Philippa Whitford – 2020 Speech on the Public Interest Disclosure Bill

The speech made by Philippa Whitford, the SNP MP for Central Ayrshire, in the House of Commons on 25 September 2020.

I beg to move, That the Bill be now read a Second time.

Before I start my speech, I too wish to send my and my party’s condolences to the family of the police officer who lost his life in the line of duty last night.

Bristol Royal Infirmary, Mid Staffs, Morecambe Bay, Liverpool and Gosport: as in previous debates, I recite this shocking litany of tragedies, which have become household names, to remind us all of what is at stake. In each of those scandals, there were those who tried to raise concerns and protect patients, but they were ignored and often intimidated, victimised or even dismissed. Had they been listened to, lives could have been saved.

Whistleblowing is an issue in many sectors, including financial services, as I am sure we will hear about later, but it is often the NHS and social care cases that stay in our memories, due to the terrible impact on patients and their families. The very term “whistleblower” denotes a boiling kettle—a sense of pressure and build-up, until a valve releases. In many cases, the poor working practices or patient safety issues have been going on for a long time before someone is finally driven to speak up. That is because the whistleblowing landscape before them is littered with broken careers and, indeed, broken people who tried to do the right thing.

Most businesses and organisations want to create a good external impression—to project an air of success and to attract more business. As Sir Robert Francis highlighted in the Mid Staffs inquiry, that can be a significant pressure if public services are competing for contracts in a market-based system. The temptation is to cover things up—to look good from the outside, rather than admitting a problem and trying to fix it. That immediately places the employee in conflict with their employer, who just wants the problem to go away. To redress that power imbalance, it is necessary to protect and support whistleblowers, to encourage them to step forward and raise their concerns, whether on patient safety, financial wrongdoing or environmental damage.

Chris Stephens (Glasgow South West) (SNP)

I thank my hon. Friend for bringing this Bill to the House. Does she agree that one of the important factors behind this Bill is to protect employees who engage in whistleblowing, many of whom find themselves dismissed, albeit for other reasons?

Dr Whitford

I thank my hon. Friend for that intervention. That is exactly the problem with the Public Interest Disclosure Act 1998, which falls within employment law, putting the burden on the employee to prove that they have been sacked purely for raising a concern, rather than on the employer. As I will come to later, such cases very quickly turn into, as we would say in Scotland, a complete rammy.

In the five years that I have been in this House, I have heard politicians from all parties, including the previous Health Secretary, praising whistleblowers. However, despite several debates on the topic and about the need for action, nothing has been done to provide the protection ​they need from the point at which they make a disclosure. That is the critical thing: to protect them from damage, not to allow a system to pick it up afterwards. During the covid crisis, when we were out clapping the NHS and social care workers, we heard just as many stories of intimidation of those raising concerns about PPE or staffing.

When the Public Interest Disclosure Act—or PIDA—was passed 22 years ago, it too was a private Member’s Bill. I wish to express my thanks to the Clerk of private Members’ Bills in the Public Bill Office for all his work, but I recognise that I have pulled this Bill together, so I have no problem with its being improved, changed or developed in order to make it function. This is not a party political issue; whistleblowing exists in every sector, in every nation. We should recognise the need to deal with it and try to fix it.

At the time, PIDA was hailed as world leading, but that was 22 years ago. There are now better international examples, and it is in need of a complete makeover. What are the problems with PIDA? First, whistleblowers think that it offers protection from the point at which they come forward, but it does not. It merely allows them to challenge their employer in an employment tribunal after they have suffered detriment, such as missing out on promotion, being bullied or threatened or, as in a third of cases, even losing their job. As I said, the burden of proof is on the whistleblower to prove that raising a concern is the only reason that they have been sacked, rather than on the employer to prove the opposite. It is rather unsurprising, then, that only 3% of tribunal cases are successful—there is a 97% failure rate, and that is just the ones that actually go all the way to a tribunal.

The litigation process also creates opportunities for further victimisation and intimidation, with breaches of confidentiality and threats of spiralling legal costs. Ordinary workers in most sectors simply cannot maintain the fight. The problem is that as PIDA sits within employment law, it just turns into a battle between employee and employer. The original cause for concern that made them speak up gets completely lost, rather than investigated and action taken to fix the problem. This is actually the whistleblowers’ biggest complaint. The people I met said it was not even about their detriment or protection for them, but about the fact that after everything they went through the issue was never investigated and certainly never dealt with.

Mike Wood (Dudley South) (Con)

I congratulate the hon. Lady on securing her Bill in the ballot. Does she agree—from what she is saying, she may well come on to this point—that at the heart of any effective whistleblowing system is a reliance on those investigating complaints internally being able to act independently and with neutrality to resolve the issue at an early stage, long before it gets anywhere near an external whistleblowing situation?

Dr Whitford

Absolutely; I thank the hon. Gentleman for his intervention, and I will come to some of those issues later. This issue, as has been said, is in part one of culture, of being open, of realising that it should be about learning and fixing rather than trying to shut someone up. The more that downward pressure is put ​on people—like a pressure cooker—the more that builds, and there is more and more unhappiness. The problem is that in something such as health and social care, it actually affects patients.

