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It is regularly alleged that the country suffers from a culture of secrecy. Many hon. Members feel that sincerely. Some would argue that the Bill is but a tiny part of a wholesale package of reform that is necessary to tackle that culture of secrecy. I know that many hon. Members support the idea of a freedom of information Act.
It is the duty of the House to protect as best it can the rights of every British citizen; that is what we are here to do. That is why, originally, I welcomed the opportunity to debate the Bill, and now I think I must welcome it.
A Bill that sets out to protect the rights of all our nation's workers, wherever they work, would enhance the safety of all the nation's people and directly strengthen business life and confidence in public life. I believe that I have convinced myself of that argument; I need time to be sure.
The Bill is about not only secrecy but trust. Can one do anything to build trust in an organisation simply by offering legal protection to employees? An organisation in which an individual feels that he must blow the whistle is an organisation in which trust is sadly lacking, and cannot work effectively. Our objective must be to build organisations that work on a basis of trust.
Mr. Malcolm Bruce (Gordon):
The hon. Gentleman makes a valid point. Does he agree that a marked strength of the Bill is the requirement that an internal route should be available before an external route is used? Is it not in the interests of senior management to ensure that such a route exists, because they carry the can if middle management do not carry out the safety instructions that are supposed to be in place, which are sometimes flouted?
Mr. Luff:
I agree entirely with the hon. Gentleman. I was slightly amused to hear the hon. Member for Cannock and Burntwood (Dr. Wright) praising British Airways in that regard. It has a robust record in encouraging its employees to discuss their concerns internally--and rightly so, as safety is crucial to an airline. I would love to know what code it had in place before it was privatised--but perhaps that is a cheap, partisan point. I suspect that the private sector motive is driving British Airways: it knows that it must be seen to be completely safe, and that is a powerful incentive for being accountable and for creating the code of conduct which the hon. Gentleman has praised.
Having listened to the debate, I accept that workers may hesitate before blowing the whistle, for fear of reprisal. However, we must remember that statutory protection exists for individuals in some circumstances, and it is correct to draw attention to it. There is protection for employees in the areas of health and safety, the assertion of statutory employment rights, and discrimination on grounds of race or sex. The Library note helpfully reminds us that section 28 and schedule 5 of the Trade Union Reform and Employment Rights Act 1993 provide a great deal of protection to whistleblowers in the specific spheres of health and safety--which is probably the area that most concerns hon. Members.
The Act gives all employees--regardless of length of service, hours of work or age--the right not to be dismissed, selected for redundancy or subject to any other detriment for a number of reasons, two of which are relevant to today's debate. The first is:
The second refers to:
The latter provision is very useful, although it is probably flawed by the use of the phrase "and imminent". Security would not have been offered to the individuals involved in a number of cases referred to this morning, because the danger could not reasonably be said to be "imminent".
I emphasise that the Act refers to people's taking action to protect themselves or other persons from danger. There is protection on the statute book, and employees who suffer detriment as a result of taking such action have the right to appeal to an industrial tribunal. If the complaint is upheld, the tribunal must award such compensation as it considers just and equitable in the circumstances, having regard to the infringement complained of and to any loss suffered by the employee. There is no limit to the amount of compensation that is payable under that provision. It is important to remind people that there is protection on the statute book for employees in that area.
The Bill seeks to take that protection one step further: if the whistleblower acts in good faith, believes that what he is saying is accurate, and is not acting for personal gain, he will get extra protection. I have come to the conclusion that that is right: clearly, anything that discourages honesty could put public safety at risk. However, some of the Bill's supporters may be exaggerating their claims. I wonder whether the dreadful disasters to which they referred would have been prevented by the legislation. I suspect that the lesser issues will be addressed really effectively.
I do not believe that the Clapham rail disaster, the Piper Alpha explosion, or the sinking of the Herald of Free Enterprise would not have occurred if the legislation had been on the statute book. That is taking the claim too far. I believe that the Bill will be useful in cases such as the earlier example of the woman who noticed that food sell-by dates were being changed in a supermarket. That is a serious issue with potentially serious health and safety consequences, and the legislation would assist in those circumstances.
Although businesses recognise the need to be accountable and to institute the best possible procedures, it is correct to say that the Bill would increase their accountability. They would have to be more careful when examining internal disclosure procedures, thus preventing problems--and perhaps disasters--from occurring. I have a reservation about the conflict that exists in this place, and in any organisation, regarding confidentiality and commercially sensitive information. The sponsors believe that the existing law on confidentiality will not be affected by the Bill, but that is not clear, and we must look at it in Committee.
Some would argue that the important thing is that the Bill would strengthen the reputation of private companies and of government. Employees who fear punishment or sense a lack of concern when raising controversial matters internally are often forced, tragically, to sacrifice their reputations--and possibly the existence of the company--by blowing the whistle externally. The introduction of a discipline on companies to improve their internal procedures is valuable, and is possibly the most attractive aspect of the Bill. The Bill will provide a system of legal and ethical checks and balances to protect the worker and the reputation of the company or public body concerned.
Who knows--perhaps this is a bad day for the lawyers of the United Kingdom, who will see a rapid diminution in lawsuits as the Bill's provisions for pre-emptive action result in the matters not going to court in the first place. I understand the argument that trust, loyalty and commitment will all be enhanced in the employer and the employee at no cost, and possibly with some saving in cost. The Bill may be a wonderful reflection of our commitment to the rights and safety of our people and to strengthening trust in business--something that matters to Members on both sides of the House and should not be overlooked.
