Public Interest Disclosure (Protection) Bill

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 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 there is 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, and 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 the need 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 explain later, such cases very quickly turn into, as we would say in Scotland, a complete rammy.

In the five years 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.

I congratulate the hon. Lady on securing her Bill in the ballot. Does she agree—from what she is saying, it seems that 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 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 allow 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 too 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 on 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 its 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.

It is a pleasure to follow the hon. Member for Central Ayrshire (Dr Whitford), whom I congratulate not only on 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 the Member for Thirsk and Malton (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 the Member for Weston-super-Mare (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.

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 it is exactly the case. I wonder how many MPs realise what requirements 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 on 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 can cost a million lives and cause 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 is passed, thanks to my hon. Friend the Member for Central Ayrshire (Dr Whitford), they will have that protection.

I will be brief, to let the Front-Bench spokespeople conclude.

In the parliamentary briefing for this debate, a question is 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 the Member for Cheadle (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.