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Lord McCarthy: Perhaps I may disagree with the direction taken by the noble and learned Lord. He seems to be concentrating on what might happen if a case got to court or to a tribunal. The noble and learned Lord may be right about that; I would not know; but the object of the Bill is to get things started. The object of the Bill is that if workers believe that their employers, or those acting for them, have committed a criminal offence, not complied with a legal obligation, have been
party to a miscarriage of justice, have put at risk health and safety and so on, they want to know whether they can do anything about it under an Act of Parliament. Can they now do something about it? The Bill states that they can take advice from a lawyer. We say that they should also be able to see a trade union official. But what will they be told? They will be told that, while they may have evidence, they cannot know all the details, what the employer's defence will be or whether he has certain explanations for what has happened.The worker may say that that is all he knows and ask whether he can have a go. We suggest that at that moment the person who offers advice can say to the worker that he will not be done for ignorance but for recklessness. It will require caution and care, but if there is something of which the worker is unaware he will still be protected. We fear that unless something like that is available at the beginning of the process there will not be a process at all.
Lord Haskel: I very much welcome the contribution of the noble and learned Lord, Lord Nolan, to our consideration of the Bill today, and in particular his support for it. The Bill fulfils one of the key points made in the second report of the Committee on Standards in Public Life which the noble and learned Lord chaired with distinction: the need to encourage greater openness within organisations when dealing with wrongdoing or failures. We feel that this Bill will encourage greater openness in both the public and private sectors. I also acknowledge the important work carried out by the noble and learned Lord's committee identifying the need for effective internal procedures to allow employees to raise their concerns. We believe that the Bill will encourage employers to use existing procedures or to introduce new ones where necessary to facilitate internal disclosures and the prompt resolution of problems.
Turning to the amendment, Section 43B(3) in Clause 1 excludes protection for workers where they make a disclosure that involves a criminal offence. The Bill could not possibly provide carte blanche protection for those who made disclosures that breached other statutory prohibitions on disclosures and therefore involved criminal offences. If it did, the Government could not possibly support such a measure; yet the purpose of the amendment is to provide a defence in a case where the individual did not know, and it was reasonable for him not to know, that an offence was being committed.
We believe that the amendment is both unnecessary and undesirable. In some cases lack of knowledge is already a defence against breaches of statutory prohibitions on disclosure, and one example of that is the Official Secrets Act. In such cases the amendment would assist workers. However, ignorance of the law in other cases is no excuse. The Bill must not undermine the statutory provisions that Parliament has put in place. If individuals ought to be able to disregard the law because they did not know of its existence, that should be provided in the statute itself, not just in the particular circumstances covered by this Bill. The effect of the
amendment is that employers could be prohibited from disciplining an employee who had committed a criminal offence. That cannot be right.I turn to the particular case of the hacker raised by my noble friend Lord Wedderburn. Section 43B(3) in Clause 1 excludes from protection disclosures which involve a criminal offence, but that does not mean that there must necessarily be a conviction or a criminal prosecution for the section to apply. My noble friend Lord McCarthy referred to the Bill being reasonable. I believe that if the matter went before a tribunal a high standard of proof would be required before the tribune could decide whether an offence had been committed. That would ensure a fair hearing for the employee. Nor would it be the same as finding the individual guilty of a criminal offence. But clearly it would be wrong to protect workers who had broken the law and the Bill cannot do so. Bearing that in mind, I hope that my noble friend will reconsider his amendment.
Lord Borrie: This Bill is meant to encourage any worker in any workplace who discovers a malpractice of some kind, whether it is financial, a breach of safety regulations or the commission of a criminal offence by the employer--several examples were given by me and other noble Lords during Second Reading--to disclose those matters in the public interest. It is not concerned with a worker who wishes to disclose some malpractice for his own ends, possibly to try to gain a private advantage. As the title of the Bill clearly indicates, it is concerned with the public interest. In our society and the general scheme of things because the law states that a criminal offence can be committed only when it takes place knowingly or recklessly, or where it is a strict liability offence, as my noble friend Lord Wedderburn has indicated, it is very difficult to say that the commission of a criminal offence by a discloser can nonetheless be in the public interest. That is the difficulty I face in supporting the amendment.
I am most grateful to the noble and learned Lord, Lord Nolan, not only for his support for the Bill but for his comment that, as and when a matter of this kind comes before an industrial tribunal, because a worker, having disclosed some malpractice, is victimised or dismissed, if it is faced with the argument on the part of the employer that the employee, by disclosing the malpractice, has committed a criminal offence that must be proved before that tribunal to the criminal standard; that is, beyond reasonable doubt. The case cited by the noble and learned Lord, Lord Nolan, was one decided by the former Lord Chief Justice, the noble and learned Lord, Lord Lane, who held that in disciplinary proceedings involving a solicitor, where it was alleged that a professional had committed a serious crime, the tribunal should apply the criminal standard of proof. Having in mind the situations that may arise under this Bill, the consequences for the reputation and employability of an employee who is dismissed because he is thought to have committed an offence of some kind will be no less grave than those for a professional such as a solicitor who is struck off as a result of allegations of a serious crime affecting his professional integrity. Therefore, I respectfully agree with the noble
and learned Lord, Lord Nolan. I suggest that it is safe to assume that an industrial tribunal will follow that precedent and adopt the criminal standard of proof in applying Section 43B(3).My noble friend Lord McCarthy said that that may well be the situation if the matter comes to an industrial tribunal, but he is concerned with the encouragement or discouragement at the earlier stage where an employee is considering the possibility of disclosing a malpractice, going perhaps to someone for advice on the subject and being told, "Well, there are certain provisions in the Act which will protect you if you are victimised as a result of disclosing a malpractice but not if you commit a criminal offence". But anyone, including any lawyer, with whom that is discussed will surely make the point made also by the noble and learned Lord, Lord Nolan, that the employer will not have any defence to a claim for unfair dismissal following victimisation and so on unless it can be proved to a criminal standard of proof that an offence has been committed.
