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Public Interest Disclosure Bill

12.34 p.m.

Lord Borrie: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.--(Lord Borrie.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Murton of Lindisfarne) in the Chair.]

Clause 1 [Protected disclosures]:

Lord Wedderburn of Charlton moved Amendment No. 1:

Page 2, line 13, after second ("disclosure") insert ("knowingly or recklessly").

The noble Lord said: Perhaps I may explain the approach which my noble friends and I have taken as regards amendments to this Bill. I was unavoidably absent at Second Reading, but I share the view expressed by many in that debate--by the Minister, the noble Lord, Lord Borrie, and my noble friends Lady Turner and Lord McCarthy--that this is an excellent and long overdue venture. It follows the usual procedure now for matters of this kind of a Private Member's Bill

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supported by the Government. I congratulate the noble Lord, Lord Borrie, and the members of Public Concern at Work on putting this Bill forward.

However, no Bill is perfect. We apprehend that it is equally our job, with a Bill that goes through this procedure, to suggest revisions where we believe it is proper so to do. But it is sometimes difficult to know to whom to direct the suggestions, whether to the originators of the Bill or to the Minister. No doubt they will explain their own individual positions.

In addition, we have not tabled every possible amendment that we believe should be made. Perhaps I may use this opportunity to mention one or two matters which deserve a second look, but which we did not include in our amendments. For example, in the new Section 43C it is suggested that an employer may--or by inference may not--authorise a grievance procedure. At Second Reading (Hansard, 11/5/98; col. 901.) the Minister said, very sensibly, that employers,

    "may build upon existing grievance procedures or it may be more appropriate to designate a senior manager, the company's lawyer or an auditor as the person with whom concerns should be raised".

Perhaps the Bill does not take full account of the fact that in 1995 the Employment Appeal Tribunal held that in these days,

    "It is an implied term in a contract of employment that the employers will reasonably and promptly afford a reasonable opportunity to their employees to obtain redress of any grievance they may have".

That was in the case of Goold v. McConnell in 1995. I am not suggesting--and neither are my noble friends--that a grievance procedure, as it is usually understood, is precisely the sensible procedure to have for disclosures of this sort, but with a small amount of adjustment what is now a legal duty could be made to serve, as the Minister suggested, in this Bill.

We have not put down amendments on the question of the burden of proof. I ask the Minister if he will, with his skilled advisers, look through the Bill to see exactly on whom lies the burden of proving something true or false.

I shall speak to Amendment No. 1, which arises in this way. The whole philosophy of the Bill would appear to be based on a worker taking reasonable action on the basis of reasonable belief. That does not in any way summarise fully the terms of what will be new Sections 43C, 43G and 43H on which we shall no doubt spend more time later. The thread that I found was that if a worker is behaving reasonably, he might on the whole be able to slip through these hoops.

However, that is certainly not so with regard to one subsection. I refer to the case of a worker who in good faith and reasonably, so he believes, wants to disclose to a proper person some misfeasance of Maxwellian proportions. He may find that unintentionally he has transgressed some strict rule of the criminal law. We no longer teach our students that mens rea or a guilty mind is necessarily part of a criminal offence. If that employee is working with someone who is hacking information from another programme--a few years ago we made that a crime--he may not know that that information is coming from a young hacker, who will

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probably be aged about 12 because in order to get a really good hacker one has to go down the age range, that employee will be committing a crime. However, the worker sitting next to him, who then wants to disclose the matter, may be an accessory. In certain circumstances, I would be prepared to argue that he could be a principal.

The example that is usually given is of someone finding that he is acting contrary to by-laws. That arises especially where a worker is giving the information, on paper, as it were, in a place where he is not supposed to do that. It is easy to find by-laws that may be transgressed. It has been suggested to me that there may be situations in which such an employee could innocently trespass with others into private property and find that he was part of an aggravated trespass under the Police and Criminal Evidence Act.

