whistleblower was first raised by the noble Baroness, Lady Kramer, in 2017 in Committee on the then Criminal Finances Bill. At that time, she introduced an amendment that aimed to protect and provide compensation for whistleblowers. She said that establishing an office would help to enshrine the importance of whistleblowing in the public domain. I think that we are all agreed that whistleblowers need more protection, but we are not necessarily all agreed about the form that it should take.

In April 2021, the Government said that they remained committed to reviewing whistleblowing legislation and that the review would be carried out

“once sufficient time had passed for there to be the necessary evidence available to assess the impact of the most recent reforms”.

We have had plenty of time to consider these things—why have the Government not brought anything forward between April 2021 and now? The case for a review is long overdue, and I hope that we will hear from the Minister this afternoon exactly where they are at. In July, the Government said that the scope and timing of the review would be confirmed in due course. Several months have gone past since that observation was made. Most recently, on 26 October, in their response to the House of Commons Foreign Affairs Committee’s report on illicit finance and the war in Ukraine, the Government reaffirmed its commitment to reviewing the whistleblowing framework. They said that the scope and timing of this review were still under consideration. Why so many promises and so little action?

When people come forward, they do not do so for money or fame; it is often in spite of the impact on their career or family. They do so because, as other noble Lords have said, they believe that they are doing the right thing and that the public have a right to know. There are many examples where whistleblowing could have made a real difference and saved lives: Grenfell, Carillion and Boeing 737 MAX, just to name a few. This afternoon, we have been reminded of some of the terrible cases involving NHS trusts and charities. Yesterday we had a debate in your Lordships’ House, in which my noble friend Lord Browne and I took part, focusing on the Metropolitan Police. If ever there was an institution in which protecting whistleblowers was important, that would be one very high up on our list.

We know that the current legislation is not adequate or fit for purpose. It is over 20 years old. While it was workable at the time, it does not ensure that whistleblowers now get the protection and support that they need. Its use essentially comes down to employment tribunals, where individuals must face their employer, with relevant individuals such as trustees, trainees and volunteers being excluded from the law and regulators being unaccountable for the way that they treat whistleblowers, who do not even get legal aid and must personally pay their legal fees. Ultimately there are no official standards for whistleblowing, and employers must meet all recognised procedures for them to follow. That can have a serious impact on how quickly whistleblower reports are accessed.

Sadly, it seems to me and, I think, to others in this debate, that the Government do not take this as a priority. As many others have said, the most recently introduced change was back in 2017: a new legislative requirement for most prescribed persons to produce an annual report on whistleblowing disclosures made to them by workers and employees—a useful move but perhaps only a small one that has really not taken us much further forward.

In terms of the Bill, the idea of an office of the whistleblower is certainly one that we value, and we on the Labour Benches would welcome the opportunity to have further debates on that issue. It would be helpful to hear the following from the Minister: what concerns does he have about a dedicated office that have prevented the Government from bringing it forward? How can the protection and support that such an office might offer be effective without the creation of something like an office of the whistleblower? If the Minister’s and the Government’s concerns are financial, what estimate do they make of the cost that is so much of a barrier?

The Labour Party has suggested giving protected status to whistleblowers and imposing a statutory duty on employers to prevent victimisation, something that many noble Lords in this debate have made reference to. Does the Minister support such proposals so that we can prevent discrimination against victims?

Whistleblowers play an important role in protecting the public and consumers. They save lives, money and reputations, and they could do much more with protection. They could ensure that businesses and services operated more effectively and improve efficiency, as well as preventing serious incidents and accidents from occurring. We need to ensure that they receive the right and proper support. To do that, we believe that action is needed. I look forward to hearing what the Minister proposes by way of his response. The Bill goes a long way in the right direction. It is worthy of further consideration and of your Lordships’ support.