HC Deb 11 February 2004 vol 417 cc462-8WH 4.13 pm
Ross Cranston (Dudley, North) (Lab)

First, I must declare my interest as a member of the council, and formerly a chairman, of the charity Public Concern at Work. It gave me great satisfaction that, within weeks of the 1997 election, the charity was able to promote with the Government the Bill, introduced by the hon. Member for Aldridge-Brownhills (Mr. Shepherd), that became the Public Interest Disclosure Act 1998. That legislation has been in force for four and a half years, and appears to be working well. It has become an international benchmark, while at home it is one of the few employment law measures of the past 15 years that has not been criticised by either business or unions.

The essential change that that legislation secured is that, where there is a danger of threat to the public interest in the workplace, employees can now be assured that the law will stand by them and provide a safe alternative to silence should they speak up for the interests of others. In order to strengthen organisational accountability, the law encourages the employee to raise the concern internally first, if that is practicable. The Act also protects disclosures to regulators and the wider public. It does that by providing that if employees are sacked or victimised by the employer for public interest whistleblowing, they will be fully compensated for any losses.

One consequence of that legislative framework is that, if employees are victimised or sacked for internal whistleblowing and then settle their employment tribunal claims, the danger or threat to the public interest will remain concealed unless they decide to disclose that the information or their claim is on the public record, which was Parliament's intention when it passed the 1998 Act.

Three current examples of such a threat will suffice to illustrate the importance of the PIDA legislation. First, someone victimised because they warn an employer about the dangers facing migrant workers engaged to gather cockles at Morecambe bay. Secondly, someone forced out for questioning an employer about the validity of the statistical approach used in legal proceedings to assess the risks of cot death. Thirdly, someone sacked for challenging the way that a major insurance company has misled investors about the strength of its assets by understating the impact of the guaranteed annuities that it provides.

Let us say that in each of those cases an employee brings a case under PIDA. If the employer settles the claim, there is a suggestion that information about the wrongdoing would be confidential and the claim would be kept out of the public domain. The suggestion is that that should be the case even though the claim is brought under the Act in a public forum at public expense and relates to a danger to the public. If that were the case, the only way for that information to reach a regulator or those at risk would be if the now ex-employee made a further disclosure after settling the claim. That places too heavy a burden on an employee who has already lost their job through raising the matter. It does not make sense that advancing the public interest should be delegated to a private citizen.

Let me recount some history. In 2000, the Employment Tribunals Service refused to give access to any information in PIDA claims. It maintained that such access would assist the activities of ambulance chasers that made unsolicited approaches to parties. That was despite the Department of Trade and Industry's accepting that, for example, Public Concern at Work had a legitimate right to information about PIDA claims, especially the perceived wrongdoing, the person to whom the concern was disclosed, and the reprisal that the employee claimed to have suffered. That organisation rightly argued that it needed that information to monitor how the Act worked and to advise employers and employees accordingly.

Public Concern at Work sought judicial review of the decision and the High Court ruled that it was entitled, under the then rules, to know the gist of whistleblowing claims brought under the Act. Addressing the issue of public interest, the conclusions that Mr. Justice Jackson reached were: (1) There are respectable and conflicting arguments as to whether the disclosure of details of claims initiated in employment tribunals is in the public interest. The policy arguments are not so overwhelming in either direction that I should strive to avoid what appears to be the natural meaning of the regulations.

(2) It is sometimes embarrassing for a party to employment tribunal proceedings to have certain details of his claim made public. On the other hand, claimants in the court suffer similar embarrassment. That is part of the price which all citizens pay in order to have the benefit of an open system of justice.

(3) It has always been the policy of the law that, so far as possible, litigation should be conducted under the public gaze and under the critical scrutiny of all who wish to report legal proceedings.

(4) The principle of open justice applies to employment tribunals with just as much force as it applies to court proceedings". Although the court ordered that Public Concern at Work should be given access to PIDA claims, the effect of the judgment also applied to all employment tribunal claims. That prompted the CBI, which accepted that there should be access to PIDA claims, to express concerns about general access to all employment claims.

