My Lords, the power in Clause 144 is just one of a number of changes the Government are making to improve the whistleblowing framework. In particular, we are acting in this Bill to ensure that prescribed persons—mainly regulators—report annually on whistleblowing. The purpose of this is to make the existing process, which of course is provided for in the Employment Rights Act 1996, transparent and more effective. I think it is an important provision.
I know that the noble Lord, Lord Wills, is very passionate about this subject. I valued the meeting we had to discuss his very wide-ranging amendments and understand the issues around whistleblowing right across the piece. I reassure him that his desire to improve the way whistleblowing is handled is shared by this Government.
I am grateful to the noble Lord, Lord Low of Dalston, for his comments, including his emphasis on openness, which is, of course, a feature of this clause, and I commend the noble Baroness, Lady Mobarik, on her first intervention in this Committee and for a typically acute question, which I hope I will be able to answer.
This is an important debate. The Government are determined to protect and encourage whistleblowers. Indeed, I take this opportunity to congratulate the whistleblowers at Mid Staffordshire NHS in particular, but others too, on their courage—in the words of the noble Lord, Lord Young. Attitudes must change, as the noble Lord, Lord Wills, has highlighted, quoting the Prime Minister. That is why we are making a number of statutory and non-statutory changes in this Parliament to change the culture and improve and promote the whistleblowing framework. I believe that these changes, mainly outside the Bill, should be given the chance to take effect, and perhaps I can highlight them as I go through and comment on the various amendments.
I will begin, if I may, with Amendment 68. The Government agree that a code of practice and guidance for employers would help to promote the whistleblowing framework. This is why we are currently working with
key stakeholders to create improved guidance and a non-statutory code of practice. We intend to publish these before the end of this Parliament. I strongly believe that educating employers on the benefits that whistleblowing can bring to an organisation will contribute to a positive cultural change in the way whistleblowing disclosures are handled.
Until now, the Government have expected the legal framework alone to drive behavioural change by encouraging employers to embrace whistleblowing, but clearly, from the evidence that we have, not least the examples that the noble Lord presented, the law alone is not having this effect. This is why the Government are taking steps to provide detailed guidance setting out how the law should be interpreted. We will keep this under review, and if this is not bringing about the change that we expect to see, we will consider introducing a statutory code of practice.
Amendments 64 and 65 look to amend the definition of a worker to include students in the healthcare sector and job applicants. This is a good call, and I can confirm that as a result of the Government’s call for evidence of 2013, we are making a change to bring student nurses and student midwives into the scope of the whistleblowing framework. It is the Government’s intention for this to be in place by 6 April. The statutory instrument has been laid before Parliament, and I believe there is a debate in the other place on 3 February.
The Government wish to extend the definition of “worker” further to include all students within the healthcare profession, although further work must first take place to design a legislative solution that works for the different professions within this sector. The different regulators in the healthcare sector have varying arrangements for registering professionals and training people, all of which needs to be taken into account. The noble Lord, Lord Wills, encouraged us to cover all healthcare students in the scope of PIDA. I can say that the Department of Health is beginning discussions with the relevant professional bodies about this work, and I am happy to undertake to keep him informed of progress, if that would be helpful.
Amendment 65 would extend the definition of “worker” to cover job applicants as a way to prevent whistleblowers being blacklisted and struggling to find new employment. The Government agree that those who have previously blown the whistle should not be disadvantaged when seeking new employment opportunities. That is why we are in the process of identifying the most suitable solution to address this issue, but it is a complex area, and we must ensure that any legislation would not have unintended consequences, such as creating an unfair burden on employers to prove either that they did not know that a person was a previous whistleblower or, if they did, that whistleblowing was not the reason for not hiring them. These kinds of scenarios could make recruitment processes unfair, burdensome or bureaucratic, and we have to see what we can do to get around that.
We must also ensure that employers are not unfairly exposed to the risk of tribunal claims from job applicants: for example, if they had no knowledge that an unsuccessful job applicant had previously blown the whistle, but
found themselves drawn into an employment tribunal case, having been accused of causing detriment to a whistleblower.
I appreciate noble Lords’ input to suggested drafting of the legislation through this amendment, but there is work to be done to get this right and it will take time, beyond this Parliament, to reach a suitable solution. It would not be right to add this half-cooked work to a Bill designed primarily to help small business and not to introduce new burdens for employers. If this work is to get the support we need, we have to get it right.
