My Lords, as I said at Second Reading, the Bill is missing a crucial opportunity to introduce protections for the young people whom it is designed to support. These amendments would provide that opportunity. The importance of whistleblowing in exposing malpractice and wrongdoing and in improving the delivery of public services has been recognised by successive Governments for the past 20 years or so.
The previous Labour Government brought in the Public Interest Disclosure Act and this Government have done more, insisting that they want to protect whistleblowers further. The current Prime Minister, for example, said:
“We will always back whistleblowers when they challenge poor standards, particularly in large organisations”.—[Official Report, Commons, 26/2/14; col. 257.]
When he announced new plans for the takeover of poorly performing children’s services last year, he highlighted that one of the “sharper triggers” for this,
“could include complaints from whistle-blowers”.
But whistleblowers in local authorities still lack some crucial protections that will encourage them to make such disclosures in the public interest. These gaps in protection not only discourage individual cases of whistleblowing and damage individual whistleblowers, they inhibit the creation of an effective culture in organisations that encourages transparency. Over and over again we have seen the consequences—repeated failures in the National Health Service, police wrongdoing after the Hillsborough disaster, and the scandal of MPs’ expenses when the fees office was well aware of the scams that went on but never blew the whistle.
Large organisations that serve the public in both the public and private sectors are powerful institutions, often driven by a potent internal culture. Every case of whistleblowing challenges the powerful vested interests who so often run such organisations. As I have often said in debates on these issues, too often after a scandal has been revealed, abuses have been tackled and the guilty punished, and after all the fine words about whistleblowing have been spoken, it is all too easy for those dominant interests to revert to carrying on much as they did before. The powerful never like being challenged.
These amendments would provide extra protection for those working in public bodies providing social services or children’s services, and local authorities, in relation to looked-after children, children at risk and social workers in two ways. First, they would require the Secretary of State to issue a code of practice on whistleblowing arrangements that can be taken into account by courts and tribunals when the issue of whistleblowing arises. Secondly, they would provide protection against employment blacklisting of whistleblowers.
Amendments 127 and 137 would embed a code of practice into statute so that it would be taken into account by courts and tribunals. This was a key recommendation of the whistleblowing commission set up by the whistleblowing charity Public Concern at Work, chaired by the former appeal court judge Sir Anthony Hooper and whose members included the noble Lord, Lord Burns. The commission drafted a 15-point code of practice providing practical guidance to employers, workers and their representatives, and set out guidance for raising, handling, training and reviewing whistleblowing in the workplace. This could act as a model for these amendments. A statutory code of conduct sends out to all organisations a powerful signal about the importance that Parliament attaches to providing adequate protections for whistleblowers to help drive necessary cultural change within organisations to encourage responsible whistleblowing.
Amendments 128 and 138 would provide improved protection for whistleblowers who are job applicants. This is a critical gap in protection for whistleblowers. Unlike in other areas of discrimination law, job applicants are not considered workers under the Public Interest Disclosure Act, which provides protection where a worker secures a position and is then victimised, forced out or dismissed if the employer becomes aware of an instance of whistleblowing in a previous job role. If an individual is labelled a whistleblower, it can be very difficult for them to get work because they can find themselves blacklisted—not through a formal, centralised database but informally. The amendment would plug the loophole identified in the case of BP plc v Elstone where the Court of Appeal stated that the situation was created because the drafting of the Public Interest Disclosure Act had not considered the situation of a job applicant being victimised by raising concerns in a previous job.
Following the Francis report into the Mid Staffordshire NHS Trust, the Government finally recognised this anomaly and introduced new protections for whistleblowing job applicants—but they covered only the NHS. There is no logical reason why such protections should be so restricted. Actionable offences of sex and race discrimination are not restricted to the NHS, so why should discrimination against whistleblowers be?
The amendment addresses this anomaly for those working in public bodies, providing social services and children’s services, and local authorities, in relation to look-after children, children at risk and social workers. If the Bill is to realise its welcome objectives, it needs to encourage a culture of transparency among all those charged with delivering them. The amendments would help to do so, and I hope that the Minister will feel able to accept them.