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House of Lords Hansard
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Prescribed Persons (Reports on Disclosures of Information) Regulations 2017
30 March 2017
Volume 782

Motion to Approve

Moved by

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That the draft Regulations laid before the House on 20 February be approved.

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My Lords, there is currently no legal obligation within the whistleblowing framework for prescribed persons to investigate a disclosure made to them. The call for evidence in 2013 identified that whistleblowers did not have the confidence that their reports of wrongdoing were being investigated. The Employment Rights Act 1996, as amended by the Public Interest Disclosure Act 1998 and subsequently, provides employment protection for workers who have blown the whistle. It protects them from detriment if they have made a “protected disclosure” when they reasonably believe the disclosure tends to show wrongdoing and is in the public interest. The legislation is intended to build openness and trust in workplaces by ensuring that workers who hold their employers to account are treated fairly. Individuals should be able to report malpractice without fear of reprisal and employers should be prepared to work with them to resolve any concerns that may arise, particularly by means of effective internal procedures.

To ensure that a worker’s employment rights are protected, they must make their disclosure either to their employer or to the relevant “prescribed person” as set out in the prescribed persons order, or others, such as a Minister of the Crown or the media. Disclosures can also be made to a legal adviser. If a worker decides to blow the whistle to a prescribed person rather than to their employer, they must choose the person or body from the prescribed person list whose remit is relevant to the wrongdoing that they are disclosing. We have kept the prescribed persons list up to date with annual reviews. This will ensure that workers who are not able to go to their employers to report wrongdoing can generally find the relevant responsible body on the prescribed persons list.

There is also comprehensive guidance to assist employers and prescribed persons in handling disclosures, including guidance for employers on creating a whistleblowing policy and a code of practice. The Government are updating the guidance for prescribed persons and will publish an updated version online by 1 April. Workers also have clear information and guidance available on who they can report wrongdoing to and guidance on how whistleblowing works in practice. This will assist workers and give them the confidence—this is the most important thing about these regulations—to come forward with genuine disclosures.

In response to the concerns raised following the call for evidence in 2013, the Government sought a way to increase confidence that disclosures from workers were indeed investigated and followed through. They sought to increase transparency in the system, which might identify which prescribed persons are not as effectively discharging their responsibilities, while respecting the importance of treating disclosures in confidence. The Government introduced a power in the Small Business, Enterprise and Employment Act 2015 to enable the Secretary of State to make regulations to require certain prescribed persons to report annually on whistleblowing disclosures. The regulations before us today are laid under that power. This approach aims to increase confidence in the actions taken by prescribed persons through greater transparency about how disclosures are handled. In turn, that will also improve consistency across different bodies in the way they respond to disclosures.

I turn now to the detail of the regulations. They require most prescribed persons to report annually on a number of details. First, a prescribed person will need to report on the number of concerns that have been raised with that body in a 12-month period which it reasonably believes are qualifying disclosures. Secondly, from those disclosures they will need to report on the numbers in which a decision to take further action was made. They will also need to provide general commentary on the action taken in response to whistleblowing disclosures and how the information from whistleblowers has impacted on the prescribed body’s activity in its relevant sector.

The regulations require prescribed persons to publish their reports online so that they are available to all or, if not online, in another place which will bring them to the public’s attention. We intend to have their reports collated and to lay them before the House. To minimise the burden on prescribed persons, the reports are not required to be separate documents. For example, they may be included in a wider annual report that a body already publishes routinely. The new measures will require prescribed persons to reflect upon what they do with whistleblowing disclosures. We envisage that this in turn will encourage greater focus on the positive impact of whistleblowing in their respective sectors.

The regulations do not apply to Members of the other House. Although they are prescribed persons so that constituents can contact them about wrongdoings at work without affecting their employment protection, they are not in quite the same position as bodies with a regulatory responsibility in relation to a particular sector or type of wrongdoing. Likewise, the regulations do not apply to Ministers of the Crown.

In conclusion, in recent years the Government have undertaken significant reforms to the whistleblowing framework, working to improve the environment for whistleblowers. This includes improved guidance for individuals, employers and prescribed persons on how whistleblowing works in practice, including a non-statutory code of practice, which we will review this year; bringing the prescribed persons list up to date, including designating MPs as prescribed persons; and delivering on the commitment to review the list annually. These regulations are an important step to ensure that workers have the confidence to report any wrongdoing and ensure greater transparency in the way disclosures are handled and taken forward. I commend the regulations to the House.