In such circumstances, the amendment suggests that that employee may be made to lose his protections under the Bill--that is what is at stake in subsection (3)--if he commits any criminal act with or without mental intent. The amendment retains the loss of protection where the worker has acted either knowingly or recklessly in that way. The word "recklessly" covers a wide ground. As the noble and learned Lord, Lord Denning, once put it, it is the man who turns a blind eye. Other members of the judiciary have described it as including "Nelsonian knowledge". I accept that. Indeed, I am asking for a small area of ground in which the worker maintains the possibility of protection under the rest of these provisions when he knows none of the elements, and has failed to inquire into any of the elements, which constitute a criminal offence.

At Second Reading, the noble Lord, Lord Borrie, said something with which I entirely agree. He said:

    "This ... will become a statute which will not be easy for the ordinary worker in the workplace to interpret without some help".--[Official Report, 11/5/98; col.904.]

I entirely accept that. Indeed, I have adopted that line. Surely the ordinary worker will understand whether he is being penalised--because now we are saying that he will lose his protections--just because in the course of his action he wandered into some area of criminal liability about which he knew nothing and of which no one had advised him. If the employee has reason to take advice, that still falls within the provisions of the Bill. Surely it is not a circumstance which should remove the protection of disclosure by a worker wholly taken by surprise at his criminality. I fear the day when the worker is deprived of his protection when others are not merely because of what may be the accident of criminality in the actions in which he has joined. I take it that the provisions would cover the position of a worker who is part of a group which could be said to be a conspiracy, aiming at the same venture; the acts of one being attributed as the acts of all.

This is a small amendment, based on what many people believe to be the philosophy of the Bill, which is that if workers act reasonably, are sensible, and take advice when they obviously should, they will be protected in a broad sense. We think that subsection (3) offends that. We do not believe that there is any problem with the Official Secrets Act. Anyone who is subject to

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that Act will know that they have to get things cleared. We thought that we should table this small amendment for your Lordships' consideration. I beg to move.

12.45 p.m.

Lord Nolan: I totally applaud the motive underlying the amendment, and perhaps I may say a word or two about it. The clause as it stands requires proof of the commission of a criminal offence by the employee who is to be deprived of the protection of the Bill. If he has been prosecuted in a criminal court, questions of proof will proceed on ordinary lines. If the question arises in, say, an industrial tribunal, I believe the law to be that the offence would still have to be proved according to the standard appropriate for crime. That was certainly the view expressed by my noble and learned friend Lord Lane when he was Lord Chief Justice, and on a number of occasions by my noble and learned friend Lord Denning. It would be a rare and rash judge who would take a different view.

I cannot put my finger on every one of these offences, but I suspect that many, if not all, contain their own specified type of guilty mind, guilty knowledge or perhaps a defence for the innocent, unwitting transgression of a statute. I wonder whether some confusion might arise if, on top of the requirements of the provisions for the commission of a particular offence, the tribunal considering the matter has to add in the adverbs "knowingly or recklessly". Might that not present the tribunal with some difficult questions of law when I hope that that will not be necessary? In other words, I hope that the fact that the offence has been committed will itself be a matter of sufficient gravity as to deprive the employee of the protection of this measure as long as he fulfils the ordinary requirements of the relevant Act for the commission of the offence. Of course, it might be one of strict liability, but they are rare. Usually some guilty mind is required. I question whether the additional words might muddy the waters instead of clarifying the law, which is the intention of the amendment.

While I am on my feet perhaps I may add that, like my noble and learned friend, I was unable to attend the Second Reading debate. However, I should like now to welcome the Bill. My three years in a previous incarnation as chairman of the Committee on Standards in Public Life persuaded me of the urgent need for such a measure. That view was shared by all my fellow committee members. I congratulate the noble Lord, Lord Borrie, and his colleagues at Public Concern at Work for so skilfully achieving the essential but delicate balance in this measure between the public interest and the interests of employers.

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