Employment Bill [Lords]

The hon. Member for North Ayrshire and Arran (Ms Clark) made mention of 1997 and the body of law that the Government introduced to affect employment relations and so on subsequently. Indeed, I am grateful, too, to the Government, because one of their manifesto commitments during the 1997 election was to afford protection to the whistleblower. The concept of the whistleblower owes much, of course, to Members of the previous Conservative-dominated Parliament, but I am mindful that my parliamentary neighbour, the hon. Member for Cannock Chase (Dr. Wright), came up with an idea that he gave to those who are involved in Public Concern at Work, and he asked them to make proposals for legislation. Those proposals were taken up by the then Opposition, and the right hon. Member for Islwyn (Mr. Touhig) introduced a private Member's Bill, which had the support of a remarkable man who was a shadow employment Minister, the right hon. Member for Makerfield (Mr. McCartney), who helped to push very hard for the proposal. It also had all-party support, including a lot of support from Conservative Back Benchers. I learned then and subsequently that the power of the Administration, often unbeknown to Ministers, is quite something. I commend the Government's support in their manifesto for the concept of whistleblowing. I came what seemed like 140th in the private Member's Bill ballot, but the Government very generously provided all the access and support needed to try to progress the matter. Indeed, the Bill passed through this House, and I owe something to my right hon. Friend the Member for Wokingham (Mr. Redwood), the then shadow Secretary of State for Trade and Industry, for not objecting to it. I also owe a lot of gratitude to a past leader of my party, who is now showing great instincts on social justice, for supporting the Bill from the beginning. The Bill was taken through the House of Lords by another distinguished man, Lord Borrie, who worked hard with Public Concern at Work and all the people there who had made effort, raised money and tried to advance the cause. The Public Interest Disclosure Act 1998 was intended to promote responsible whistleblowing. Although it arose from a private Member's Bill, it received strong support from the Government, especially from the then Minister, the right hon. Member for Makerfield. It was backed by business, unions and regulators. Although PIDA forms part of employment legislation, the policy behind it closely follows the jurisprudence developed by the courts over the past two centuries on public interest disclosure. Accordingly, the Act provides strong protection to workers who raise concerns about wrongdoing that threatens the public interest. It provides that protection most readily when the concern is raised with the employer in good faith. It also protects disclosures made to prescribed regulatory bodies, whether or not they have been raised internally, when the concern has a substantial basis. It also protects wider disclosures, including to the police, Members of Parliament and the media, when the disclosure is reasonable and justified. Accordingly, the legislation was designed to encourage employees to raise, and employers to address, serious concerns about crime, fraud, danger, abuse and other harm to the public interest. At the time when the Act was passed, we the promoters—and, I think, most people—understood that information about claims made under the Act would be on the public record. That was important because it would help to promote openness, to discourage specious claims and to encourage an employer to deal properly with any serious concern that was raised with it. Such openness was also necessary to monitor how PIDA was operating. After PIDA's commencement, the employment tribunals service and the Department of Trade and Industry denied the charity Public Concern at Work all information about claims brought under the Act. With reluctance, the matter was put before the High Court, which found in favour of the charity in April 2000. Mr. Justice Jackson concluded:"““It is sometimes embarrassing for a party to employment tribunal proceedings to have certain details of his claim made public. On the other hand, claimants in the court suffer similar embarrassment. That is part of the price which all citizens pay in order to have the benefit of an open system of justice…It has always been the policy of the law that, so far as possible, litigation should be conducted under the public gaze and under the critical scrutiny of all who wish to report legal proceedings…The principle of open justice applies to employment tribunals with just as much force as it applies to court proceedings””." While the then DTI claimed that it would appeal the decision, it introduced, without consultation or announcement, temporary regulations to reverse the High Court ruling. It did so on the day before a summer recess, so I advise all Members in the Chamber to be very interested about what is listed on the Order Paper in the two days before the recess. Statutory instruments that come into effect within 45 or 60 days that are put down at that time may receive no parliamentary scrutiny. Although, at the time, we appealed to try to block those regulations, and the Government promised that they would be debated, they came into effect before we could debate them. Although the DTI substantially agreed to consult on whether claims under PIDA should be treated differently from those under other employment laws, the promised consultation did not take place. As part of the dispute resolution regime that is being dismantled in the Bill, regulations were extended to remove all information from the public record about employment tribunals claims. The charity Public Concern at Work forwarded a complaint through