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Mr. Viggers: The hon. Member shakes his head. I submit that the Bill would enable an individual who felt
threatened to claim that he would make a protected disclosure, and he would immediately become bullet-proof. Clark Kent would become Superman.
Mr. Touhig: The hon. Gentleman has misunderstood the point. An individual would not be able to go to his organisation and say that he intended to make a protected disclosure. The individual would have to raise a concern about some serious wrongdoing or malpractice with the organisation first, and give the organisation a chance to respond or correct it. Only then would the protection follow, if he or she made the concern public. The Bill contains no provision for someone to threaten to make a protected disclosure.
I ran a small company before I came to this place, and I know the difficulties that people who run companies face from employees who have all sorts of complaints, grumbles and grouses. We must ensure that procedures are in place so that people who run organisations can discover what is happening. With respect, the hon. Gentleman has quite misunderstood the main thrust of that part of the Bill.
Mr. Viggers:
I accept that I have foreshortened the procedure that the Bill envisages, but, if a disgruntled individual felt threatened in some way, he could explain to his employer the point that concerned him. When the employer, perhaps justifiably, told him that he would have no cause to expose the matter because there had been no malpractice or abuse of authority and none of the points in the schedule applied, at that point the individual would say that he proposed to make a protected disclosure.
That individual would then be protected, and he would be able to say, like a child playing in the playground, "Fainites, you can't touch me." Like the television advertisement, he would have the ring of confidence. He would be invulnerable, because he would have protected himself under the procedures in the Bill.
Mr. Touhig:
The individual would have to show that he or she was not acting in bad faith; that is clear in the Bill. The hon. Gentleman's example is clearly a question of bad faith, and, with respect, he has misunderstood the point.
Mr. Viggers:
The hon. Gentleman claims that individuals would have to prove that they were acting in good faith, but so much of the Bill is based on subjective judgments. As my hon. Friend the Member for Bristol, North-West (Mr. Stern) has pointed out, claims would remain open until they were settled by the court. An individual who felt he had been victimised could claim the protection of the Bill, and a court would have to decide whether he was justified.
Mr. Stern:
I underline my hon. Friend's point. He is right in his analysis of the Bill. If an individual, at the earliest stage, indicated that he foresaw a protected disclosure resulting from his attempt to raise the matter internally, effectively he would totally change the nature of the discussions with the company or organisation that employed him. The company would know that, if it did not accept his view of events, a protected disclosure would inevitably follow.
Mr. Viggers:
Following my hon. Friend's point, an individual could complain--I select at random from the
Individuals could complain about maladministration. What is maladministration? I might administer brilliantly, someone else maladministers--that is a subjective judgment, and the answer would have to be decided by the courts.
Mr. Duncan Smith:
I wish to turn my hon. Friend's point round, because it already happens. If somebody wishes to raise an issue about malpractice, ultimately the courts decide the point. If that individual has been dismissed or internal proceedings have been taken against him, the courts will decide whether that was right. The Bill would warn companies to ensure that they sorted such matters out internally. If a company was certain that it had no case to answer, once the employee made the matter public, the company could be confident that there was no problem. The Bill would remind companies to be certain internally, which does not happen at the moment.
Mr. Viggers:
My hon. Friend has business experience. I have never discussed with him what type of business experience he has, but it may have been in larger companies. I am seriously concerned about the burden of the Bill on smaller companies and organisations. Companies or organisation would need to take legal advice on all the issues in the Bill, and that would be a heavy burden. I do not accept my hon. Friend's proposition that such matters are effectively covered by existing legislation. Were that the case, the Bill would not be required.
Dr. Tony Wright (Cannock and Burntwood):
A number of us are trying to assist the hon. Member to understand the Bill a little better. He fundamentally misunderstands it when he says that an individual would announce that he was making a protected disclosure. Nobody would be able to announce that he was making a protected disclosure. All that person would know was that, at some point, a court--after applying the stiffest tests--would decide whether somebody had behaved properly or improperly. That is the task of the court. The hon. Gentleman misunderstands the Bill.
Mr. Viggers:
The Bill would change the rules that would apply on proof. It would prepare the ground for an individual to make a claim. The individual would be making exactly the claim that I submitted he would make. He would be submitting to the company that he would be making a protected disclosure.
I am worried about the range of people who would be able to take advantage of the Bill's provisions. Most industrial tribunals protect individuals only if they have been employed by a company for two years. I give the House a frivolous example of how briefly employment can sometimes last.
Many years ago, I spent some time with dustmen in my constituency. I was told one morning that it was not unusual, because of the vigorous nature of the work of
emptying dustbins, for an individual to turn up for work for the first time at 6 am on a Monday morning and to have vanished by 7 am. An individual may have had only a very short period of employment. Perhaps a difficult or awkward individual has joined a company with a view to causing difficulty within it. He will be protected even though he has not worked for the company for two years.
I am worried also that interim relief would be available to individuals who have put themselves in the protected position that I have described. They would be able to obtain compensation through an industrial tribunal. They would be able also to claim protection against victimisation and adverse treatment.
Finally, I am especially concerned that the burden of proof would be reversed for public bodies, which would have to show that it would not be in the public interest to disclose information. It would be easy for an employee--even a new entrant--to put a necklock on a public body, thereby causing immense inconvenience, work and cost.