Immediately before the summer recess in 2000 the Department of Trade and Industry introduced the new regulations without consultation. Those required that for the first time the addresses of the parties should be placed on the public register, which could only assist the work of ambulance chasers.

The Minister's predecessors insisted that the regulations were temporary while the issue was given proper consideration. During the next 12 months DTI Ministers gave written undertakings on six occasions that the issue would be consulted on in a "fair, reasonable and informed" way, as the present Minister for Lifelong Learning, Further and Higher Education, my right hon. Friend the Member for Hull, West and Hessle (Alan Johnson), said. The issue was touched on briefly in the 2001 consultation paper titled "Routes to Resolution". Despite the failure to set out fully the background that I have outlined, twice as many respondents to that paper favoured making public the particulars of employment claims as those that opposed it. Three times as many respondents would have preferred the position that existed prior to the temporary regulations. Incidentally, the 2000 regulations remain in place.

Let me turn to the current consultation paper on the draft revised employment tribunal regulations and rules of procedure, which was issued in December 2003. I am disappointed that the section of the paper on the register may mislead consultees. The paper begins the story in August 2000, thereby avoiding some of the background that I have outlined. It suggests that the current regulations reflect the status quo and omits to mention that they form a temporary measure that removes the public's right to know the gist of claims being brought in employment tribunals. It makes no reference to Mr. Justice Jackson's judgment, which I have quoted, nor does it detail the public interest reasons that his lordship relied on in favouring open justice. It does not say that the 2000 regulations for the first time required the register to detail the addresses of parties, thereby causing the Government to receive, in its own words, which I accept, numerous complaints from parties who have found it very intrusive and highly unwelcome to be contacted by third parties offering advice or other services. The paper then refers to the earlier paper—"Routes to Resolution"—and says: A large majority of respondents opposed any change to the rules to make available the particulars of a claim. Given what I have said, that is not a complete analysis of the responses to that earlier consultation document.

In setting out the case for and against an open register, the paper suggests that there can be no right to know the gist of tribunal claims without also revealing the addresses of the parties, and thereby enabling unsolicited and unwelcome approaches to be made to them. As with the earlier consultation, no reference is made to the public interest in open justice. That omission is more surprising when the paper states: On the other hand each individual claim is a private matter. Individuals have a right to privacy. As I said, Mr. Justice Jackson held that right to be overridden by the public interest in open justice. The paper goes wrong in suggesting that the present level of public access to information about employment claims is greater than that in the civil courts. Under civil procedure rule 5.4, as has always been the case in the High Court, the public have the right to inspect the document by which a claimant initiates proceedings.

The paper sets out five options in paragraph 70. Unfortunately, the options do not include any suggestion of returning to the trouble-free position prior to August 2000, treating whistleblowing claims differently, or including on the register the gist of employment tribunal claims. It is with considerable regret that I have to tell my hon. Friend the Minister that I find it difficult to reconcile the current consultation with the undertakings that his hon. and right hon. Friends have given to consider this matter and consult on it in a fully informed way. As an aside I have to express considerable surprise that Public Concern at Work was omitted from the list of pre-consultees.

On the substantive policy, the correct way forward would seem to be for the new rules to provide a right of public access to claims brought under PIDA and, I suggest, the responses too, to ensure that anyone seeking the information can see a balanced picture. The CBI has stated that there should be access to PIDA claims. The TUC, among others, has also accepted that they should be treated differently from other employment claims. After all, PIDA is legislation that the House passed about public interest disclosures. I emphasise that. It seems paradoxical, to say the least, to disapply the basic principles of open justice from such claims, whatever reasons there are for doing so for other employment cases. I hope that my hon. Friend the Minister and his colleagues will see the merit of the approach that I have described and accept that it is the correct way forward.

Mr. Edward O'Hara (in the Chair)

Order. I ask hon. Members to bear it in mind that the debate will finish at 4.43 pm and the Minister needs at least 10 minutes to respond adequately.

