Public Interest Disclosure Bill

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The Ministr of State, Department of Trade and Industry (Mr. Ian McCartney): I beg to move amendment No. 1, in page 2, leave out lines 10 to 18.

The last time that we met, Mr. Gale, was sometime in the early morning of Tuesday. You seem to be in a better humour than you were then; it was a long night for us all. With your assistance, I look forward to being able to see the Bill through Committee this morning, so that we are not required to return next week.

I congratulate the hon. Member for Aldridge-Brownhills on presenting the Bill and on the work that he has done with Public Concern at Work. He is right to say that the House has attempted several times to put the proposal on the statute book, with all-party support. By fair means and foul, it has never quite achieved it. After today's debate and the passage of the Bill through Committee, we will quickly have the legislation on the statute book, which will provide protection for some very brave people. We cannot go back and apply the legislation retrospectively, but in future those who are prepared to put themselves and their careers at risk for the public good will be protected. The Bill will be well supported by the Government.

Amendment No. 1 will lead to clearer provisions. Several consultees expressed doubts about the effect of the subsection, which relates to danger or damage to the environment or to health and safety. They have argued, and I agree with them, that it is unnecessary and could be counter-productive.

Some processes are inherently damaging or dangerous. We would not want the full protection of the law to apply to, for example, a worker who discloses that his boss smokes, drives a car, or quite legitimately manufactures hazardous chemicals. If, however, his boss smokes in a munitions factory, that might be a different matter, as might the fact that the firm pollutes a river by discharging poisonous waste into it, or that the manufacturing process cuts corners on safety, or that the disposal of dangerous chemical by-products is unregulated. Disclosures about such matters will be covered by the Bill.

10.45 am

The subsection was intended to exclude the trivial and the mundane. However, it could have deterred[Mr. Ian McCartney]people from raising issues of proper concern and led to legalism and complex case law.

The Government are satisfied that the Bill contains sufficient safeguards to ensure that workers will not be encouraged to disclosure trivial matters or concerns. Individuals must act in good faith if they are to attract protection. External disclosures are protected only if a worker acts reasonably.

Industrial tribunals will take into account what has happened and the seriousness of the matter. They are unlikely to agree that a worker has acted reasonably where a matter is trivial or if the Health and Safety Executive is satisfied that everything has been done correctly. I do not think that new section 43B(3) adds to the necessary safeguards and it could cause confusion about what is meant by "normal use" or the type of danger normally associated with it. I commend the amendment as a reasonable clarification of the proposal.

Mr. Lembit Öpik (Montgomeryshire): I just wanted to ask the Minister about one slightly contentious issue involving the environment and the grounds on which the provision could be abused until precedents are set. Does he believe that new section 43B(3) does not add value to the Bill because there are other means of setting precedents and etiquette? Does he want to remove new section 43B(3) because the normal processes of law and past precedent will be sufficient to ensure that employees will not abuse the Bill's provisions and manufacturers will not be unnecessarily exposed to disclosure?

Mr. McCartney: We are clarifying the process that an employee must follow in a reasonable and not trivial way, where a complaint is clearly substantial. The Bill as drafted leaves doubts about the process. We are providing clarity. The amendment does not affect the basic concept or original form of the new section, which gives absolute protection to a worker who reports to an agency outside the company such as the Health and Safety Executive that a serious breach of law is being covered up. The amendment adds to the protection because it clarifies what is not trivial and what is reasonable.

Amendment agreed to.

Mr. McCartney: I beg to move amendment No. 2, in page 3, line 14, at end insert "and".

The Chairman: With this we may discuss Government amendment No. 3.

Mr. McCartney: The amendments will enable prescribed bodies to make discretionary awards to public spirited workers who raise concerns with them, without jeopardising a worker's protection. New section 43L(2) allows for rewards to be made under an enactment without affecting the protection provided to a worker. For example, the Inland Revenue will be able to make payments to encourage people to come forward with information useful to it. The payment is a recognition that the individual has acted in the public interest.

Some consultees queried why bodies that are designated by the Secretary of State to have particular responsibilities should not similarly be able to offer discretionary rewards to individuals who properly bring concerns to their attention. The Bill as drafted would make it possible for a worker's protection to be jeopardised by accepting such a reward or even by the prospect of a reward being available. That is not right and could be abused.

