Below is the text of the speech made by Norman Lamb, the Liberal Democrat MP for North Norfolk, in the House of Commons on 3 July 2019.
I beg to move,
That this House calls for a fundamental review of whistleblowing regulation to provide proper protection for a broader range of people.
I thank the hon. Member for Stirling (Stephen Kerr) for his support in making the application to the Backbench Business Committee and all the other MPs who supported the application. I also thank the Backbench Business Committee, the Chair of which is sitting in front of me, for enabling this incredibly important debate to take place. I want to start by telling four brief stories to illustrate why facilitating whistleblowing is so important.
I was the Minister in the then Department of Health who initiated the review led by James Jones, the former Bishop of Liverpool, of the horror of what happened at Gosport War Memorial Hospital. In his report from June last year, the very first chapter deals with the nurses who tried to speak up in 1991 about what was happening in that hospital. However, the report refers to the silencing of those nurses’ concerns and to a patronising attitude towards them, although they were trying to do the right thing. The consequence of not listening to those nurses is the extraordinary and horrifying conclusion of the report, which is that over 450 older people died following the inappropriate prescribing of opioids. These old people had gone in for rehabilitation but came out dead.
In this context, we can often be talking about life and death situations, so enabling and empowering people to speak up can literally save lives. That, at its most clear and stark, is why this matter is so important. The horrific scandal at Gosport hospital could have been stopped if those nurses have been listened to, but they were not, and that is an outrage in itself.
Scrolling forward to 2013, Dr Chris Day, a brave junior doctor working in a south London hospital, raised safety concerns about night staffing levels in an intensive care unit. It is in all our interests that brave people should speak out about safety concerns in any part of our health service, but perhaps particularly in intensive care units.
What happened to Dr Day, because he spoke out, is wholly unacceptable. He suffered a significant detriment. His whole career has been pushed off track, and his young family have been massively affected. Junior doctors in that unit were put in the invidious position of being responsible for far too many people compared with national standards, so he pursued a claim against both the trust and Health Education England. The NHS spent £700,000 of public money on defending the claim and, in large part, on attempting to deny protection to junior doctors who blow the whistle against Health Education England. Lawyers, disgustingly, were enriched.
Late last year, the tribunal that eventually heard Dr Day’s case ended early after he was threatened with a claim for substantial costs. He and his wife could not face the prospect of losing their young family’s home, so he caved in. That is surely scandalous treatment of a junior doctor. He was defeated by superior firepower. We have the grotesque spectacle of the NHS, of all organisations, deploying expensive QCs to defeat a junior doctor who raised serious and legitimate patient safety issues.
Justin Madders (Ellesmere Port and Neston) (Lab)
I pay tribute to the right hon. Gentleman’s work on Dr Chris Day’s case to get the answers we deserve on how he has been treated. Many whistleblowers face an inequality of arms at tribunals. They have often lost their job by that point, and they face a very difficult situation, with highly paid QCs running rings around them, which is often the result of employers trying to find loopholes in the law to avoid liability.
I thank the hon. Gentleman for his support in pursuing the Dr Day case, and I completely agree with the points he makes.
Sir Robert Francis, in his 2015 “Freedom to Speak Up” report, spoke about how NHS whistleblowers who had given evidence to him overwhelmingly experienced negative outcomes, and he talked of a hostile culture of fear, blame, isolation, reprisals and victimisation—in our NHS, for goodness’ sake.
Those stories continue. The impact on individuals can be devastating and profound. They can be ostracised, abused and disadvantaged in their career, with dire consequences for their mental health. One nurse who tried to expose wrongdoing said, “I would never put myself in that position again. I would rather leave.” What a damning indictment of how we treat people in our treasured and cherished public service.
Mr Andrew Mitchell (Sutton Coldfield) (Con)
The right hon. Gentleman and I have both worked on the general issue of whistleblowing. I pay tribute to his leadership on the matter, along with that of my hon. Friend the Member for Stirling (Stephen Kerr), who I hope will catch your eye later, Mr Deputy Speaker.
The right hon. Gentleman is making some very good points, and we know two things. First, we know there is strong concern across the country about how whistleblowers are being treated. We see it in the west midlands, and he is articulating the point. Secondly, we know whistleblowers help to ensure proper accountability and transparency. In my view, the work that he and others are doing on whistleblowing has not received anything like the amplification it requires.
I totally agree with the points the right hon. Gentleman makes, and he makes them well. I will come on to discuss them in a moment.
Dr Caroline Johnson (Sleaford and North Hykeham) (Con) rose—
I will give way briefly, but I am nervous about the Deputy Speaker and overstaying my welcome.
Mr Deputy Speaker (Sir Lindsay Hoyle)
Let me just reassure you on that. I hope I do not make anybody nervous.
