The second reading of Dr Philippa Whitford’s Public Interest Disclosure (Protection) Bill 2019-21 took place in the House of Commons on Friday, 25 September and received cross-party support with Dr Whitford MP saying,“This is not a party political issue; whistleblowing exists in every sector, in every nation. We should recognise the need to deal with it and try to fix it.”
Protect couldn’t agree more.
Summary of key points:
Dr Whitford MP, who Protect briefed on PIDA last Autumn, when we launched our own draft whistleblowing Bill, began her speech by reminding the House of the value whistleblowers have to society. A range issues with the current legislation were aired, including:
- Whistleblowers only have rights after they have suffered
- The only way for a whistleblower to gain redress is through an employment tribunal
- There is no duty on employers or regulators to investigate whistleblowing concerns
- Whistleblowers cannot make a claim against a regulator for mistreatment
- The definitions of whistleblowing and whistleblower are absent from the legislation
Dr Whitford explained how the process of bringing a claim in an employment tribunal can itself lead whistleblowers to being intimidated and victimised by their employers. Further issues with the tribunal are the lack of legal aid for whistleblowing cases, the costs of bringing a claim (which are unrecoverable), and, as Dr Whitford states: “The burden of proof is on the whistleblower to prove that raising a concern is the only reason that they have been sacked, rather than on the employer to prove the opposite”. This is a key area of reform which is also included in Protect’s draft Bill.
The Bill proposed by Dr Whitford would seek to ensure that concerns raised by whistleblowers are addressed by the establishment of an independent body, with statutory powers to oversee whistleblowing. This body would:
“develop standards of practice for whistleblowing policies and procedures and monitor the compliance of organisations with those standards. Such standards would include how issues should be investigated, and organisations would be expected to show what action they had taken to address cases. The standards would stipulate prospective protection of the whistleblower from detriment, from the point of their making a disclosure.”
Dr Whitford explained that standards would be enforced via redress orders, with the potential for use of civil and criminal sanctions.
The Commission would also seek to normalise whistleblowing, to remove the adversarial nature that is often associated with reporting concerns and develop cultures where this practice is regarded as ‘business as usual’.
Mary Robinson MP, Chair of the APPG on Whistleblowing, followed Dr Whitford’s speech, expressing strong support amidst what has grown into a ‘clamour for reform’. Paying tribute to John Penrose MP, the UK’s Anti-Corruption Champion, Robinson referenced his foreword in the recent Housing Communities and Local Government review into fraud and corruption, stating that whistleblowers need to know they will be supported and not victimised. See Protect’s summary of the report here.
Mary Robinson MP highlighted that the governments most recent reform, the annual reporting duty for prescribed persons, has now been passed for three and a half years and is doing little to progress protection for whistleblowers. Protect agree – our blog ‘Building Confidence in the Regulatory System – or not’ explores what impact the reporting duty has had.
Anne McLaughlin MP shared her recent shock at how Sky were forcing employees to return to work in unsafe conditions in her own constituency – despite being challenged on this by Ministers. She spoke of their deep fears in speaking up:
“The employees were terrified of what might happen to them. They pleaded with me to keep their names out of it and I was happy—indeed obliged—to do that. They should not be so afraid to report what is, after all, a health and safety concern.”
Kevin Hollinrake MP spoke of the case of Sally Masterton; whose vital report had been wilfully ignored by the regulator, leading to damage to both the public interest and the individual, some of which remains unresolved.
Neal Hanvey MP drew a parallel between the experience of domestic abuse survivors and whistleblowers, pointing out that in both situations there is an imbalance of power and in some cases a similar impact on the individual, where they suffer a trauma response which remains with them permanently. Hanvey stated that this level of damage made it appropriate for the option of criminal sanctions for those who victimise whistleblowers to be made available in law.
Shadow Minister Dr Alan Whitehead MP summarised the key issues with the current law, and commended Dr Whitford for bringing forward a Bill which extends the range of concerns which can be raised, increases the scope of the legislation to include those perceived as whistleblowers and relatives of whistleblowers, and establishes civil and criminal remedies for infringements and non-compliance. Dr Whitehead affirmed:
“What I think is not in dispute is that this Bill covers light years in the distance between where we were with protection for whistleblowers in 1998 and where we should be now, and for that reason I think it deserves the support of the full House.”
Paul Scully MP and BEIS Minister referenced the National Guardian Office’s freedom to speak up index, which measures how NHS staff and trusts perceive making disclosures in their organisations, which he said showed that 180 trusts had improved their freedom to speak up index score over the past three years.
Protect were delighted to see strong cross-party support expressed for Dr Whitford’s Bill. It seems agreed that the two main issues a new law would need to address are:
- A new body to focus on ensuring concerns are addressed
- Meaningful protection for whistleblowers from the point of disclosure
With two new whistleblowing bills in Parliament the need for PIDA reform is very clear. Protect’s campaign for a better whistleblowing law will continue and we urge all parties to give this legal change the priority it needs.