My Lords, perhaps it would help to start this debate by explaining why I regard whistleblowers as crucial to a healthy society. To quote Stephen Kerr, the former Conservative MP and first chair of the APPG for Whistleblowing:
“Whistleblowers are the first line of defence against crime, corruption and cover ups.”
Indeed, the APPG’s first meeting coincided with breaking news of the Gosport War Memorial Hospital scandal, including stories describing how whistleblowers were ignored and silenced.
The scandals exposed by whistleblowers range from care homes, the NHS, policing, the Prison Service and transport projects to financial institutions—many of those, unfortunately—and many private companies. Research by the chartered institute of fraud has found that 42% of all internal fraud is identified by whistleblowers. But before anyone thinks all is well, the sad history of many scandals is that early warnings are ignored when they should be regarded as the canary in the mine and many whistleblowers pay such a personal price that others who want to speak out are deterred. That has to change. I see whistleblowers as a citizens’ army, not just exposing wrongdoing but significantly deterring it.
The first phase of the work of the APPG for Whistleblowing focused on providing a platform for whistleblowers to describe their experiences and recommend reforms. The lived experience of so many whistleblowers, shared in their testimonies, was a legacy of inaction and retaliation when they spoke out. This came with devastating professional and human consequences, with many seeing their lives turned upside down. Despite moves to increase the role of regulators and enforcement authorities, it remains the reality for so many whistleblowers. The APPG’s 2019 report outlined a 10-point plan to improve this situation, from a legal definition that includes all whistleblowers to proposing new ways to support individuals and protect them from retaliation. Crucially, it recommended the creation of an independent office of the whistleblower with real power to act.
In its second phase, the APPG has been talking to regulators. My assessment—the APPG has not yet concluded its work—is that most regulators regard their role in dealing with whistleblowers as very limited by law. Anyone who trawls through the various regulators’ websites will quickly find that the rules for each regulator not only differ but rarely meet the obvious expectations of whom they can hear and what they can do. This situation is confusing and chaotic, and must be improved. Every regulator will tell you how important whistleblowers are. I am sure the Minister will take the same view. I am here today because of the gap between these assertions and the reality facing those who become whistleblowers. Behind every new scandal is a legacy of vital early warnings being ignored and the whistleblowers who bravely put their heads over the parapet being left out to dry and overlooked.
My Lords, this is an important Bill which addresses an area that needs thoughtful sorting out. I agree with the points the noble Baroness, Lady Kramer, made. There is no point in me repeating any of them, but one I think is particularly important is the whole area of financial redress to whistleblowers. They cannot be left out of pocket and many of them without work. Their whistleblowing has harmed their employment and their future, and that is very serious.
I have two caveats about whether there should or should not be total anonymity. The French experience during the Second World War resulted in France not allowing anonymity for whistleblowers nowadays, because the quickest way of getting your neighbour’s property was to make an anonymous report to the Gestapo that they were members of the resistance, at which point they disappeared. We must always be careful of people using this mechanism incorrectly for their own business ends and that it does not become a weapon, but this is not to say that everything the noble Baroness, Lady Kramer, said about protecting whistleblowers was not right.
I also remember back to the 1980s, when I was in software development. If you lost a software developer to the opposition, the best thing was to get an Anton Piller order, at which point you walked in and seized all their files and records because you said there had been copyright infringement. That closed them down for at least a week and put them at a serious disadvantage. It was even better if you could actually follow up with a Mareva injunction—which we never did—because, with a bit of luck, they would go bankrupt. You have to be very careful about some of these things being used in that way.
One of my sons commented on the disturbing tendency that there is no longer the principle of innocent until proven guilty. You can now force people to resign, often from high-profile public positions, by an accusation that many years ago they behaved inappropriately by today’s exacting standards—and this resignation must happen immediately, before any examination of context, veracity or circumstances. Two consequential thoughts came to me from this. The first is that there must not automatically be an unquestioning belief that any blown whistle is true. You will get ones that are not, but it must be handled terribly carefully. The second is a bit broader than the Bill, but I thought I would slot it in here, and it is relevant to stuff that has happened recently in the news. Carelessly worded and overhasty tweets made by someone who is young should not be held against them for ever, especially once they have entered a more reflective and responsible area in their lives. We have a Rehabilitation of Offenders Act, which allows people to put their past behind them after a certain period and gives them a fresh start. We should do the same for all these people who have poorly presented pronouncements in the past which are perceived painfully.