4.25 pm
Mr. Richard Shepherd (Aldridge-Brownhills) (Con)

I am grateful to the hon. and learned Member for Dudley, North (Ross Cranston) for initiating this short debate. I am also grateful to the Minister for indicating that he would accept a brief contribution from me.

I was, in one sense, the parliamentary means by which the measure went on to the statute book, because it passed through the private Member's Bill procedure. Its passage was achieved only because the measure had the committed support of the Government, including the right hon. Member for Makerfield (Mr. McCartney), who was then a Minister of State at the Department of Trade and Industry. He was a constant supporter of the concepts behind the Bill after it first emerged during the last Conservative Government's period of office. I am therefore grateful on a number of fronts: getting the Bill on to the statute book could not have been achieved without the Government's support; and, by the time it was introduced, I had convinced the Conservative Opposition that it was a necessary and proper measure, so it completed its passage without opposition in the House of Commons and the House of Lords.

When I introduced the Bill, there was a right of access to the gist of a claim. The essence of the debate is that that has since been removed, in circumstances that have caused the ombudsman to investigate. I make it clear that, whatever the outcome of that investigation, I would have put the provision in the Bill as a matter of policy if I had had the slightest idea that the DTI would be minded to keep such information secret. I know that the Government at that time were aware of the implications of making information available.

Mine is a simple point, because the case has been laid out well by the hon. and learned Member for Dudley, North. The Government should honour what was a clear understanding, even though that is not, in itself, a big deal. I hope that the Minister will make that clear this afternoon. I have reason to know that he is one of the world's greatest experts on Burns—indeed, no man knows more about the sense of liberty and fairness that runs through the works of Burns. I hope that, as was the case last night, he will give us a bonny answer.

4.28 pm
Tony Wright (Cannock Chase) (Lab)

I thought that the hon. Member for Aldridge-Brownhills (Mr. Shepherd), who is my neighbour, would continue for a little longer. Indeed, I was not even sure that I would be able to contribute because of the need for the debate to stop by 4.43 pm, but perhaps I can detain colleagues for a moment.

We all like to claim some role in the paternity of the Public Interest Disclosure Act 1998, and I want to enter my claim. It began life as a ten-minute Bill many years ago under a previous Government. I was delighted when, after one or two little episodes on the way, it finally saw the light of day through the efforts of my neighbour. Under the Conservative Government, it was opposed: they would not accept it, so it went through the process and was destroyed. I am delighted that it was a Labour Government who produced this major public interest legislation.

Two questions matter to me. The first is, how on earth was the mess that was forensically described by my hon. and learned Friend the Member for Dudley, North (Ross Cranston) allowed to happen? The parliamentary ombudsman is to conduct an investigation into whether the consultation procedures were maladministrative. To be fair to the Government, they have made great strides in improving the quality of consultation and have strict rules about how it should be conducted. To test whether they were followed in this case is a depressing, but important exercise. My concern is about the process and whether the consultation worked well enough.

My second concern is more fundamental. The only question that needs to be asked is: where does the public interest lie? Hon. Members will recall that that question was endlessly, but interestingly, debated during the passage of the 1998 Act. The question now is whether the public interest lies in having it known what claims made under the Act are about. We have only to ask that question to know the answer. Of course we need to know that if we are to make any judgment about how the Act is working and if the public interest is to be maintained.

My conclusion is simply that if we are to be consistent with the founding principles of the 1998 Act, we must know the basis on which claims are made. I am sure that the Minister, who is full of good sense and generosity, will agree and will reply in an encouraging way.

4.32 pm
The Parliamentary Under-Secretary of State for Trade and Industry (Nigel Griffiths)

I apologise to the Chamber on behalf of my hon. Friend the Minister for Employment Relations, Competition and Consumers, who has ministerial responsibility for this subject. He has other duties, namely the matter of aerospace, to deal with in the House at this time. I am glad to be able to stand in for him, particularly in such distinguished company.

