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Mr. Hartley Booth (Finchley): While I support the Bill's principles, may I ask the Minister to address the scope under common law for widening the clauses in employment contracts to cover the concerns that have been expressed?
Mr. Taylor: In general terms, the Government's philosophy is that a contract of employment is a discreet
matter between the employer and the employee and that it should be worked out by them to their mutual satisfaction in the circumstances of the industry or area of employment in which they are engaged. I should not want the Government to intrude by gratuitously specifying terms that should be in such contracts. I would prefer the parties to the contract to work it out for themselves.
The law is not a panacea for all the ills that surround the issue. We need to create and encourage openness and dialogue within businesses, so that employees are encouraged to express their reasonable concerns in a climate in which constructive comments are welcomed. Some may ask what the Government are doing in their role as employers. Successive debates on the Nolan and Scott reports have focused attention on the civil service and its relationship with Ministers. We heard a good deal about that today.
Until recently, it might have been argued that procedures for civil servants to voice concern within Government did not command universal confidence, but the Government have recently responded to that issue. The civil service code, which was introduced on 1 January 1996, contains broad-ranging provisions whereby a civil servant can report--first within his or her Departmentand ultimately to the independent civil service commissioners--a breach of the code or a requirement to act in a way which, for that person, raises a fundamental issue of conscience.
In preparing the code, the Government's objective was to maintain and build on the consensus that greeted the original draft code that was produced by the Treasury and Civil Service Select Committee. The Government accepted the substance of all the recommendations of the Nolan committee on the code. Those were: that the code should cover wrongdoing of which a civil servant is aware although in which he is not personally involved; wider reporting of appeals by the civil service commissioners; and a confidential appeal channel that is independent of a civil servant's line management. We also accepted that the recommendations should be introduced as soon as possible.
The Government produced a revised draft in July 1995 to allow comment on the text by the civil service unions and others. This further consultation resulted in only a few minor amendments and meant that, by the end of last year, a text had been arrived at which in all substantive respects commanded near-universal approval. Given that consensus, the code is a precious asset.
The important measures in the code are followed in key areas of the public service. In themselves they provide a response to the sort of issues that were raised by Public Concern at Work, which is one of the Bill's main backers. In this respect it is worth noting what the Nolan committee said in its first report. The committee made it clear that it would not want to encourage vexatious or irresponsible complaints which undermined public confidence in institutions without due cause. It said that the best way to proceed was through development of sound internal procedures that were backed by external review.
In its submission to the Nolan committee, Public Concern at Work noted:
Those alternatives have now been provided. Therefore, a Bill that sanctions public whistleblowing is unnecessary in areas of the public service, as effective procedures have already been established for the undoubtedly preferable option of internal whistleblowing.
I shall now consider the Bill's provisions in more detail. I appreciate the great care with which the Bill was drafted, but I have several anxieties about the detail, which are more than quibbles. I cannot envisage how the Bill might be amended to meet those concerns.
First, despite what the hon. Member for Islwyn said, the Bill would impose a considerable burden on business. I heard the hon. Gentleman's argument that the Bill was intended to be deregulatory, but his explanation was not convincing.
Any statutory imposition on employers is a burden on all those who have to find out about the legislation and on those who would wish to tackle the issue in their own way. Legislation such as licensing and other statutory controls would be the appropriate response in only a tiny proportion of cases in which an individual has been hesitant about drawing attention to a worry. The majority of cases can and should be sorted out by the employer.
The Bill is all the more burdensome--to my mind, unacceptably so--because of the enormous uncertainty about its effect. In any specific case, individuals will not know whether they will be protected because they are unlikely to be experts in what the courts might consider to be the public interest. One may say that that is their concern; the Bill aims to take only a small first step and it is up to the responsible individual to be sure that he or she is acting in the public interest.
However, employers will be equally uncertain. The misconduct that the Bill might cover is very loosely drawn--in fact limitless, because the matters listed in the schedule are only examples. In what circumstances can maladministration in a private firm be a matter of public interest? If a public company's shareholders are interested, does that constitute a public interest? When does its injustice to an individual become such a matter?
A solicitor specialising in the field may know the answer, but employers, individuals and many of their advisers will not. The circumstances are crucial, and in many cases neither the employer nor the individual would know whether the protection applied until it was too late, the disclosure had been made and a court had been asked to decide.
The Bill as drafted is likely to cut across many professional rules. Its effect is to impose blanket provisions regarding, for example, the steps that a whistleblower must take to draw attention to a matter internally, but certain professions have their own rules on that matter. Auditors are an example.
There is anxiety that the Bill may permit professional advisers to disclose confidential information, not only to a proper authority, but more widely. Any regulation should have regard to the position of the different advisers in question. It is undesirable simply to cut across professional rules applying to the disclosure of confidential information, which had been worked out to suit a specific profession, by imposing different universal standards, which may well be inappropriate.
The individual's motives may be finely balanced and difficult for the courts--never mind the employer--to decide. As I read the Bill, the onus of proof on bad faith is on the employer. Other queries surround the proposed remedies.
Although the hon. Member for Islwyn optimistically hopes that the Bill, if passed, would be invoked rarely, I cannot be so sanguine. The uncertainty in its effect would be likely to lead to a considerable volume of difficult cases, and meanwhile neither employers nor individuals could be confident about where they stood. Inevitably, a proportion of cases--perhaps a large proportion, in such an uncertain area--would be found to be without foundation, putting employers to unnecessary trouble and expense.
The hon. Member for Islwyn told us of the support that the Bill has received from business. I wish to make a couple of points about that. First, we welcome employers who are prepared to meet the cost of introducing their own systems and would encourage them to do so, but we do not consider it right to impose blanket legislation on all employers, requiring those who cannot afford the burdens to bear them as well as those who can. Secondly, I invite the hon. Gentleman to examine carefully the terms in which employers have offered support. In general, I believe that he will find that they support the principle that individuals who raise matters of public interest through appropriate channels should not be penalised as a result.
As I have said, who could fail to support such a principle? That is probably why my Department has received no letters objecting to the Bill. However, when employers examine the proposed legislation in a little detail, the hon. Gentlemen may find that they will express considerable doubts and fears about the practicality of such a measure, for the reason that I have just given. The Government certainly have those doubts and it may be why, of the letters supporting the Bill sent to my Department, only one is from an employer or employers' organisation.
The Government encourage open communications and employee involvement in the workplace. That must be the key to the problems that I have identified today. We do not merely encourage open communications and employee involvement, but rather see that as an essential element in achieving and maintaining competitiveness. Involving employees makes good sense for all sorts of reasons--not simply those that we are discussing today. Companies that involve their employees and have open communications are much less likely to have problems in the areas that we are discussing.
Employers and professional bodies are increasingly recognising the benefits of having their own systems. Concerned individuals can make their worries known though a large number of existing avenues. Increasingly, the complicated and unclear provisions proposed in the Bill will be rendered redundant by more appropriate voluntary schemes.
"Rather than advocate that the whistle should be blown outside--our pre-eminent aim is that the concern should be raised internally with those accountable for the organisation . . . but as this
1 Mar 1996 : Column 1171submission seeks to show, we consider that in many areas of public life there are presently no, or no adequate, alternatives for such concerns to be raised."
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