It is a pleasure to follow the noble Earl, and I congratulate my noble friend on securing this debate and on the compelling way she has presented her Bill. As she has demonstrated, there is a clear need to reform the way we deal with whistleblowing and I strongly support the reasonable and reasoned approach to reform proposed in this Bill.
As my noble friend Lady Kramer noted, two weeks ago, the Minister for BEIS, Paul Scully, acknowledged the need for review of the whistleblowing framework, but he qualified that by saying:
“we will do that once we have sufficient time to build the necessary evidence of the impact of the most recent reforms”.—[Official Report, Commons, 8/6/21; col. 846.]
The reforms he refers to took place in 2017 and were essentially confined to establishing the publication of annual incident reporting. That was four years ago—plenty of time to assess the impact of these relatively minor new requirements. I hope the Minister will not argue the need for more time or evidence. I hope he recognises both the need for rapid action and the merits of the approach proposed by the Bill.
Whistleblowers make a vital contribution to our national life, but they face enormous difficulties. Two of the most egregious cases are the attempt by Jes Staley, CEO of Barclays, to discover the identity of a whistleblower who made serious allegations against the bank; and the truly appalling treatment of Sally Masterton by Lloyds in connection with her exposure of criminal practices. The details of these cases make for grim reading about the shocking behaviour of very senior people in our banking sector. These and many other cases demonstrate the huge inequality of arms between the blowers and the blown upon. They demonstrate the fact of life-changing retaliation against whistleblowers, the feeble punishments meted out to transgressors or the ability of those responsible to avoid punishment altogether, and the moral and cultural failings of some of our largest institutions.
My Lords, I too congratulate the noble Baroness, Lady Kramer, for her persistence in pursuing this important issue and for introducing this Bill. Offering guidance, protection and support for whistleblowers, with a central body that can co-ordinate across sectors—from care homes, to hospitals, to furlough fraud, to financial firms—is clearly an important aim.
The Employment Rights Act 1996 and the amendments in the Public Interest Disclosure Act 1998 are way out of date and leave significant lacunae. For example, they do not even cover entire groups, such as trustees, non-executive directors or the self-employed. There is no joined-up approach to protecting whistleblowers, and the Bill proposes establishing an umbrella body to co-ordinate across sectors, which clearly seems to be needed. Working internally, the whistleblowers are best placed to uncover wrongdoing, yet face monumental hurdles when they try to report issues that are clearly in the public interest.
The noble Baroness’s Bill proposes this new body to, for example, create a panel of accredited legal firms or advisers and a fund to support whistleblowers, as well as to ensure proper financial redress for those who are victimised for trying to do the right thing.
Whistleblowing is too often viewed negatively—some kind of betrayal of your employer, who is a potential wrongdoer—unlike compliance functions, which are accepted as necessary to protect the public. Unfortunately, as the noble Lord, Lord Sharkey, explained, the reforms in 2017 require bodies such as the Bank of England or the General Medical Council merely to produce a report on whistleblowers. That is clearly not sufficient to protect the whistleblowers themselves, who are battling through the courts to try to protect their own employment position, as the noble Baroness, Lady Kramer, described.
The USA has much stronger protections, and we are falling behind internationally. It recognises that whistleblowers are often important parts of stopping wrongdoing, but our regulators do not seem to be equipped, or take too long, to react to whistleblowing. They end up being years behind the wrongdoing. Meanwhile, the offences continue and the whistleblower is still fighting through the courts for redress.
My Lords, I too congratulate the noble Baroness, Lady Kramer, on introducing this Bill. She and the noble Baroness, Lady Altmann, who it is a pleasure to follow, are right to highlight that fundamental change to the legal framework for whistleblowing is necessary.