Amendments 63 and 67 look to provide clarity to whistleblowers on gagging clauses, which I believe can be achieved without new legislation. The Government have made very clear that gagging clauses are completely unenforceable when there is a public interest concern to disclose. The new comprehensive guidance for whistleblowers, which I have mentioned, will emphasise that settlement or severance agreements do not prevent ex-employees from raising public interest disclosures. This is set out in Section 43J of the Employment Rights Act, so it is a speedy solution.
The noble Lord, Lord Wills, and I discussed the lessons of the useful report published by the NAO in 2013, which was also mentioned by the noble Lord, Lord Young. Although this confirmed, as he acknowledged, that gagging clauses do not prevent workers from raising legitimate public interest concerns, it also showed that the workplace culture, or lack of information, often leaves the worker feeling gagged. I accept that point, so the Government are introducing a number of measures aimed at changing cultural attitudes to whistleblowing. This should help to ensure that workplace environments do not leave workers feeling that they are unable to make a disclosure.
I turn to Amendment 62. The whistleblowing framework is in place to protect those who have blown the whistle: for example, the investment banker who has reported fraudulent practice in his bank or the construction worker who has exposed health and safety laws being ignored. Those who have been dismissed for any reason other than making a public interest disclosure and believe it to be unfair would need to seek redress under unfair dismissal provisions. From the research the Government carried out in 2013, through a call for evidence, this has not come up as an area for concern. Therefore, the Government consider that there is no case for this new legislation at present. However, if noble Lords feel there are issues in this area that need to be addressed, I would be keen to know, and to have examples, so that we can look at them.
Amendment 66 proposes to include “allegations” within the meaning of a disclosure of information. The Government agree with the Employment Appeal Tribunal decision in 2009, in the case of Cavendish Munro Professional Risks Management Ltd v Geduld, that the legislation should protect individuals who make a disclosure conveying information, not those who simply raise an allegation or expression of concern. For example, a worker stating simply that they had concerns that an employer did not follow health and safety laws would be making an allegation. If that same worker explained the reasons and facts—such as
a door being wedged open, putting people at risk in the event of a fire—this would meet the criteria for it to be a public interest disclosure. This is quite a small change.
Amendments 68ZA to 68ZF would provide for a whistleblowing ombudsman and set out provisions as to how this would operate. I am grateful to the noble Lord for giving the Committee the opportunity to debate this. Its purpose would be to investigate failures in dealing with whistleblowing. However, I fear that if the ombudsman were drawn into investigating all issues reported by whistleblowers, its remit would be unmanageably broad. It would potentially span all issues covered by the many regulators as well as all criminal activity that the police would investigate. The equivalent US office is huge, and given the remit this would be a major undertaking, but as the noble Lord helpfully made clear, this is a probing amendment. I also noted the concerns of the noble Lord, Lord Stoneham, about doing things speedily. This is right and relevant.
In his powerful speech on his amendments, the noble Lord, Lord Wills, set out details of the functions than an ombudsman of this nature would have and provided a good checklist. Annual reporting and best-practice guidance were on that list. As I have already said in response to the noble Baroness, Lady Mobarik, the Government are already putting these measures into effect.
However, the Government recognise that one of the main issues that people have with the whistleblowing legislation is that it is not designed to address the issue reported by the whistleblower; it is designed mainly to address the employment dispute that might arise as a result of someone blowing the whistle. The noble Lord and I discussed this.
I am glad to say that the measure in this Bill will go some way to help ensure that the issue that is reported by the whistleblower is dealt with. Clause 144 introduces a duty on regulators and professional bodies that are listed as prescribed persons to report annually on the whistleblowing disclosures made to them. I believe that this will improve transparency in the way that disclosures are handled. Of course, culture matters, too—in fact, it probably matters more than anything, as Mid Staffordshire showed us—which is why we are well advanced on our national code.
I understand the noble Lord’s concerns and appreciate the work that has gone into preparing for this discussion, which is why I have tried to respond at length. We are making progress. We need to change the culture around whistleblowing, especially in the public sector, which seems to be behind best practice externally.
We are working across government and with external stakeholders to make sure that we get our guidance on whistleblowing right. Those stakeholders include Public Concern at Work, with which I know the noble Lord has worked closely to understand the concerns of those who blow the whistle. I hope that in the circumstances the noble Lord will agree not to press his amendments.