I congratulate my hon. and learned Friend the Member for Dudley, North (Ross Cranston) on securing a debate on such an important matter. It is always a pleasure to listen to the hon. Member for Aldridge-Brownhills (Mr. Shepherd), who did so much to advance the cause and secure historic legislation. It is a pleasure also to listen to my hon. Friend the Member for Cannock Chase (Tony Wright) who, as well as being Chairman of the Public Administration Committee, played a significant role as Parliamentary Private Secretary to the Lord Chancellor when the legislation was debated. We await his memoirs with great interest.

I want to touch on the core of the issue. I remind the Chamber that the Public Interest Disclosure Act 1998 came into force in July 1999 as an employment protection measure. It added whistleblowing to the statute book and made whistleblowing on wrongdoing in the workplace an employer's responsibility. It ensured that protection against victimisation was available as provided by the Employment Rights Act 1996 and allowed workers who are victimised to complain to an employment tribunal and to receive unlimited compensation.

The measure that we are currently discussing, which is the subject of a consultation paper, has been commented on by informed outsiders. I pay tribute to the work of Public Concern at Work and Guy Dehn in highlighting their concerns about the content of the consultation document, and those concerns have been echoed and elaborated on by hon. Members today. The Government believe that there is a need for a public debate on the future of the register of employment tribunal applications. The current open consultation is designed to help colleagues to judge where the balance of public interest lies. None of that removes the importance to Public Concern at Work and other such organisations of information on employment tribunal claims. Their interest will be an important consideration in the Government's judgment about the future of the register.

The register of applications serves a number of important purposes for the moment. It allows information about the enforcement of employment rights to be publicly available. It assists bona fide special interest groups, such as Public Concern at Work, who may wish to monitor certain types of case and allows them to monitor the Act. It also enables those who have particular services to offer, such as employment law advice and representation at a tribunal, to make unsolicited approaches to applicants. Provided that solicitors and others advertising their services act with due propriety, the Government's view is that they are capable of significantly extending access to justice and the rule of law to individuals.

Concern has been expressed about the number of so-called ambulance chasers who have been touting for business in ways that have received unfavourable publicity. There have also been allegations of blacklists of employment tribunal applicants, which may be checked by certain unsavoury organisations before recommending staff for recruitment. One of the recommendations of the employment tribunal system taskforce, which hon. Members will know is an organisation made up of tribunal judiciary, ACAS, the TUC, the CBI and other representatives of tribunal users, said that the register of applications should be abolished. The consultation document ensures that all possible views are included.

In response to my hon. Friend the Member for Cannock Chase, the question about the public register of tribunal applications continuing unchanged is posed, and posed directly, in question 16. I should not like him to think that the document was produced by anyone with a closed mind or preconceived notions or that it was merely an insignificant consultation paper that could not influence decisions that have already been taken. That is far from the truth. With the number of PIDA applications rising in recent years—there were 524 two years ago and the last available figure showed that they had risen to 657—there is clearly a demand for this and there have been some well-publicised cases.

I have noted with concern some of the key points that have been made. I know that my hon. Friend the Minister for Employment Relations, Competition and Consumers is willing to meet my hon. and learned Friend the Member for Dudley, North and other hon. Friends and Members to discuss their concerns and to take on board the points that they are making both on their own behalf and on behalf of their constituents and special interest groups.

It is in everyone's interest to ensure that there is as much public disclosure as is practical and that this type of legislation is as effective as possible. I, for one, do not want to see anything that might deter people from using the power that they have been given and enlisting any help they may need to pursue their claims. Nor is it desirable that other responsible people should not have access to a database. The consultation document is about how the practical database may be made available. It also takes on board views directly opposed to those that have been expressed today, such as the employment tribunal system taskforce's view that the register should be abolished.

I am sure that my right hon. Friend the Secretary of State and my hon. Friend the Minister for Employment Relations, Competition and Consumers will review all representations that are currently being made on the consultation paper both by hon. Members and informed outsiders and weigh them up seriously before coming up with the final proposals, which will be subject to debate in Parliament.

Question put and agreed to.

Adjourned accordingly at twenty minutes to Five o'clock.