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My Lords, I am very grateful to the Minister for appearing so fresh and alert at the Dispatch Box. She certainly has the upper hand on me, given that we finished near midnight last night and we were in the same positions across the Dispatch Box. The rest of you were all sleeping soundly in your beds, but we were doing the best we could, and here we are again.

We absolutely support the regulations before us today. They come from a Bill that I was involved in and we are aware of the background, which the noble Baroness has very helpfully outlined. We want to give the regulations our full support.

I have two very small points and one slightly larger one to raise with her. I do not necessarily expect an answer today, but perhaps the noble Baroness could write to me, if she wishes. Your Lordships will be aware that I have a long-standing issue with the Government—with all Governments, in fact—for not adhering to the good practice, which I thought had support on all sides of the House, of bringing new regulations forward on set days in the year, even though they may not have a major impact, so that businesses and other persons affected by them can be aware of the fact that there will be a change. These dates are 6 April and 1 October, and they are broadly adhered to now by the Department for Business, which is good. However, I see that this one from the department with responsibility for employment is coming in on 1 April, and I think that it would not have been very difficult to defer it to 6 April. I suggest that, in future, they might think about this. Common commencement dates are important to those who have to respond to SIs. It is therefore important that we try to have a unilateral practice across government.

As for the substance of these regulations, what they do—which is terrific—is address the problem of a lack of consistency in approach and how communications from prescribed persons are circulated. What the noble Baroness said in this area is very good. However, there is one issue that would help us understand a bit more about this.

The Explanatory Memorandum helpfully reviews the consultation that was run by the Government from 1 August to 30 September 2014, and broadly this is very supportive of the proposals here, which is a good thing. However, the Explanatory Memorandum states that,

“respondents … challenged the government to ensure that reporting requirements struck a balance between transparency and confidentiality, including protecting the identities of both the worker and employer”.

I looked in the text of the statutory instrument for an expression of how that was to be brought forward in the regulations but I cannot find it. It may be that it is going to be in the memorandum or notes of guidance that will issued separately, in which case that is something we can deal with by correspondence. The only reference to this is in Regulation 5 of the SI, entitled “Content of report”. It simply says:

“The report must contain, without including any information in the report that would identify a worker who has made a disclosure of information, or an employer or other person in respect of whom a disclosure of information has been made”,

followed by the details of what it is. I do not think that quite takes the point that was raised in the consultation process about needing to be much surer that the requirements strike that balance. As I say, if the answer is that there will be details put forward in future in guidance, then obviously that can be done at a later date.

I am not a lawyer and maybe it needs a lawyer’s brain to explain my third and final point which is that the formulation of the “Extent and Territorial Applications” in this particular SI is unusual in the sense that the extent of the instrument is Great Britain and the territorial application of the instrument is Great Britain. That means, of course, Scotland, England and Wales but not Northern Ireland. Can I have an assurance from the Minister on the question of how this important issue is to be taken forward in Northern Ireland? It seems to be left uncovered by the statutory instrument. I assume that other arrangements, perhaps by the Assembly when it gets going again, will be carried forward but I would be grateful for some information on how that is going to happen. Whistleblowing is an important area. It should apply to all parts of the United Kingdom. In fact, there may be reasons why it is even more important in Northern Ireland. I look forward to hearing from the Minister on that point.

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My Lords, I thank the Minister for her detailed explanation. I am slightly fresher because I did not have a late-night assignment in this House last night and I want to try to clear up some confusion in some of the points that she made.

The Minister talked about annual reviews of the list of prescribed persons. As far as I can see, and this is reiterated within the statutory instrument that we are debating today, she was referring to the 111 prescribed persons listed in the Public Interest Disclosure (Prescribed Persons) Order 2014. That does not really tie up with the idea of an annual review, so I find that confusing. Can the Minister also explain how consistency will be maintained, assuming there are still over 100 organisations? It would be so much easier for anyone looking at this to have those 100 or so organisations actually listed in the statutory instrument rather than people having to look back to other legislation for them. As the noble Lord has just said, we are not all lawyers and it should be on the face of the statutory instrument. I find it very sad that it is not. Can the Minister say whether there is going to be any government action to compare these various bodies and how they report? For someone who is a professional it is a fact of life that whatever the regulations say, if you have numerous organisations, they will have different attitudes to how they report.