I thank the right hon. Gentleman for giving way, as he is being most generous with his time. He said that the doctor was feeling under pressure from the overwhelming firepower and the potential to incur the NHS’s substantial costs. What support did his union, perhaps the British Medical Association or defence unions such as the Medical Defence Union or Medical Protection Society, offer him on legal costs?
Shockingly, the BMA abandoned him, and that is a story in itself, which needs exploring further. Not just in the NHS but across the economy, people are often literally on their own, faced by expensive lawyers. I speak as a former employment lawyer and I know what happens in employment tribunals. They were intended as a layman’s court, but they are anything but that these days.
The third story I want to mention is that of my constituent Mark Wright, a successful financial planner at RBS. Things started to go wrong after he raised concerns about unacceptable practices in the bank—this was before the crash. On 17 September 2008, immediately after the collapse of Lehman Brothers, an intranet statement was put up in RBS saying that the group was “well capitalised”. That was clearly an attempt to reassure staff, including staff shareholders, customers and investors that the bank was secure. Of course when the bank crashed, those staff shareholders lost a fortune, and many, including my constituent, believe that they were badly misled by that intranet statement.
Mr Wright’s mental health was destroyed as a result of trying to challenge the bank, as was his career. He made a complaint to the Financial Conduct Authority, which reported his name back to the bank, for goodness’ sake. The FCA was later criticised by the Complaints Commissioner. I pursued his complaint with the FCA and it denied knowledge of the intranet statement repeatedly to me, yet an internal FCA email has emerged, after a subject access request to the Complaints Commissioner. It was dated 14 March 2014 and it said
“the intranet notice that Mr Wright refers to was online between 17 September 2008 and January 2009… as staff used it to take reassurance that all was well which would tend to support Mr Wright’s allegations”.
That was an email within the FCA, yet we were never informed of that email or of that finding in that explosive document.
Clearly, the FCA has a copy of that intranet statement, yet it will not or cannot disclose it to us. The FCA says that the law does not allow it to do so. RBS, which is part state-owned, will not disclose it, yet clearly it is in the public interest that it should be disclosed. I believe I was misled by Andrew Bailey, the chief executive of the FCA, who told me, in effect, that Mark Wright’s allegations offered nothing that was not already in the public domain and he referred to an intranet statement by Fred Goodwin, which he said had been
“in the public domain for nearly 10 years”.
Yet the intranet statement has not ever been in the public domain. The Treasury Committee, which had looked into this, had never received a copy of it. So I was misled, and we have a regulator that is too close to the banks; that failed to protect Mr Wright’s disclosure or his identity; that, crucially appeared to fail to take the allegations about the misconduct of that bank seriously; and that cannot or will not put a crucial statement into the public domain. Let us just think about the damage caused by bankers in the run-up to the crash. Had we empowered people like Mark Wright to do the right thing, rather than destroyed them and ignored them, we might just have prevented the disgusting behaviour and greed of bankers, and we might now have seen some of those responsible for destroying our economy behind bars. As it happens, they have got away with it.
The fourth and final story is of foster carers throughout the country who are frightened to raise concerns about any behaviour from the council that they deal with. Of course, the council refers children into their care, so if a foster carer is concerned about the behaviour of a social worker and expresses concerns, that council can just stop the flow of children to them, and so their income stream—their ability to earn a living—disappears. This has a chilling effect on the willingness of any foster carer to speak out about child protection concerns, because they fear losing their livelihood.
Dr Philippa Whitford (Central Ayrshire) (SNP)
Does that not highlight how, whether in finance, the NHS or anywhere else, this happens in situations with a power differential and a hierarchy? Someone has power over someone else and can make them lose their job or lose what they love doing, so there is a constant threat.
The hon. Lady is absolutely right. We need effective legislation to redress that imbalance of power.
All the cases I have outlined highlight the value and importance of enabling people to expose wrongdoing. Effective protection for brave people who decide to speak out is first of all vital for that individual—they should be celebrated, not denigrated—but it also benefits us all if we give them protection. As the right hon. Member for Sutton Coldfield (Mr Mitchell) said earlier, this is actually an issue of good governance. It is about keeping organisations honest; protecting businesses from fraud, crime and other wrongdoing; and maintaining the highest possible standards. Good protection for those who speak out acts as a deterrent against bad behaviour; closed, secret cultures, which cover up wrongdoing and destroy those who try to speak up, deliver poor public services or cheat customers in the private sector, particularly in financial services, or lead to the toleration of bullying, sexual harassment and so on. So often, non-disclosure agreements are the final step that keeps the wrongdoing secret, slamming shut the door on proper scrutiny. Things need to change.
