My Lords, I have my name to most of these amendments. I was not able to get my name to those starting with Amendment 68ZA, which relate to the whistleblowing ombudsman, but I support those as well.
I support everything that the noble Lord, Lord Wills, has said about this group of amendments. Amendment 62, as we have heard, aims to give extra protection to
individuals who are falsely accused of blowing the whistle because the employer erroneously assumes that they were the source of the disclosure, based on a previous incident or a reputation for challenging poor behaviour or malpractice in the past. It is wrong that employers should be able to penalise people when they have simply jumped to unsubstantiated conclusions, perhaps or perhaps not based on something that happened in the past. It would be the purpose of this amendment to avoid that possibility, or at least to give those who have been damaged by employers making such unsubstantiated assumptions a remedy.
Amendments 63 and 67, as we have heard, will help to alleviate some of the misconceptions around the protection afforded to whistleblowers under Section 43J—the anti-gagging provision—which was inserted in the Employment Rights Act by the Public Interest Disclosure Act. As has been said, the legal principles on which Section 43J are based are not the problem; it is that the section could be drafted more clearly. Instead of providing an oblique defence, the new provision in the amendment would act as a shield, preventing information that may point to malpractice, wrongdoing or a health and safety risk being buried in secret settlements. Clearer wording that could be understood by an individual who is not legally trained may well break down this potential barrier for the worker and be of benefit to the employer, as their duties and obligations in this area will be rendered all the clearer.
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I also support Amendment 64, for two reasons. The first is that students are expected under their professional obligations to report concerns over patient safety. Not to do so would jeopardise their future registration, but students are not covered by the scope of the Public Interest Disclosure Act—which I shall refer to as PIDA from now on—although we expect them to act in the public interest. That seems wholly unfair. My second reason is that the law should encourage those with information of a public interest nature to pass it on to those with the authority and responsibility to act. Students are often a fresh pair of eyes going into departments and workplaces, seeing malpractice or poor practice that other members of staff may simply overlook or accept as par for the course. For those reasons, I support the amendment.
I support Amendment 65 because the loophole it seeks to close causes real hardship for those affected by unfairly denying those who blow the whistle future job opportunities. Essentially, there is little legal protection for a whistleblower within the recruitment process. Such a situation only undermines the PIDA’s policy aim of creating an open culture within workplaces. Workers who have moved on to a new job may find that they have been unfairly labelled as a troublemaker. Most employers will see whistleblowers as of benefit to their organisations. That should certainly be encouraged, but there should also be sanctions for those employers who seek to damage those who have come forward in the past.
Amendment 66 is technical, but vital if PIDA’s central policy aim is to be delivered. That aim is to encourage concerns raised to be dealt with by the organisations
themselves, which is the best way to avoid incidents spiralling out of control and reaching scandal proportions. Having a wholly artificial distinction between making a disclosure of information and merely making an allegation can lead to workers not having the confidence to ask even a simple question of their employer about a dangerous or illegal situation. The current definition would mean that a worker would not be protected if they are victimised for, for example, asking their employer whether the ferry that they are working on is allowed to sail with its bow doors open, or for simply stating that there are insufficient staff on their shift. That is entirely unsatisfactory, and the amendment would help to deal with it. I support it.
Possibly the most important of this group of amendments on whistleblowing is Amendment 67. A code of practice underpinned by law would be of great benefit to workers and employers. The simple 15-point code proposed by the whistleblowing commission will bring clarity to the worker, who will have a guide as to what is expected of their employer’s whistleblowing arrangements, while the employer will be clear on what the arrangements should be. The amendment will reinforce the good work already done by the majority of well run organisations in Britain, while giving courts and tribunals a consistent basis for applying sanctions to those who fall short of a reasonable standard.
Finally, I also support the amendment that would establish a whistleblowing ombudsman, and I look forward to hearing the Government’s response to this innovative proposal. I wholly support the creation of an ombudsman, as there appears to be a gap in accountability between a whistleblower raising a concern and the response they then get from the regulator or the employer to the public interest issue. PIDA focuses only on the victimisation of the whistleblower. That is vital, but it does not deal with how the concern is then addressed. A body such as an ombudsman would complement the Government’s measures to produce regular information from regulators on whistleblowing by holding those bodies to account. With those remarks, I support all the amendments in this group.