Having represented whistleblowers—indeed, the noble Baroness, Lady Kramer, mentioned one of my cases in her opening speech—and had the benefit of discussions with leading experts in the Institute of Employment Rights and with my friend Professor David Lewis of Middlesex University, I suggest the following eight points for consideration in the consultation that the Bill proposes.
First, there should be a statutory right to speak out and no civil or criminal liability for doing so within the legal confines of what whistleblowing is.
Secondly, all workers, including the police, armed services and security services, should have the protection of whistleblowing. Of course, it is understood that publication on matters of state security must be protected.
Thirdly, “reasonable belief” as a qualifier for public interest disclosure should be replaced by “reasonable suspicion” on the part of the worker, as proposed by Dame Janet Smith in the Shipman Inquiry.
Fourthly, trade unions have a role to play. A full-time trade union officer should be able to certify a protected disclosure and should be a legitimate recipient of a whistleblowing disclosure. Trade unions should have the right to bring proceedings on behalf of whistleblowers in the name of the trade union.
Fifthly, the list of wrongdoing already in the legislation should also include gross mismanagement or maladministration.
Sixthly, we should remove the public interest test and substitute for it a protected disclosure of a specified type of wrongdoing, as listed in the legislation, made to an appropriate recipient, including the office of the whistleblower.
My Lords, I, too, welcome the Bill and congratulate the noble Baroness, Lady Kramer. I shall be brief.
Whistleblowing has a very important place in workplace safety and the well-being of business and its employees. Because of that, it needs to be encouraged and nurtured. When I joined your Lordships’ House 23 years ago, I was invited to join a company called Safecall, based in the north-east, which provided an independent means of reporting wrongdoing in or by organisations.
Having been a detective in Durham for a number of years, I had come to value the importance of citizens whistleblowing, or informing, to the police. This also provides a service for the public good in protecting citizens and detecting crime. A good informant needs protecting, and we now have witness protection programmes for this purpose, whereby anonymity is sometimes guaranteed.
Your Lordships will recall the TV drama “Line of Duty”, where one of the strange acronyms was the term CHIS—a covert human resource, also known as an informant. These sources of information are essential in policing, are often rewarded and need to be regulated and protected. So whistleblowing is not a new phenomenon: it occurs in all areas of society and needs regulating and protecting where it is in the public interest. The Bill of the noble Baroness, Lady Kramer, does just that and establishes the office of the whistleblower, which would provide directions and administration of arrangements to facilitate whistleblowing.
The present position is piecemeal, and this is a long overdue measure which, had it been in place, might well have prevented the debacle at the BBC, where the very person who blew the whistle on the activities of Martin Bashir in forging bank statements to obtain an interview with Princess Diana was himself dismissed and his career as a graphic artist ruined. Whistleblowing is a public good which can prevent mischief at source. It can protect reputations, livelihoods and lives. It is our duty to give it our support, and I commend the Bill to the House.
My Lords, congratulations to my noble friend Lady Kramer on bringing this super-important, much needed Bill to the House.
Whistleblowers have for so long paid a price for their bravery in bringing to attention that which organisations, institutions or Governments want kept secret. Take your pick—the Catholic Church, the NHS, the Government, the banks, the BBC and more, all of whose reputations the powers that be judged far more important than those put in jeopardy by their refusal to hear and act on what they were being told. More often than not, those institutions shoot the messenger, those who warn of peril, rather than expose their own weaknesses or wrongdoing. It is immoral.
One brave whistleblower, Kim Holt, at that time under a gagging order and on two-years’ so-called gardening leave, came to me as her MP. She was one of four senior consultant paediatricians in the Haringey child protection team. Many of your Lordships will have heard of the Baby P case, in which baby Peter Connelly tragically died. Of course, it was his family who actually killed him, but it was the cover-up by the institutions that failed to listen to all the warnings given about what was happening in the departments charged with his care that failed him.