The question is: does the current law work? Palpably, from the examples I have given, it is clear that it does not. First, it leaves out key groups—not only foster carers—that simply are not covered by the legislation. It leaves out job applicants, volunteers and priests. Just think about the abuse of children by so many priests over the past few decades. Had priests been given the protection to speak out, perhaps we would have prevented some of that dreadful abuse. The legislation leaves out non-executive directors and trustees. It leaves out relatives and friends of the whistleblower when they are victimised because of what the whistleblower has done. It leaves out someone who is victimised by being presumed to be a whistleblower—if a company thinks that someone has spoken out, even if they have not, and does something like dismissing them, that person has no rights under the legislation because they are not actually the whistleblower. That is a ludicrous situation.
Ann Clwyd (Cynon Valley) (Lab)
I am grateful to the right hon. Gentleman for giving way and am sorry that I was not here at the start of the debate. Some time ago—I think when the right hon. Gentleman was at the Department of Health—I was the co-author of a review of the NHS hospitals complaints system. One reason why we were not more forceful on the point he is making was that we thought legislation was in the pipeline, or that there was an attempt to put things right for potential whistleblowers.
I am still concerned. In my own local authority area, Rhondda Cynon Taf, the Cwm Taf health authority has just been heavily criticised for maternity deaths. One of the people involved got in touch with me anonymously. I did not know what to do with the letter—I did not want to pass it to the authorities—so I passed it to the Royal College of Obstetricians and Gynaecologists, which was at that time completing a report on the Cwm Taf health authority. It is still a major problem and people are afraid. Even when they think there is greater understanding and leeway, people are afraid. We have to put that right.
I totally agree with the right hon. Lady. Sir Robert Francis, who did the report in 2015, recommended the introduction of “freedom to speak up champions” in the NHS, and that has happened. However, this is an administrative process within trusts that, I am afraid, simply has not worked—that is the brutal lesson that we have to learn.
For those who are covered by the legislation, the law does nothing to enable a concerned person to speak up in the first place. For example, the law is silent on standards expected from employers, and it offers only inadequate protection after the event—after the person has been destroyed by a cruel organisation. The individual who then tries to pursue their rights under the legislation is too often faced by highly paid lawyers and is pressured into non-disclosure agreements, which, as I indicated, can result in wrongdoing never being exposed. Indeed, we know that the terms of some non-disclosure agreements are unlawful because they seek to shut up the individual and to stop them speaking out, even when a crime is involved.
Only a tiny percentage of cases that are pursued to the tribunal actually end up with a decision of the tribunal. To succeed, someone must show that the reason—or, if there is more than one reason, that the principal reason—for a dismissal is that the employee made a protected disclosure. They therefore open themselves up to false claims that other reasons existed. If the tribunal decides that there were other reasons, either the person’s claim is dismissed or their compensation is reduced.
There is no full definition of the range of disclosures that are covered by the legislation, so the protection is completely uncertain. Disclosure has to be to a prescribed person, but what happens if someone does not know who to report their concerns to? They could easily find themselves entirely unprotected—for trying to do the right thing.
Will the right hon. Gentleman give way?
I am conscious that I am trying the patience of the Deputy Speaker, and I need to get to the conclusion of my remarks.
The brilliant organisation Protect highlights the fact that a number of laws, such as in the utility sector, make it an offence to disclose certain information and include no public interest defence exceptions for whistleblowing. Even if there is awful wrongdoing, the person is prevented from speaking out, because they would commit a criminal offence. That surely has to change.
The brutal truth is that brave people who do society a service by exposing wrongdoing are not adequately protected, and many have no protection at all. After Gosport, I met the Prime Minister and made the case for reform. I explained to her that these are life or death situations in many cases. I have heard nothing from the Prime Minister at all since then, and that was last summer. It is time for a fundamental review by the Government and for new legislation. Such a review needs to listen to all the interested parties—to the all-party group on whistleblowing, to Protect and to Compassion in Care, which has set out proposals as part of what it calls Edna’s law. All must be involved, and we must look at international best practice.
The all-party group has a report due out soon. It follows a comprehensive survey, which included getting the views of very many people who have tried to whistleblow, and it will offer vital evidence to the Government. It will propose an office for the whistleblower, which could be of extremely powerful value in supporting people and would be a centre of excellence, providing guidelines to employers, monitoring activities and providing support, advice and training to members of the public, public institutions, private sector bodies and so on. It is a very important proposal.
I want a commitment from the Minister to undertake a thorough review, because it is long overdue. I also want a commitment to ensure that if the UK leaves the EU, it will at least meet the standards of the proposed new EU directive and preferably go much further. The UK was a pioneer, but the legislation is flawed and inadequate. New legislation to deliver high standards of governance in the public and private sectors is long overdue. We need safe space for brave people to do the right thing; effective mechanisms to hold people to account for wrongdoing that is uncovered, including potential criminal sanctions; and effective compensation and support for those who suffer as a result of speaking out.