me to the parliamentary ombudsman, which finally reported in 2005. The report is perhaps the most damning that I have ever read about the conduct of officials in a Department of State. It is truly shaming. It was not published in the usual way, whereby every Member gets a copy, but put on Public Concern at Work's website. The ombudsman criticised the DTI's handling of the matter because it was never honest with the High Court or the public about why it objected to information about tribunal claims being publicly available; because it launched a costly appeal that it had no intention of pursuing so that it could overturn the High Court decision in secret through regulations; because it repeatedly misled Public Concern at Work to try to head off all public criticism; because it failed to consider the public interest or to realise that whistleblowing claims"““might involve matters of very great public interest””;" because it issued a one-sided and unfair consultation in breach of Government rules, ignoring ““powerful arguments”” for openness; and because it blocked parliamentary scrutiny by giving assurances that it failed to keep. I cannot think of anything more damning that has been said in an ombudsman's report about the conduct of a Department. As a result of it, the DTI agreed to apologise and to pay £130,000 compensation to Public Concern at Work for misleading it and wasting its time. One must ask what the damage to the public interest is. Employment tribunals statistics record that, in 2005-06, some 1,015 claims under PIDA were disposed of. Some 283 of those were disposed of after a hearing, and so, under the rules, information about those cases is on record. However, the rules mean that all information about the other 730 claims—72 per cent. of all whistleblowing claims—remain shrouded in secrecy. Other than the numerical statistics, which can be obtained only by making a specific request under freedom of information legislation, there is nothing on public record about more than 70 per cent. of whistleblowing claims. There is no information about the nature of the concern, be it a crime, danger, abuse or other wrongdoing. There is no information about who was at risk, be they consumers, passengers, patients, taxpayers, shareholders or fellow workers. There is no information about whom the concern was raised with, be that a manager, a compliance officer, the chief executive officer, the audit committee, a regulator or someone else. There is no information about the employer's response to the concern, whether it was ignored, investigated or hushed up, and whether it was claimed that it was misconceived, well founded or put right. There is also no information about the alleged reprisal, whether it was carried out by managers or colleagues, and whether it was dismissal or victimisation. That is the case even though the claims are brought in a public forum, at public expense, and under the Public Interest Disclosure Act. Other than the two parties, no one, not even a Minister, is able lawfully to find out from the employment tribunals records whether, for example, a whistleblowing claim has been brought in relation to problems of clostridium difficile or methicillin-resistant Staphylococcus aureus at a hospital, even though that issue has fuelled public and ministerial anxiety about the NHS and anxiety within it. Additionally, one cannot find out whether a claim relates to a pre-existing problem with the fuel system of the Nimrod aircraft that crashed in Afghanistan with the tragic loss of 14 servicemen. Such secrecy undermines the public interest and PIDA in two essential ways. It enables and encourages unscrupulous employers to buy off genuine whistleblowers, rather than address the underlying malpractice. The Public Interest Disclosure Act 1998 expressly encourages employees to raise whistleblowing concerns internally, so that responsible employers can deal with them properly and without delay, so it is not an imaginary problem. Contrary to Parliament's intention when it passed the Act, the current rules have created a scheme under which crime, company fraud, public dangers and tax evasion can be readily hushed up, contrary to the public interest. That secrecy damages responsible business, as it enables and encourages unscrupulous employees to bring spurious claims. A report in the Financial Times on 18 September 2007 quoted the City firm, Nomura, which warned:"““The whistleblowing legislation was designed to protect employees who, in good faith, raise legitimate concerns of wrongdoing in the workplace. Its growing use by white men as a litigation tactic when in dispute with the City employers, suggests the legislation is being abused.””" The secrecy that now exists means that it is not possible to assess whether that claim is well founded. That is the substance of the anxiety that caused the right hon. Member for Makerfield—I see that he is present—to start on a course of action to try to bring about structural change in respect of whistleblowers. I know that the Department has again been in consultation with Public Concern at Work. All I ask is that the Department gives serious consideration to any amendments tabled to do with the publication of whistleblowing cases. Part of the difficulty is that there have been so many changes of junior Ministers in the Department that the collective memory of the Government or Executive, as opposed to the Administration, is somehow lost. Many undertakings have been given, and it has been said that there was no objection in principle. The Minister for Energy should read the ombudsman's report, and people in the Department should re-read it, or read it, if they have not yet had the opportunity to do so. The problems can, and should, be corrected, and the Bill is the vehicle with which to do so.