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Lord Newby: My Lords, I apologise to the House for being absent during the Committee stage when I probably would have spoken on the matter we are debating today. I hope that your Lordship will forgive me if I intervene at this stage. I have considerable sympathy with the principle which the noble Baroness seeks to achieve with the amendment. It seems to me that in many cases a worker, fearing that there is something amiss in the organisation for which he or she works, would go first to a trade union official. To deny explicit protection to trade union officials in those circumstances is a demerit of the Bill.
However, I am not persuaded that this is the right way to achieve what the noble Baroness is seeking. It would seem to me more appropriate simply to include trade union officials within the category of people who are designated under an order under Section 43F as being covered by the protection of the Bill. Furthermore, it was interesting to read that in Committee the noble Lord, Lord Borrie, gave as examples of the kind of person who would be covered by Section 43F representatives of the FSA or the HSE. That demonstrated the problem of excluding union officials within the category of protected people because I suspect that many workers faced with a problem would not have the faintest idea where to find the HSE or another regulatory body. The natural course for them to take would be to use the union official as an intermediary before going on to the regulatory body for the industry.
Therefore, it seems to me that it would be sensible to include designated trade union officials under the protection of the Act when passed. However, I believe that the most logical and sensible way to do that is to use the provisions of Section 43F. I shall be interested to hear whether the Minister's thinking on that issue has developed, because in Committee I believe he said that the Government would look at the matter. It seems to me to be a straightforward principle to accept and to agree now that when regulations are made under Section 43F, trade union officials will be one of the categories of people covered by those regulations.
Lord Gladwin of Clee: My Lords, I support the amendment moved by my noble friend Lady Turner. As I said in Committee, in my 35 years' experience as a trade union official, there have been many occasions on which employees have perceived something going wrong and, in good faith, they told me or one of my officials about it.
I wish to confirm my noble friend's view that it is not in our interests to publicise such information. It is our task to ensure a productive, effective relationship with employers. Therefore, to reveal some of the information to which we are privy would be entirely contrary to what we are there for and what our duty is. Therefore, I hope that the Minister will be able to tell us this morning either that he can accept the amendment or that the matter can be dealt with in the way suggested by the noble Lord, Lord Newby.
Lord Haskel: My Lords, my noble friend Lady Turner indeed keeps her promises and she has returned to this issue which she raised in Committee. I assure my noble friend that the Government object to her amendment not because they believe that trade unions are leaky vessels which should not be entrusted with disclosures but because the best way of resolving these difficult issues is through procedures established for the purpose.
Of course, we know very well that trade unions handle a great deal of confidential material. They are used to dealing with it responsibly with the employer on the basis of trust. The Government are not in any way suggesting that unions are irresponsible or untrustworthy. Indeed, they have set out their support for trade unions in the Fairness at Work White Paper which will ensure unions have a voice to be heard with the employer where employees want this. Individuals will also have the right to be accompanied by their union or a work colleague in disciplinary of grievance hearings.
However, our starting point for this Bill is to encourage co-operation between employers and employees at all levels in identifying and resolving concerns within the company. The amendment would undermine this aim, and could jeopardise the widespread support behind the Bill. It would in effect open up so-called internal disclosures, and transform them into "external" disclosures.
Trade unions can have a valuable role to play in procedures, and in many cases it will be appropriate for them to have a formal role so that disclosure to them would be covered by Section 43C(2). Unions may well seek to ensure that their role is formalised in this way. However, whether or not they do so will be a matter for them to agree with the employer.
In addition, unions can organise themselves in other ways to ensure that individuals have protection if they discuss confidential matters. I understand that at least one union has set up a "whistleblowers' legal hotline". Other unions have general inquiry points for legal advice. Disclosures made to union-based legal advisers in these ways will of course be protected under Section 43D.
In response to the point made by the noble Lord, Lord Newby, regarding the list of persons appointed by the Secretary of State, no final decision has been made about who should be prescribed. When the time comes for the order to be made, we shall consider carefully who should be included and give further thought to the representations which noble Lords have made.
The Bill has been the subject of public consultation with a large number of organisations. It is seen, rightly, as a well-balanced measure. That is why it has attracted such overwhelming support from all sides. The Government believe that it would not be right to make the significant change in the Bill which my noble friend proposes after such a broad consensus has been achieved. The Government believe that this amendment would seriously upset that balance and may jeopardise the wide support which the Bill currently attracts.