That is why I am proposing the Public Interest Disclosure (Protection) Bill. The key thing that I seek to achieve is to remove whistleblowing from employment law and create free-standing protection legislation. If we really value whistleblowing, it should not be tucked away in some corner. It should be something that stands by itself—that sends the message that, in whatever sector, if someone sees wrongdoing and damage, they should come forward.

Kevin Hollinrake (Thirsk and Malton) (Con)

I pledge my support on a cross-party basis, and I am delighted to associate my name with the Bill. The hon. Member talks about valuing whistleblowers. Does she agree that we should value them not only for the risk they take and the individual issues they raise, but for the wider cultural issues they raise within a system—particularly, as she says, in financial services—which allows this House to put the measures in place to clamp down on that adverse culture?

Dr Whitford

I welcome that intervention, but whistleblowing should not have to be a risk. It should be a normal part of someone’s work or their duty as a citizen to come forward and report something.

The Bill defines whistleblowing disclosures, but it also widens the definition of “relevant authorities” to include not just employers, but public authorities and regulators, as many whistleblowers report that when they have involved regulators, they have been intimidated in exactly the same way and have made no progress. It places a duty on all relevant authorities not to subject whistleblowers to any form of detriment, and indeed, to protect them from detriment, but particularly—I cannot reiterate this more strongly—to investigate the concern and take action to prevent a recurrence.

The Bill widens the list of professions in which a disclosure may be made to include those previously excluded, such as religious ministers and police officers. Let us consider the cases of child abuse that might have been prevented had priests and ministers been able to speak up, or how much earlier the families of the Hillsborough victims could have been told the truth and given closure.

The Bill also includes those who were not previously defined as employees, such as trainees, interns and volunteers. I am sure that all of us who have taken an interest in this topic are well aware of the four-year persecution of Dr Chris Day, who warned about unsafe staffing in his intensive care unit, only to be told that junior doctors were not classed as NHS employees and that he had no protection. Although that anomaly has been resolved, it highlights the traps that unsuspecting whistleblowers can fall into.

The Bill seeks to establish an independent body with statutory powers to oversee whistleblowing. I have called it a commission in the Bill, but I do not care what it is called. After his report into the deaths in Mid Staffordshire NHS Foundation Trust, Sir Robert Francis established the “freedom to speak up system”, but the national guardian is not a statutory role and the local guardians are trust employees who themselves may be put under pressure when investigating a case. That comes back to ​the point raised in an intervention earlier: there needs to be absolute objectivity and a determination to deal with an issue locally, rather than it becoming a festering sore. By contrast, the Scottish Independent National Whistleblowing Office was established as a statutory body in 2018. It published its draft standards for the NHS and social care last year.

Devolved Governments will develop whistleblower-support systems for their public services, but PIDA is the underpinning legislation for all sectors—including businesses and financial services—and it no longer serves its purpose. The commission’s duty would be to protect whistleblowers and promote the principle of whistleblowing in the public interest. Such a body would develop standards of practice for whistleblowing policies and procedures and monitor the compliance of organisations with those standards. Such standards would include how issues should be investigated, and organisations would be expected to show what action they had taken to address cases. The standards would stipulate prospective protection of the whistleblower from detriment, from the point of their making a disclosure, including by preserving their anonymity and confidentiality—many whistleblowers suddenly find themselves splattered across the local paper.

The commission would also seek to resolve cases and reduce litigation, which is wasteful of public funds and both expensive and traumatic for the whistleblower. It could provide advice to whistleblowers who do not have any other route to report an issue or who are not making progress locally. It would be able to issue redress orders to try to repair detriment suffered by a whistleblower, rather than just making financial awards, and it would include the banning of non-disclosure agreements, which whistleblowers are often intimidated into signing. When staff have been subject to deliberate detriment, there would be the ability for civil action. As in Australia, criminal charges would be available for the most egregious cases of whistleblower persecution.

There are different ways to improve the quality of a service, and whistleblowing should not be the main method of detecting poor practice, the squandering of public funds or fraud. Just as audit is critical to ensure probity in the financial sector, it is also essential to detect poor clinical practice. In Scotland, we have had regular reporting against quality improvement standards for the most common cancers for many years. In the case of my specialty, breast cancer, I was involved in leading the development of the standards almost 20 years ago. The process identifies outliers, who can then be supported to update their practice, but it also creates peer pressure to drive clinical improvement, as people know that their performance is going to be shared at a conference, openly and transparently, every single year.

It is important to normalise incident reporting and encourage a culture of routinely raising issues without the sense of conflict and pressure associated with whistleblowing. That is the aim of systems such as Datix in the NHS, through which staff record, review and seek to learn from all incidents, from minor to major, including near misses. There will, however, always be cases that cannot be detected by audit, such as alcohol or drug misuse, bullying or racism. For that, whistleblowers are essential.

For whistleblowers to speak up early and reduce harm, they must be valued, supported and protected. In the NHS, that is about patient safety, which is literally a matter of life and death.