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Dr. Wright: I had not intended to intervene, but I do not want the House to be led to misunderstand what is going on. What the hon. Gentleman describes bears no relation to the Bill. He is describing how the law of confidence has operated for the past 100 years. There is nothing different now, because there is a test of public interest in each case. All that the Bill does is to say that, when the public interest has been established, people will be protected from victimisation. All it does is to square that circle.
Mr. Stern: I am afraid that the hon. Gentleman shows in this intervention, as in his previous intervention, that he completely fails to understand my point. He refers to the complaint being in the public interest. I am saying to him and to the promoter of the Bill that there is no way of establishing whether it is in the public interest until, under the Bill, the matter is tested in the courts. The public interest--I will come on to this in more detail later--is not written in the ten commandments and it has not been established for all time and in all circumstances. It can be tested only in the courts or, under our present system, on a question of fact.
Mr. Duncan Smith: I approach the matter from a slightly different angle. The Bill changes nothing in that process. Currently, without the Bill having been enacted, it is the courts that ultimately decide. If people wish to raise a matter in public, they will do so and the courts will decide. The Bill simply takes the matter from the point at which the courts decide and says, "If it is proven, there are clear protections for individuals if they have been penalised by the company in the process of raising an objection." The Bill does not change the final process. It says, "Here is a legitimate protection once the complaint
has been proven." It also says to the company, "If you are certain that the matter is not in the public interest, stand on your certainty. That means that you have internal structures to prove it. If you do not have, be warned."
Mr. Stern: I hesitate to argue with my hon. Friend, who I believe has a background as a distinguished lawyer as well as a business man. I learned early in my business career that people who argue with lawyers lose money. Nevertheless, I challenge my hon. Friend on one point. The Bill will bring into the legal test a definition of what is in the public interest. Currently, in disputes about whistleblowing, the courts do not have a duty to do that. I suggest that, if the Bill became law in its present form or anything like it, providing an additional test for the courts of what is or what is not in the public interest would, among other things, provide a great deal of meaty work for lawyers over the next 50 years. That is not necessarily in the public interest.
Clause 2 is the core of the Bill. It defines the disclosures that are protected under the Bill and three cumulative cases are given to explain how a protected disclosure is to be defined as being in the public interest. I fear that I have doubts about all three. They all give rise to argument and not only protect the whistleblower, but give rise to additional grounds for the hard case, as defined by my hon. Friend the Member for Gosport(Mr. Viggers), to take advantage of the additional rights granted by the Bill for his or her own purpose.
Clause 2(1)(a) says that a "protected disclosure" is in the public interest where, among other reasons, the individual
That provision goes to the heart of the objection that I have described. How on earth is anyone to define with pin-point legal accuracy whether a person is acting in good faith or bad faith?
Mr. Touhig:
The test appears in the Banking Act 1987, as a precedent, and also in the Arbitration Bill, which is currently before the other place.
Mr. Stern:
I fully accept that. The Bill extends what must be a doubtful test over a far wider area. The fact that, for example, capital punishment was found necessary as a penalty for arson in Her Majesty's dockyards does not mean that the House should necessarily extend that penalty or the process of decision that led to it. To ask a court to decide what is in good or bad faith must be a weak process that cannot arrive at a certain conclusion. The House must be reluctant to extend that process, except where necessary.
The second test in clause 2 asks whether
How on earth can the courts be expected, in extended cases, to rule on an individual's belief when a disclosure was made? Beliefs often change daily. With the best of intentions, the hon. Member for Islwyn is extending the law-making process too far.
The third test in clause 2 is where the individual making a protected disclosure
I agree that that is a worthy aim, but a National Audit Office report published this morning on auditing the means test for civil legal aid procedures states that it is virtually impossible for such an effective audit to be undertaken and that the means test will inevitably allow a number of people to escape the net. Similarly, to ask the courts to inquire into whether a person has made a disclosure that is affected by the possibility of personal gain inevitably builds in a process where a significant number of people will escape the net by doing exactly what the hon. Gentleman is trying to prevent.
It has been assumed in the debate that public interest will usually be easy to define. I am a proud member of the Public Accounts Committee, which frequently considers difficult cases involving public spending where the public interest has been a factor to take into account. Part of the Committee's rationale is that it considers the extent to which the public are receiving reasonable value for money for public expenditure. It therefore considers the public interest in that respect.
From memory, I shall refer to two cases involving health authorities where the public interest was involved in the Committee's conclusions. The first involved the Committee's investigation, conducted with the help of the National Audit Office, into goings-on--I can think of no better word--at Wessex health authority. A senior health authority employee had been dismissed because, to use the words of the authority's chairman, she was too good at her job. As part of her dismissal, she was subjected to a gagging clause under which she was not allowed either to speak about her work for the health authority or--the clause went further--to seek employment elsewhere in the national health service for a significant period.
The hon. Member for Islwyn might think from that description that the public interest was against the health authority and in favour of the individual, but it was argued strongly before the Committee that it was in the NHS's interests that the lady be gagged and debarred from further employment in the health service. Despite the overall circumstances of the health authority, which has been almost universally condemned, there is still considerable disagreement about where the public interest lies. For an essential part of the Bill to rely on such a diffuse concept as the public interest is merely to create a recipe for litigation.
The second example shows an even clearer divide and involves the Committee's investigation into the affairs of West Midlands regional health authority. We found that South Birmingham health authority had been badly mismanaged over a period. As a result, it had spent considerable sums on providing services for other health authorities without the administrative ability to rebill. That was the explanation of why services had to be seriously cut in south Birmingham.
The Committee asked why the money had not been recovered from the other health authorities. It was explained that South Birmingham had not billed the other health authorities, which, in their wisdom, had chosen not
to remind it of that fact. Does the public interest lie incorrecting the management problem at South Birmingham and accepting that the money that had not been billed to the other health authorities had been lost, or does it lie, as many Committee members argued, in the other health authorities' duty to volunteer to accept a liability to pay South Birmingham and so get it out of its difficulties?
The public interest is a huge concept and the last thing we should do is place an even greater burden on the courts to define it. The courts are the last place to which we should take the public interest concept. In this morning's press, it was defined by one court as being in the public interest to release a thief and gaol the thief-taker. Our legal system is sufficiently fragile that I would be reluctant to place such further nebulous burdens on it.
Mr. Duncan Smith:
I keep saying to the people who oppose the Bill that it does not change any of that, because the courts must already consider public interest. If it is raised as an objection, they must define it. I agree that it is a difficult concept to define, but they are already doing it. The Bill simply hangs on a term that already exists and is before the courts. The Bill tells companies and organisations that they must secure in their minds through internal structures that, when someone goes beyond the internal investigative procedure, they are not acting in the public interest. If they are certain they are not, they rest on sound ground.
"is not acting in bad faith".
"a 'protected disclosure' is a public interest disclosure where the individual making it . . .
(b) believes on reasonable grounds that the information is accurate".
"(c) has not made it for the purpose of obtaining payment or personal gain".
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