Great Ormond Street Hospital was the worst, and it was in charge of the clinic. The four senior consultant paediatricians there, including Dr Holt, jointly signed a letter to Great Ormond Street Hospital management, saying that they were extremely worried about the terrible processes in the department that meant children were being put in danger. I worked with Tim Donovan of BBC London, and we discovered that Great Ormond Street Hospital commissioned an independent report on the role of the paediatric health team run by Great Ormond Street. It was called the Sibert/Hodes report, and its findings were damning, exposing the danger and the responsibility thereof. Despite the report pinning the failures accurately, it never saw the light of day. Great Ormond Street suppressed the original version that contained the truth and published a summary omitting all the points detrimental to Great Ormond Street.
My Lords, I congratulate the noble Baroness, Lady Kramer, on this much needed Bill, which I fully support. Whistleblowers take enormous personal risks to protect society from harmful practices, but they receive little support from within the organisation or from industry regulators, which are all too often inclined to silence individuals. Whistleblowers and their families pay a heavy price for exposing wrongdoings and their reward is often insecurity and early death.
The issues become evident whenever anyone looks at the life histories of whistleblowers. One such person was Paul Moore, head of group regulatory risk at HBOS. His revelations foreshadowed the follies exposed by the 2007-08 banking crash. In 2004, he reported reckless risk-taking through unsustainable lending and the sale of dubious financial products, such as payment protection insurance, to the HBOS chief executive. Paul was fired for reporting this. His complaint was put to HBOS’s auditor, KPMG, which is hired and paid by directors, and which inevitably sided with the board. As Paul’s role was senior, his sacking was investigated by the Financial Services Authority, which also sided with the HBOS board. Then came the 2007-08 crash and HBOS became the subject of a £21 billion bailout.
Despite being proved right, Paul paid a heavy price for his principled position. Headhunters ignored him and he never worked in banking again. He had to cope with bouts of depression and ill health. He died last October at the age of 61. Had the board and regulators heeded his warnings, HBOS would potentially not have failed so spectacularly. In fact, HBOS was so aggressive about its lending that it created a race to the bottom for the lending market and increased the risk in the system. The true cost of its recklessness will never be known. Paul’s case shows that employers and current regulatory bodies are conflicted and cannot support or protect whistleblowers. The current legal framework also failed to support and protect Paul. We need an independent office of the whistleblower, as the Bill proposes. I very much hope that the Government will support the Bill.
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I think we all agree that regulators work hard to try to ensure that the confidentiality of whistleblowers is protected, but we know that such protection often fails because the individual has already spoken internally or is one of a few privy to the necessary information. Regulators regard what most of us would call retaliation against a whistleblower as outside their jurisdiction; indeed, I have never heard of a regulator intervening in an employment tribunal case even though this is where most employees who speak out end up. Most regulators engage with whistleblowers through a call centre staffed by people trained to handle and pacify complaints, not experts capable of spotting wrongdoing. Some regulators act with alacrity. Others pay little attention to what they regard as complaints by troubled people. Interestingly, many of them greeted with sheer relief the idea of the office of the whistleblower to sort through this complex and difficult area, provide them with clarity, help whistleblowers with tailored support and help them as regulators to get on with their jobs. That is why it is important that we ensure that the office has sufficient powers to carry out this role effectively. I am particularly keen that it has the scope to examine, consult and act on knotty and difficult problems.
Who is a whistleblower? Surely it is not just a worker, as you would assume from current law. It could be a client, a supplier, a relative or a contractor, all of whom may need support and protection.
How do you deal with retaliation when it involves a real inequality of arms? It pits little people against well-funded organisations with access to the finest legal expertise and the patience to drag out a case for years. This week in the London central tribunal, as I drafted this speech, there were three whistleblowers that I know of in hearings whose current phase of litigation was costing from £24,000 for a preliminary hearing to £145,000 for a liability hearing—just a fraction of what their final legal costs will be. Dr Raj Mattu, a whistleblower who has permitted me to use his name, was a leading cardiologist fired after he exposed tragic levels of excess deaths at Coventry hospital. He spent £1.48 million clearing his name. When he was totally cleared, he was awarded £1.22 million; he still ended up facing huge bills. If the Minister says, “Well, this is the old world. It does not happen now”, I refer him to the case of Dr Beatt, which was resolved just a year ago. He was awarded £870,000; I do not yet have permission to tell people his costs but let me just say that the pattern is consistent. These costs are prohibitive and skew the system in favour of employers and organisations. We must level this playing field to enable more people to come forward.
