Employment Bill [HL]

My Lords, Amendment No. 9 seeks to import into the employment tribunal provisions similar to those in rule 5.4C of the Civil Procedure Rules. This would provide for the release into the public domain of information and documents relating to employment tribunal claims which include a claim under the Public Interest Disclosure Act, or PIDA. I recognise the genuine concern which has given rise to the amendment tabled by my noble friend Lord Borrie and the attempt which has been made to limit the negative effects which I referred to when we discussed his amendment on the same issue in Grand Committee. Although I acknowledge the spirit of compromise to which the noble Baroness, Lady Wilcox, just referred, I feel that similar difficulties to those that were aired in Grand Committee still arise from this changed amendment. The current amendment proposes—and this is not a provision of the Civil Procedure Rules—that basic details, including names of parties, would be placed on a register and published within 28 days of the claim being received. It also seeks to import Civil Procedure Rule 5.4C, which provides that persons who are not a party to the case may obtain from the court a copy of the statement of case, although the court must consider rejecting or restricting the application if a party named on the statement of case requests it. Rule 5.4C also allows persons who are not parties to apply for permission to obtain copies of other documents from the proceedings. That might include witness statements, financial records or accounts. It would include seriously confidential information. I understand the genuine concern that has been expressed by Public Concern at Work, which campaigns on behalf of whistleblowers; that is, that the unlawful, fraudulent or dangerous behaviour that underlies genuine public interest disclosure claims should be tackled. I find that very encouraging, but I remain concerned, as do the Government, about the consequences that would follow if this amendment were implemented. We must look at the possible impact on parties whose details are published but against whom nothing has been proven. We cannot go down a road where material could be released on application which included unsubstantiated allegations. The fact that this material would be released only to non-parties who sought it does not remove the risk of unsubstantiated allegations being reported in the press, with serious consequences for the reputation of the firms concerned. As we know, the impression and perception created by the first publication in the press is always so much more effective than any retraction or statement to the contrary at a later date. That is true even when the party against whom the allegations are made has submitted a defence to the claim under the public interest disclosure legislation, because both the claim and the defence will relate to the alleged detriment to the claimant, not to the alleged underlying behaviour, be it fraud, unsafe working conditions or whatever. My right honourable friend in another place, Pat McFadden, met representatives of PCaW in February, and officials from the Department for Business, Enterprise and Regulatory Reform held a further meeting with them and representatives of the CBI and the EEF in April. All efforts have been made to understand and discuss the issues, but the fundamental objections to releasing unproven allegations into the public domain remains. Both the CBI and the EEF, while not condoning abusive or fraudulent behaviour by companies, oppose this amendment. I know my noble friend Lord Borrie was not seeking to be alarmist but he mentioned Northern Rock as one of the examples. We are all blessed with PhDs in hindsight. Given the current financial situation around the world, whether banks survive or not will depend largely on public confidence. One can just imagine some time ago there having been an enormous attack on the confidence of the whole financial system of the United Kingdom and beyond as a result of what this amendment proposes having taken root. I am very pleased that my noble friend Lady Turner recited her involvement and that of many trade unions in ensuring that whistleblowers obtained protection in the past. They have to have protection; otherwise, why would they do it? However, I am sure that noble Lords will agree that that protection brings with it a sense of responsibility. Too often, that protection is not used responsibly. If this amendment were implemented, we would find that press allegations often appeared that were detrimental to business and the employer, and which were not substantiated at that point in time—if they have been substantiated, that is an entirely different issue. I suspect that we would enter a bureaucratic and nightmare of time-delay where every application for papers would be opposed on those grounds. It is surely not in the interests of anybody if all that we are going to do is bring in another tier of delay and expense. I trust that my noble friend Lord Borrie will be prepared on that basis alone to withdraw his amendment.