Lord Borrie: My Lords, this is an amendment to what will be Section 43C of the Employment Rights Act 1996. Therefore, it may be helpful to refer the House and my noble friend Lady Turner to the side note to that section which reads:
Subsection (b) demonstrates that the "other responsible person" refers to the person responsible for the malpractice because it is his misconduct which is in issue or because he has a legal responsibility for the malpractice.
The effect is that if the concern proves well-founded and there is concern on behalf of the public interest, the employer will, in law, be accountable for the response. Your Lordships will all recall the tragic loss of life in connection with the Zeebrugge ferry. Even though the official inquiry found that on five occasions staff had voiced concerns that the ferries were sailing with their bow doors open, the company was not liable in criminal law, as the board--known in law as the controlling heart and mind of the organisation--had not been informed on those concerns and was unaware of the resultant risk.
By contrast, when four schoolchildren were killed during a canoeing expedition at Lyme Bay, the managing director of the outward bound centre was gaoled for two years because a member of staff had written to him with a clear and graphic warning about the grave risk to life if safety standards were not dramatically and considerably improved. Unable to give good reason as to why he had ignored that warning, the managing director was the very first person in the United Kingdom to be gaoled for what is called corporate manslaughter. Therefore, what will be Section 43C of the 1996 Act signals that concerns should be raised with those who, in law, are responsible for the matter--normally the employer. However, where someone else is legally responsible, then it will be that person.
In practical terms the clause as it stands, unamended, is right to emphasise the vital role of those who are in law accountable for the conduct or practice in question. To accept my noble friend's amendment would confuse the very principle of accountability that the Bill and its supporters, including many trade unions, wish to see developed. It would suggest that it is enough simply to tell an authorised union official and that there is no need to tell the employer or the person responsible in law for the conduct or malpractice. Knowing the very genuine support of my noble friend for the Bill, which she has repeated today, I ask her to reconsider pushing ahead with the amendment.
Finally, I should like to offer my noble friend some reassurance about the role of unions. Both I and the Minister in Committee--and the Minister again today--have indicated that unions will play a major role in developing the new law. Where a union is recognised, my noble friend will know that those behind the Bill consider it almost inevitable that the union will be given an important role to play in the organisation's--that is, the employer's--own whistle-blowing procedures. If I may say so, I believe that that is accepted by my noble friend and those who sponsored her amendment in Committee.
The issue which I believe has troubled my noble friend--and continues to trouble her--is what happens when the union is not part of those procedures, no doubt because it has not been recognised. Both I and government spokesmen have assured the House that disclosures in such cases to unions are capable of protection under what will be Sections 43G and 43H.
Where a union is not part of an organisation's whistle-blowing procedure, I ask: what help can a union easily and safely offer a member who is concerned about malpractice or misconduct? I believe that the answer is a practical one, clearly catered for in the Bill. For example, the Transport Salaried Staffs' Association offers telephoned legal advice through its national legal office. As my noble friend will recognise, disclosures in such circumstances--that is, the detailed asking for and giving of advice--are fully protected under what will be Section 43D. That simple service not only protects the worker and promotes the role of the unions; it also helps preserve the public interest within the framework of the Bill.
The union itself has a collective as well as an individual role to play. I note that my noble friend Lord McCarthy said in Committee on 5th June (col. 627 of Hansard) that if the union thought that giving the kind of advice that we are discussing could compromise it in collective bargaining, perhaps the union would not give that advice. Of course, that is true, but it does not really help the situation because the union has an individual role through union officials to its members and also has a collective role. It will not be very helpful in the former if it suddenly has to stop and say, "Well, this might be relevant to something that we are engaged in as a union in collective bargaining". I suggest that the sort of telephone hotline that I mentioned to a union lawyer, whether or not he is employed internally or externally, would be the best and most helpful way forward to ensure that the whistle blower is fully protected. I hope that that practical solution is attractive to my noble friend and that it is something she will endorse and adopt. It should reassure her on the substantive point. I hope therefore that she will feel able to withdraw the amendment without any further misgivings.
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