I do not think I need to go into the Official Secrets Act because, although that was raised during the Second Reading debate by the noble Lord, Lord Newby, my noble friend Lord Wedderburn has appreciated that there are defences there if a prosecution is brought under that Act, whereby no offence is committed should there be reasonable cause to believe that the matter did not relate to defence or security matters, intelligence and so on.
There is a residue, if one may put it that way, of purpose to this amendment which I respect. It relates solely to strict liability offences. However, apart from the point made particularly by the noble and learned Lord, Lord Nolan, with regard to the burden of proof before any industrial tribunal, in many of the secrecy offences--of which there are several hundred involving strict liability--there is no matter of having to prove knowledge or recklessness before you can be found guilty. The freedom of information White Paper which was produced a few months ago, Cmnd. 3818, entitled Your Right to Know, points out:
- "The Government intends where appropriate that the new Act--
the freedom of information Act, as it will be--
- "should repeal or amend the many existing statutory bars to disclosure that have been identified".
If it were not for that, I would see a greater risk which the amendment would justify and would be seeking to deal with. However, I am content that many provisions are being reviewed by the Government concerning strict liability offences. One hopes that the Government will bear in mind these matters when they come to the freedom of information Act as it will eventually become, and the earlier secrecy provisions in a whole range of Acts of Parliament will disappear.
It seems to me that at the end of the day in a public interest disclosure Bill it is not appropriate to say that it is in the public interest to disclose things that are under the existing law criminal. Let us rest on the belief that many strict liability offences that currently exist perhaps should not exist and can be argued against in due course when we discuss the freedom of information Bill. I would ask the proposers of this amendment not to pursue it because it is not appropriate, in a Bill dealing
with particular matters of disclosure between employers and employees, to seek to make it appear that it is in the public interest to disclose something even though the disclosure involves something that is currently a criminal offence.1 p.m.
Lord Wedderburn of Charlton: I thank those who have made comments on our amendment and I shall try to be brief in responding. So far as the Minister is concerned, my noble friend spoke at one point about convictions, but of course this amendment is not about convictions. The problem which the noble and learned Lord and my noble friend Lord Borrie have touched upon is twofold. First, it has behind it a whole raft of sections of clauses which express the public interest in terms of what it is right or not right for the worker to disclose. We have such a complicated set of provisions on the public interest that I take it my noble friend Lord Borrie is reasonably satisfied with them as he has not put down any amendments. Therefore when it comes to the tribunal, it comes, it is true, as a civil matter but, subject to one place--I cannot find any other place in the Bill where this is so--it comes to the tribunal with the question: was this dismissal protected or was this detriment within the terms of what we will come to later on?
The tribunal, the EAT, the Court of Appeal and, if need be, the House of Lords will decide this according to the usual civil tests of probability. Of course counsel may say--my noble friend Lord McCarthy made the point--or the manager may say to the worker, "Don't you go on with this because I have got a little strict liability crime in my books that I have been told about and so you had better shut up". The employee, being on the one hand a very loyal employee and on the other hand subject to the problems of flexibility these days, says, "Oh dear". If I may say so, building a point for those to come later, that is the point at which he needs his trade union official. But many workers will say, "I had better shut up".
We must remember that the point of new Sections 43A and 43B, especially subsection (3,) is that they knock the whole procedure down into the dustbin. If you cannot pass that, you do not get to all these wonderful procedures in the remainder of the new sections. We will look in Hansard, but I am not sure that my noble friend Lord Borrie did really represent the amendment. We are not planning to have any Divisions today and this is the only chance we have of discussing this very important Bill. But the worker may not know, has no reason to know and could not with reasonable acts and omissions know that there was some element of criminality here. My noble friend Lord Borrie asked, "Do you mean to say that he did not have any of those things? Are you going to exempt him from a number of secrecy provisions?". I would say, "Yes". It is not unknown for one Bill to adapt itself to another. If the criminal argument is strict--because I believe that the public interest has to be served--he is then allowed, not necessarily to disclose, let us be clear, but he is past the first hoop and he can go on to new Sections 43B, 43C and so on.
What resistance to this amendment does is to cut him out, very likely in a situation where he most needs advice and does not have it, probably on the shop floor. After that, one wonders what will happen. However, I can see that we are not going to get any assistance on this, although I was hoping that the Government would say they are going to look at this. The whole point of a Committee stage is to be able to look at matters such as this before the later stages of a Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
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