How do we compensate whistleblowers whose professional life is effectively ruined by the informal blacklist that follows them for life? I got a lovely email from a whistleblower who has found his career reduced from senior professional jobs—on a par with, or even senior to, many of the people in this Chamber today—and who can now only find work driving a delivery van. How do we deal with confidentiality agreements, the UK equivalent of American non-disclosure agreements, which are part of nearly every settlement agreement and mean that both politicians and the public are in the dark about both the number of whistleblowers fighting to save their careers and what, if anything, has happened to counter the wrongdoing they have exposed? Is the Public Interest Disclosure Act 1998—the key piece of legislation—capable of revision, or does its place as a narrow subset of employment law mean that more overarching legislation is needed? The answer can be found through the work of an office of the whistleblower.
One objection always raised in opposition to creating an office of the whistleblower is the cost it would take to set up and run. To that I say this: the money lost through scandals and corruption far outweighs the cost it would take to run this office. But in pounds, shillings and pence, the financial penalties from one successful prosecution of financial abuse would pay for the office for years—a good example is the £45 million fine from the Lloyds Reading fraud case.
The current chair of the APPG on Whistleblowing, Mary Robinson MP, is very supportive of the Bill, and I thank WhistleblowersUK and Protect for their support. Many MPs are now exercised by the issue and, as we come out of the pandemic, whistleblowers will be crucial in addressing waste and fraud that has occurred in the Government’s Covid programmes. That is not an attack on the Government; it is making sure that people who took advantage of those programmes are identified and dealt with.
We need quick progress to ensure a proper and effective framework for whistleblowing so that corruption and fraud can be stopped in their tracks, while ensuring that those who speak out are protected and supported. I note that just two weeks ago Paul Scully MP, a Minister for BEIS, said:
“It is right and proper that we review the whistleblowing framework”.—[Official Report, Commons, 8/6/21; col. 846.]
An independent office of the whistleblower can drive and support the change we need and ensure that we build a better, fairer society for all. I beg to move.
Abuse of whistleblowers is not confined to the financial sector. There are well-documented cases from within the NHS and the educational sector, for example. We all owe a debt to whistleblowers. They are crucial to uncovering malpractice and even sometimes saving people’s lives, as in the case of the NHS, and always help maintain the ethical standards, transparency, honesty and fair play that we require in all organisations, large and small.
But, as things stand, whistleblowers are horribly exposed. The legal protections available to them are wholly inadequate. There is no single source of help or advice. The Bill would remedy that by creating the office of the whistleblower as that source, with powers to review the whole framework. I hope the Minister will give a sympathetic and constructive response, as he usually does.
Who might fund this office? That is an important issue, but I would be grateful if my noble friend could indicate any support for the Bill.
Seventhly, measures to preserve the confidentiality of the disclosure and the whistleblower are needed. Measures are of course required to protect against reprisals against whistleblowers. The burden of proof should be on the employer.
Eighthly, there should be a statutory code of practice for workers and employers, which should extend to the procedure for whistleblowing, communication of a whistleblowing claim, confidentiality and anonymity, protection against reprisal, investigation and its timescale, feedback, hotlines, training and so on. The Bill from the noble Baroness, Lady Kramer, is a great start.
After I had fought for justice for my constituent Kim Holt for over three years, Great Ormond Street finally apologised—too little, far too late. Kim Holt was persecuted by Great Ormond Street for speaking up for the safety of children. Richard Horton, in a signed editorial in the Lancet,wrote:
“When the highly critical Sibert/Hodes Report landed on the desks of GOSH’s managers, they clearly faced a difficult dilemma. If they made the findings public, the inevitable media scrutiny might have damaged their reputation and slowed the progress of their Foundation Trust application. If they edited out GOSH’s failings, they might leave themselves open to the claim of ‘cover up’”.
They did edit out Great Ormond Street’s failings and they did cover it up. Kim Holt was just another victim of “too big to fail” but the real victim was patient safety. The need for the independent office of the whistleblower is clear. I ask your Lordships to please support this excellent Bill.