Mr. Derek Fatchett (Leeds, Central):
The hon. Member for Gosport (Mr. Viggers) raised certain issues relating to compliance, which I shall take up later. First, I join my hon. Friend the Member for Stoke-on-Trent, Central (Mr. Fisher) in congratulating my hon. Friend the Member for Islwyn (Mr. Touhig) on introducing an important Bill. The way in which my hon. Friend introduced it impressed all hon. Members on both sides of the House. I congratulate him also on one further achievement--that of securing sponsors from both sides of the House. That shows the extent to which the Bill is regarded as an important measure.
I speak as a sponsor, and as someone who has been thinking about the issues raised by my hon. Friend essentially through an individual case. I shall not talk at great length about that case, because I have raised it before in the House. It would be an abuse of the House to talk about the matter again in detail.
Individual cases are important, because they stimulate Members to think about general principles. My constituency case forced me to think along those lines. I shall mention only briefly some of the facts aboutDr. Chris Chapman, who is a scientist at the Leeds general infirmary.
Before doing so, I wish to emphasise that whistleblowing is hard on the whistleblower. It is an extremely difficult psychological task. It is difficult when one's colleagues are under pressure and members of the management want to impose pressure, doubt the whistleblower's integrity and, in Dr. Chapman's case, doubt his scientific knowledge. A person in those circumstances needs to have tremendous principle and courage in raising issues.
There has been talk of a whingers' charter. As the hon. Member for Chingford (Mr. Duncan Smith) said, there is a cost to the whistleblower. In the end, Dr. Chapman did
not face a financial cost because the management of the hospital trust was persuaded to pay for his re-engagement in the national health service. Something more dear toDr. Chapman was the loss of his scientific reputation. That was dear to him because it went to his career and to something that he considered to be part of himself--his ability to express himself as a scientist with a contribution to make to the NHS. That was lost to him, and that was a real and significant price.
Why did Dr. Chapman have to pay that price? He acted as a whistleblower. As has been said, that is no outdoor sport. It is a psychological test of strength and integrity. Dr. Chapman exposed a scientific fraud in an important scientific project. It is not easy to expose immediate colleagues and to say to others, "I know that my colleagues are fiddling under the name of science." That was happening, and there were real difficulties in the process in which Dr. Chapman involved himself.
The individual constituency case taught me, that when an individual starts to expose difficulties, he often runs into difficulty with the management structure. That is not because individual managers are evil people, but because they often find the truth embarrassing. They sometimes find it much better to pretend that the bearer of the truth is responsible for the problem rather than to deal with the problem and the truth. The issue is often swept under the carpet, and the messenger is made into the troublemaker. That is what happened at the Leeds general infirmary. The management was not capable of dealing with the issue by going through the management structure.
The long-term solution to Dr. Chapman's problem has been to set up an inquiry. I thank my colleague, Lord Merlyn-Rees, who has been involved in setting up the inquiry. I thank him for the work he is doing inDr. Chapman's case. I am grateful also for the work that was undertaken by the previous chairman of the United Leeds teaching hospital trust, the late Tony Clegg. Perhaps this takes up the managerial points made by the hon. Member for Gosport.
Tony Clegg and I disagreed on many issues. He was the largest private contributor to the Conservative party. We had substantial political differences. When he saw a real and important issue, however, he had the courage to say that his management was wrong, and that it was necessary to find a procedure to deal with what was at fault. I wish to thank him for what he did. A whistleblowing Bill would have been one way of dealing with the problem that he recognised as a manager.
The general points that emerged from the Chapman affair and from other individual cases are covered by the Bill. I tried to introduce a Bill three or four years ago that was built on the Chapman experience. It had the same underpinning principles that provide the foundation for this Bill. They are the four principles to which my hon. Friend the Member for Islwyn referred. First, the whistleblower, the person at the eye of the storm, must go through internal managerial procedures. That must be right. That requirement deals with all the points that have been made about a whinger's charter.
Secondly, the whistleblower must act in good faith. That overcomes the point made by my hon. Friendthe Member for Rotherham (Mr. MacShane) in an intervention. People may feel that they have a grievance--all of us may have that feeling--but they can act in good or bad faith. The issues that the Bill would address must be raised in good faith.
Thirdly, there must be accuracy. We all receive letters about, for example, the social security office, the housing manager and other Members. We know that, very often, the letters are wildly inaccurate. We are saying that accuracy must accompany whistleblowing. There must be accuracy in what is said. My hon. Friend the Member for Islwyn has dealt with that requirement in his Bill.
My hon. Friend has provided a fourth condition, and rightly so--that the individual involved should not be selling his or her story for profit. That is a right and sensible condition to apply.
It has been suggested that whistleblowing will become a habit and a general malaise in society. I would not necessarily see it as a malaise, but general it certainly will not be. There will be only a few cases. There are appropriate circumstances in which whistleblowing can and should take place in the public interest. It is to the betterment of society as a whole that those whistleblowing cases occurred, although it would be much better for society as a whole had they not had to take place, and we had a culture in which people could express their concerns in a much more open way.
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