My Lords, Amendment 23 is supported by my noble friends Lord Wills and Lady Dean of Thornton-le-Fylde and by a good friend to everyone on all sides of the House, the noble Lord, Lord Low of Dalston. I have been a Member of the House for less than three years and—I am sure I am not alone in saying this—I could not have had a better friend to encourage and support the things we share in common. I think I speak for people on all sides of the House in that respect.
The amendment seeks to remove the good faith test. It is essentially a tidying-up amendment which needs to be read in conjunction with the public interest test that the Government propose in Clause 15. We have tabled the amendment as a means of reducing the number of hurdles that an individual has to jump in order to succeed under the Public Interest Disclosure Act 1998, as enacted into the Employment Rights Act.
As Clause 15 stands, an individual who brings a whistleblowing claim would have to answer at least four questions. They would have to show, first, that they had made a protected disclosure under one of the categories set out in Section 43B of the Employment Rights Act, which includes information about criminal offences, environmental dangers, health and safety issues, miscarriages of justice and the breach of legal obligation.
They would have to show, secondly, that it was their reasonable belief that the protected disclosure was in the public interest and, thirdly, that they have made a qualifying disclosure, the tests of which vary according to whom the individual discloses the information. The lowest test for disclosure is where an individual raises a concern internally or with those who are legally responsible for the workplace, and the highest is where an individual raises a concern with an external body—for example, an organisation such as Greenpeace or any part of the media. Individuals need to show that they meet one of the preconditions in the Act and whether the disclosure was reasonable in the circumstances, paying attention to the seriousness concerning to whom the disclosure is made and whether there has been a breach of confidentiality. Fourthly, such individuals will have to show that they have made the disclosure in
good faith, which has been interpreted by the Court of Appeal as meaning that the predominant motive for raising concern should be in the public interest.
Individuals would need to show that they have fulfilled all the above conditions to be protected. To have an additional public interest test is simply an unnecessary further hurdle. I am sure that we could all give examples of people being deterred from blowing the whistle. One of my motivations for becoming involved in this issue many years ago was because there were seven reports of ferries sailing with their bow doors open before the “Herald of Free Enterprise” went down. A young lady who left working for an outward bound centre in Dorset raised concerns about its practices, and a number of youngsters lost their lives some time later. I often refer to the one concerning a young girl who was a student of 16. She had a job on a delicatessen counter in a major supermarket where she discovered that the manager was changing the sell-by dates on cooked meats and other things, putting public health at risk.
There are many cases, which I am sure we could all repeat, so we need not put a further barrier in the way of people blowing the whistle when something is wrong. Given that Clause 15 proposes a public interest, it would be simpler to remove the good faith test entirely. This amendment would, in effect, be a counterbalance to Clause 15. I beg to move.
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