Amendment agreed to.

Amendment made: No. 3, in page 3, leave out lines 21 to 23. [Mr. Ian McCartney.]

Mr. McCartney: I beg to move amendment No. 4, in page 3, leave out lines 24 to 27 and insert

    "(2) An order prescribing persons for the purposes of this section may specify persons or descriptions of persons, and shall specify the descriptions of matters in respect of which each person, or persons of each description, is or are prescribed."

The purpose of the amendment is to ensure that the Secretary of State can designate health and safety representatives who are recognised by their employer as having a particular health and safety role in the company. Sections 44 and 100 of the Employment Rights Act 1996 protect employees from victimisation if they raise health and safety matters and specify the circumstances in which they have occurred.

Recognised health and safety representatives, whether elected by a recognised trade union or not, should be protected when carrying out their duties. At the moment, individuals are protected only in circumstances of imminent and serious danger. If they take concerns to their representative and their employer finds out, they have no special protection. That gap was criticised when the provisions of the 1996 Act were being introduced and those consulted about the Bill drew attention to the opportunity to close that gap by designating health and safety representatives. We agreed. We need to ensure sufficient flexibility in the provisions for suitable people, such as health and safety representatives, to be designated. The amendment would achieve that and I commend it to the Committee.

Mr. Cranston: I support the amendment for the reasons given by hon. Friend the Minister. It is important that organisations should be encouraged to develop their own internal procedures whereby they can deal properly with whistleblowing; but where an employer might be abusive or corrupt, employees must be protected when they make complaints to the health and safety representatives.

Amendment agreed to.

Mr. Ian McCartney: I beg to move amendment No. 5, in page 4, line 14, at end insert

    "()whether the disclosure is made in breach of a duty of confidentiality owed by the employer to any other person,".

The amendment would ensure that tribunals take into account the damage that may occur to a third person by disclosure. The tribunal may already take that into account, but it is not obliged to do so. Own example might be that of a doctor's receptionist who disclosed medical records in good faith and in accordance with information available to her. But she could be wrong and the patient might have suffered an irreversible invasion of privacy.

Another example might arise out of a business relationship. A bank employee might disclose that one of the bank's clients appeared to be insolvent. That could be very damaging to the client, who trusted the bank's duty of confidentiality to protect him. It would certainly damage his relationship with the bank and there might be damage to the bank's wider reputation and future business. Any potential damage might be justified by the circumstances, but the amendment has neither the intention nor the effect of suggesting that a duty of confidence to a third party will override all other factors. It would merely ensure that the tribunal will take that and any damage caused into account.

Mr. Shepherd: As originally drafted, the Bill did not require tribunals to give weight to whether the information was confidential and, if so, what damage the disclosure may have caused to the third party whose confidence had been breached.

In consultations, the Minister and I agreed that any cross-reference to the law of confidence in the Bill was inappropriate for a number of reasons. First, we were keen to make the public interest in all disclosure of wrong-doing the pre-eminent factor. Secondly, we feared that it would not be sufficiently clear to employers and employees how this area of case law might apply if there were some umblicical link. Thirdly, we recognised that workers who reported a serious wrong-doing should not forfeit protection because it later transpired that that information was not in law confidential. When the courts have granted or refused an injunction to stop the disclosure of that same confidential information, the view of the Minister, with which I acquiesced, was that those decisions should be relevant, but not binding on the tribunal. As such, no reference was made to the law of confidence in the Bill.

During consultation, the point was made that there are some particularly important obligations of confidence for example, those owed by a doctor to his patient or a bank to its customer. A fear was expressed that the Bill as drafted might unwittingly permit or encourage a secretary in a doctor's surgery or a clerk in a bank to disclose a concern about malpractice or misconduct without regard to the fact that that information was subject to an important obligation of confidence owed by the employer to a third party. The amendment has been tabled simply to allay those fears. Its purpose is not to thwart protection simply because the information was subject to a routine claim of confidentiality. It covers those exceptional cases in which there is a particularly important duty of confidence, as between doctors and patients, when a worker's disclosure breaches that duty and harms the third party. In such cases, it is right that the tribunal should consider the breach and the degree of any harm that it causes in deciding whether the disclosure was reasonable.

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