Baroness Kramer (LD)

My Lords, I thank the Minister for holding a meeting for Peers at large, which I was able to attend. I acknowledge all the advice I have received from WhistleblowersUK, Blind Justice UK, Hillsborough Law Now and Protect. This group of amendments tackles a crucial weakness in the Bill. Put very simply, those who speak out with candour—most of us call them whistleblowers—must be safe from retaliation and be sure that credible information will be investigated. That sounds obvious and simple, but it is very far from the current reality, and the Bill does nothing significant to correct it. The current whistleblowing framework, set out in the Public Interest Disclosure Act, is hopelessly inadequate. It does not ensure investigation. Worse, public authorities and private companies, together with their legal teams, have worked out how to weaponise PIDA to silence whistleblowers. PIDA seems to offer a way for a whistleblower to make confidential disclosures, but in reality they are often easily identified and any effective protection is negated. Under PIDA, workers—and it remains, despite some expansion, a narrow definition—who speak out and become victims of retaliation can go to employment tribunal for redress but not protection. Legal support in tribunal costs as much as £30,000 just for a preliminary hearing. The employers are presumed to have acted properly, so whistleblowers must prove with hard data that their firing was related to whistleblowing. It is often impossible to access that hard data. Cases are usually dragged out for years, while the whistleblower has no job, faces informal blacklisting and loses their home and often their family. No wonder so many settle, are silenced by NDAs or simply walk away. No wonder investigations of wrongdoing languish while the focus is on destroying the whistleblower. My amendment seeks to tackle that, as do excellent amendments from the noble Lord, Lord Wills, and the noble Baroness, Lady Featherstone. I anticipate that we will consolidate on Report, but today we will underscore the seriousness and dreadful breadth of the issue. If we do not solve it, at least for public authorities, we will undermine this excellent Bill. My Amendment 6, also to Clause 2, would assert that, “a public authority or public official must not subject” a whistleblower to any detriment because of their whistleblowing. In Clause 5, my amendment would make it an offence for a person to impede, retaliate against or victimise a whistleblower for whistleblowing. After Clause 7, my amendment would void any part of an NDA that prevents a person from assisting in an investigation or inquiry. My amendment in Clause 10 tries to put some iron into the code of ethical conduct to get it to require investigation and protection from detriment. After Clause 10, my amendments would create a duty to investigate and to prevent retaliation, and, after Clause 20, I would require a review. All of those amendments I have listed—and I am not going to read them out in detail because the Committee has the Marshalled List before it—are, frankly, complete no-brainers. They would require a change in the rules and a change in mindset, with consequences if it does not happen, but they would set up no new bodies nor require reorganisation. That is the easy stuff. However, in my later amendments, I have inserted the most extensive of my proposals, to create a full public authority—an independent office of the whistleblower—and I thank the noble Lord, Lord Wills, a determined campaigner on these issues, for adding his name to that amendment. My last amendment in this group would require the office to set in place mechanisms to enable civil servants to make disclosures to an independent body outside of their department if they believe that the department has failed to investigate a disclosure properly. Let me explain the office of the whistleblower. This is designed to be a hub of expertise with spokes to the relevant public authorities, regulators and enforcement agencies for whom it sets standards, provides expert support, ensures good communication and can identify potential concerns. As a safe place to make a disclosure, it would be able to give clarity and confidence to whistleblowers. It would have the capacity for the proper triage of incoming information so that insubstantial and mischievous reports would be set aside, but credible concerns would be identified and investigated by the right body. Crucially, it would have a powerful role in taking action to prevent detriments or requiring remedy if detriment has occurred. When I talk to most regulators, they almost sigh with relief at the thought of an expert body to turn to. Enforcement agencies light up at the potential stream of key information, while whistleblowers lose much of their fear. It will never be a total panacea, but it is a game-changer for true transparency, safety for whistleblowers and active investigation. The hub structure I described is key. In the USA, there are multiple offices of the whistleblower, and I am always urged not to make the same mistake of setting up multiple offices, causing confusion and duplication. The office would not be a rival to other bodies like regulators or enforcement agencies; it would complement what they do and provide for a role that most organisations struggle to cope with. Let me take on the challenge that it would cost money. It would up front, but go to the USA and you will find that offices of the whistleblower have been so successful in bringing wrongdoing to justice that the CFTC alone since 2014 has collected more than $5.1 billion in monetary sanctions, mostly paid on to the Treasury. That includes no calculation of the benefits, including financial, of the deterrent effect, or of stopping wrongdoing before it escalates. In light of this, the Minister will understand my dismay when the ethics code in Clause 10(5) is held up as the Government’s answer. This subsection sets out what information a public authority’s ethics code must contain on whistleblowing processes. I doubt there is a single body in any public authority—or in most private bodies, for that matter—which does not already meet the requirements of this subsection and has done so for years. I understand that the Government take the view that the code of ethics will gradually, over time, change the culture to one where speaking out is safe; but I do not think that all those who fought so hard for this Bill will like the idea of waiting a decade for a gradual nudge to succeed. Speaking at Second Reading, the Minister took the position that this Bill need not do more on this issue because a broader whistleblowing framework will be consulted on by BIST. That same department, in its earlier persona, has already carried out a lengthy review, and it resulted in absolutely no action at all. A new consultation was issued today. I have only had a chance to skim it, but I can say that it has not a word either on investigation or about detriment or retaliation against whistleblowers. It opposes an office of the whistleblower, which it fails to describe in any way that anyone would recognise who read my amendment here or the Private Member’s Bill, which is more extensive. It does consult on a reward scheme for the Serious Fraud Office, which has potential but, frankly, affects very few cases. I am utterly dismayed but not surprised. It is important to understand that BIST’s stakeholders and the people it listens to are, typically, commercial businesses, not public authorities or campaigning people. Some businesses do whistleblowing well, typically by following their own procedures. They do not need any instruction from government. They do it because they think that it is important. However, the majority of commercial businesses want a scheme where they can be Goliath to a whistleblower’s David, protections are very narrow, money buys the KCs and legal giants to wear down a hapless whistleblower, and a whistleblower submits and becomes silent. I am sure that BIST’s stakeholders have made arguments to it about regulatory burden, that it is all about grievances and that it will cost too much. All these are untrue, as can be demonstrated by looking at the US and by radical changes in the EU that are now starting to yield the same kind of results that we have seen in the United States. I cannot sit down without naming Simon Andriesz. He was the whistleblower whose courageous uncovering of evidence of financial embezzlement led, in the USA, to severe financial penalties against a major international finance firm and ongoing investigations of the involvement of major public figures with Epstein. He was a British citizen and was active in the UK. In the UK, his material was, essentially, ignored. His battle for justice effectively ruined him, financially and personally. In September, he took his own life. He had been dealing with retaliation for over 10 years. I met Simon. People close to me were very engaged in trying to support him. He is far from the first whistleblower to be destroyed by the system; I have spoken to many, as has anyone else engaged around this issue. We cannot go on as we are and look the British public in the face. Protect whistleblowers. Investigate credible disclosures. It is not rocket science. It is a way to halt wrongdoing early and, above all, to deter wrongdoing. It is time to take a stand. I suggest that we use the opportunity of this Bill to do so.