I also understand that the annual reports will not require the disclosure of any information which could identify the worker who made the disclosure—that is absolutely right. However, I query, and ask the Government to reconsider, that the same anonymity applies to the employer about whom the disclosure is made if it is then found that further action was taken. I can see that there should be anonymity for both employer and employee if there is no further action, but if the employer is found guilty—to use the word in its general sense—why should that person or organisation not be named? I hope that the Minister will be able to answer my queries.

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My Lords, I am rather glad that the noble Lord, Lord Stevenson, referenced our late hour last night, because I am not sure that I will be able to answer all the questions that have been put to me this morning. However, I will do my best to answer at least some of them.

First, on the question about 1 April, the reason for that date is the timing of the reporting period, which is 1 April to 31 March each year. The regulations do not impact on prior business, and prescribed persons whom it impacts on have been advised. I hope that that makes sense.

On Northern Ireland, bodies operating in devolved fields that are prescribed persons for the purposes of Great Britain employment law are included in the reporting duty and will be required to publish reports on their own websites. This does not affect their existing lines of accountability. I can confirm that employment law is devolved in Northern Ireland.

In response to the noble Lord, Lord Palmer, perhaps I will come back to anonymity across the board in a moment. Sorry, I am advised that it is probably better if I write to the noble Lord, Lord Palmer, with respect to whether there is anonymity for the employer if guilty.

It might be helpful, with respect to both noble Lords, if I made some reference to the question of blacklisting, which is important to this. It is important that we address the issue of whistleblowers becoming blacklisted as a result of making disclosures. The Government have taken action to deal with serious offences of blacklisting relating to trade union activity that were uncovered in the past. Among the actions taken, the Government have increased the penalty that the Information Commissioner’s Office can impose for serious breaches of the Data Protection Act 1998 to £500,000. Data protection law is undergoing reform as a result of the general data protection regulation, which takes effect from 25 May 2018. The ICO’s fining powers will substantially increase as a result.

We are also bringing forward regulations in the health service to introduce protections for job applicants who have been whistleblowers, and there is a similar power in the Children and Social Work Bill for the field of children’s social care. We think it is right that those who work with vulnerable people need to be able to report concerns about what is happening in their workplace without fear of reprisals—I think that all noble Lords in this House will know of people who have experienced exactly the situation we are determined to deal with. Importantly, if they make a protected disclosure, they should be protected themselves from being blacklisted and unable to find a new role.

We have seen limited evidence that this is a problem with regard to not protecting whistleblowers and blacklisting in other sectors of the economy. Much of the anecdotal evidence has been concentrated in one or two fields where there is legislation in progress. Any new regulation would have an impact on employers, so we need to take care that it is appropriate and proportionate to the aim that it seeks to achieve.

The Information Commissioner intends to undertake a call for evidence later this year to help develop her understanding of the underlying issues, building on the ICO’s own observations from its investigations of blacklisting complaints. I could go on, but with regard to whether the Government will introduce a new criminal sanction in employment law for the blacklisting of job applicants, most employment law is enforced through civil sanctions. However, if the ICO finds a breach, it can also issue an enforcement or information notice and non-compliance with an ICO enforcement or information notice, where this is in place, is a criminal offence.

I am conscious that I have not been able to answer all the questions. I hope noble Lords will accept that I will write to them on any other points. In recent years the Government have undertaken significant reforms to the whistleblowing framework, working to improve the environment for whistleblowers. I know that noble Lords have paid close attention to these developments and indeed have shaped them in a number of ways, for which I am grateful. I am very grateful for the full support of the noble Lord, Lord Stevenson, on what we seek to achieve here.

The duty will increase confidence in the actions taken by prescribed persons through greater transparency about how disclosures are handled—of course, the balance between transparency and anonymity is a very difficult one to strike. The measure is also intended to drive up consistency in the way prescribed persons handle whistleblowing disclosures. By making a public interest disclosure to a prescribed person, a worker will qualify for protection from detriment or dismissal from work if the individual reasonably believes that the information disclosed is substantially true and that the matter falls within the remit of the prescribed person’s responsibility.

Once prospective whistleblowers are able to see that action has been taken as a result of previous disclosures to prescribed persons, I hope—and I am sure all noble Lords will too—that more employees who have witnessed malpractice at work will have the confidence to come forward and report it to the relevant authorities. I commend these regulations to the House.

Motion agreed.