I have three specific reservations that justify the need to take the Bill to Committee, and I shall briefly run through them. First, is there a danger that the Bill might increase the probability of employees making allegations in public that, by virtue of their selectivity, could damage the reputation of a company? Secondly, could the Bill make for worse decision-making in Government? Thirdly, I am worried about the malpractice schedule in the Bill.
On the selective reporting of alleged malpractice, we know that there are rotten apples and troublemakers in companies. It would be unfair to name them, but I have worked in companies that had such individuals. There are also companies with sincere but misguided employees who simply do not understand the issues with which a company is wrestling, either because they choose not to or because they are incapable of understanding. I am slightly worried about the test for bad faith. Perpetual troublemakers and the misguided always argue that they have acted in good faith. Is the test sufficiently robust?
The Bill offers four tests for protected disclosure: bad faith; reasonable grounds to believe the disclosure is accurate; not acting for personal gain; and taking reasonable steps to raise the matters internally. These are sensible provisions, which I support, but we need to be clearer on what the bad faith test would mean in practice, and we can discuss that in Committee.
What happens if an individual who raises a matter internally is not satisfied with the explanation he receives? What if he misunderstands the explanation offered? What if--having fulfilled all of the tests in the Bill--he goes public with an accusation, but deliberately misses out the defence that the organisation offered him?
I was quick to praise The Sun in an intervention on my hon. Friend the Member for Blaby (Mr. Robathan), but the press is not always free from blame. It tends to jump to conclusions--particularly pessimistic and negative conclusions. An unkinder person might describe it as mad journalism disease. Damage can quickly be done to an organisation's reputation, and corrective action can be difficult to take.
I can give a practical example, relating to rail safety in my constituency. The turbo trains operated by Thames Trains serving Worcester are having problems with their braking systems. No one has been injured, and the company is taking more than adequate corrective action to deal with the problem. A conductor--as we must call guards nowadays--mentioned the matter to a local journalist who was travelling on one of the trains.
Fortunately, the journalist was a responsible individual who sought an explanation from the company. He was told that the problem is that the trains offer a better ride
than the old-fashioned ones, which means that the rails and wheels are less worn. As a result, braking is more of a problem. The improvement in quality has created the braking difficulty. The company explained the circumstances in full, and described the action that it was taking to correct the problem, including driver training and the provision of sanding units to improve the adhesion between rail and wheel. I believe that I have got that technically correct, and the journalist was satisfied with the explanation.
Let us say that the problem had been a bit more complex and serious and that the conductor had not chatted to a reliable journalist on the train about it, but had raised it internally under the terms of the Bill, and met those tests. Let us say that the conductor did not accept or understand the explanation given, acted in good faith and publicly revealed only part of the information to a journalist who was up against press deadlines, which made it very difficult to check the facts, and the journalist wanted to get the story into the public domain quickly, because it was a good story. In that situation, there is a huge potential for damage and a loss of good will. I do not want that to happen, unless there are very good reasons for it.
The Bill must have built into it some protection against whistleblowing that is well meaning and in good faith, but misguided. The individual might consult internally or even say that he is partially satisfied with a company's explanation, but then change his mind and go public, so that the organisation is not prepared for his going public. That person would have met all the Bill's tests, but, in my judgment, he would have behaved irresponsibly, possibly by misunderstanding something that he was told.
We could deal with that problem. The solution I recommend to the hon. Member for Islwyn is to impose on the individual who intends to blow the whistle a duty to inform the organisation of his intention. That requirement is currently not included in the Bill. It should perhaps even go to the extent of requiring him to say when he intends to make the statement, which would enable the company to prepare its case for the defence and to respond rapidly to the allegations. If the allegations are a result of a misunderstanding, the damage would then at least be limited. Perhaps that requirement could be considered in Committee.
I am also slightly nervous about situations in which an organisation is falsely accused by an individual, not out of bad faith but through misunderstanding. The individual would quite likely be able to gain legal aid for a court action, whereas a medium or small-sized company would probably have very heavy legal costs imposed on it.
I am worried about that, and I cannot see a remedy. It may be easier for the individual to pursue his grievance than for the company to defend itself. I notice that many supporters of this measure are large companies, for which it would not be a great problem, but it may be a burden for smaller and medium-sized companies. I sincerely hope that there is a way to solve that problem.
I am aware that I am taking up a good deal of the House's time, so I shall move rapidly on to my second concern: good government. Good government always involves examining all the options, even those that are unthinkable, If we lose the ability to think the unthinkable, we diminish the quality of government, because reductio ad absurdum techniques in debate often illuminate the wisdom of a particular course of action.
I fear that leaks from Government, whether as a result of whistleblowing or for more clandestine reasons, can make the process of government extremely difficult. I have been critical in the House about the way in which one Opposition Member incited civil servants to leak to him on the subject of rail privatisation--it was shameful and wrong--because I do not believe that civil servants should be incited to leak.
"bringing to their employer's attention, by reasonable means and in the absence of a representative or committee who could do so on their behalf, a reasonable health or safety concern".
1 Mar 1996 : Column 1156
"circumstances of danger which they reasonably believed to be serious and imminent, taking or proposing to take appropriate steps to protect themselves or other persons from the danger".
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