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Lord Wedderburn of Charlton: I wish to put to the Minister some words of his own and to quote from what he said on Second Reading. He rightly brought to our attention the fact that there are two ways of looking at what the worker wants to do; there is the internal procedure, which those who frame the Bill would like to be tried first, and there is an external procedure. He stated:


Those are two proper examples where the employer is alerted.

More important for the individual is the case where he fears victimisation. To whom does the worker turn in such a case? Certainly not to the internal list, which the Minister properly gave us, but to the external list. Those in charge of the Bill say that there will be a list of people who are designated under Section 43F, although it sounds as though trade union officials will not be designated under that section. According to the Second Reading debate, they are being confined to giving advice on codes of practice.

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We are saying that our noble friend the Minister is right that people will fear victimisation, but we want them to have a chance of talking to someone on a reasonable basis which is not cut off from other lawful procedures. If a worker is threatened with victimisation, or believes that he is, and has begun proceedings in an industrial tribunal, it is now possible to allow a compromise agreement to end the proceedings. That procedure has been up and running for only a few years. It used to be something which one could not or should not do. However, we passed that provision in 1996.

My noble friend Lady Turner referred to the three groups of people to whom the worker can go for advice and to discuss the issues on a compromise agreement. But it is likely that in the middle of the discussion with his trade union representative, not with the lawyer--and we query the position of the representative from the citizens advice bureaux--the trade union representative, usually of a senior level, will say, "There seems to me more in this". The worker will say, "Yes, I could tell you tales that would make your hair stand on end". The trade union representative will say, "For goodness sake, level with me. Come on, I want to know about this". As the Bill stands, they must go through the provisions in Sections 43G and 43C. No legal advice is involved so Section 43D does not apply. Why on earth is it wrong for the worker in that situation to tell the trade union representative who is acting for him what the case is about when it would not be wrong to do so if he were sitting with a legal adviser, perhaps acting in the same industrial tribunal case? My noble friend's amendment is eminently reasonable.

Lord Haskel: The noble Lord is right in saying that if there are good reasons for not disclosing first to the employer because of the fear of victimisation, the individual will not lose protection if he or she goes to someone else. That someone else could be a trade union official. Obviously, a tribunal would look at it one way if a person went to a trade union official and another way if he went to a journalist.

I refer the noble Lord to Section 43F. The Secretary of State is obliged to prepare a list of those external people to whom an individual can go. Certain trade union officials could be included in the list, but that matter is open for discussion and has not yet been settled.

Lord Borrie: As regards the substantive issue, there is no difference between the sponsors of the Bill and the sponsors of the amendment. Undoubtedly, individual trade union officials will play a major role in implementing this legislation at a number of different levels. Apart from the role which trade unions will have in advising employers and negotiating with them on suitable whistle-blowing procedures, the Bill recognises that unions will have a valuable part to play in advising individual members who have concerns.

Where a union is recognised--I will not go into what Fairness at Work states about that and the future possibilities--I have no doubt that management will actively want it to play a role as an alternative channel

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to line management in receiving disclosures of malpractices in the workplace. In that way, trade unions or trade union officials will be part of the employers' whistle-blowing procedures and as such the union will be protected under Section 43C.

Where a member makes a disclosure to his union in the course of obtaining legal advice--and here, if you like, I am talking about the union solicitor--then, irrespective of whether the union is recognised at the workplace, if there is such a disclosure and a seeking of legal advice on how to raise the matter, that disclosure to the union solicitor will be protected under Section 43D.

However, I should now like to emphasise a point to which I shall return later. It is something which none of the speakers in favour of the amendment has so far mentioned; namely, that a key aspect of all such disclosures to lawyers mentioned in the Bill, as reflected in Section 43B(4), is that the communication is confidential. That is a point of some significance to the role of the unions to which I shall return shortly.

Where a union does not come within any of those provisions which I have mentioned, then, as my noble friend Lord Wedderburn said, Section 43G will apply. In cases where the employee is victimised because he went to his union for assistance, that fact alone should meet the provisions in Section 43G(2)(a) and relieve him of the need to raise the matter with management because of fear of victimisation. The key issue in anything to do with Section 43G is whether the disclosure made to the union was reasonable. In those cases, I suggest that it would indeed be reasonable. I give way to my noble friend.

Lord Wedderburn of Charlton: I am most grateful to my noble friend for giving way. He cited Section 43G(2)(a). Am I right in thinking that that deals with a disclosure which is primarily internal; in other words, it deals with the situation where the person concerned,


    "makes a disclosure to his employer or in accordance with section 43F"?

However, we should put Section 43F aside because we do not know what the Government will do as a result of their new thinking. Surely this relates to disclosure to the employer.

Lord Borrie: No. Section 43G refers to someone outside the workplace--that is to say a union official--where at the time that the person makes the disclosure, as set out in Section 43G(2)(a), he,


    "reasonably believes that he will be subjected to a detriment by his employer if he makes a disclosure to his employer".

The points that I have been making suggest to me that, in practice, the Bill--and, admittedly, it is subtle detail--is adequately comprehensive. One anticipates that there will not really be any problems about disclosures to unions or union officials. However, if I am wrong in that respect, then, as my noble friend the Minister indicated, unions will no doubt want to make a case to the Government to be "prescribed" persons under Section 43F. The list in that respect has not yet been devised. Indeed, on Second Reading I believe that

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I used as examples regulators such as the Financial Services Authority, and so on. However--who knows?--a case could be made and that would be for secondary legislation.

I turn now to the wording of my noble friend's amendment--

Lord McCarthy: Before my noble friend refers to that wording, perhaps I may make a point which I do not want to be overlooked. My noble friend mentioned the word "confidential". I do not want that to escape our attention. I was very pleased that he mentioned the word, but he then passed on to something else.

Lord Borrie: I should tell my noble friend that I intend to return to that word.

Lord McCarthy: I shall make further comment at that stage.

Lord Borrie: I am sure that I indicated that I would return to the matter in due course. I do not need to repeat the wording of my noble friend Lady Turner in listing the people who are "independent advisers" under the Employment Rights (Dispute Resolution) Act 1996. I need not speak about qualified lawyers because clearly there is no problem in that respect. We also have officers and employees of unions who are certified as competent to give advice and workers in an advice agency. That provision deals with advice and assistance in the compromise of claims. As such, I am not sure that it is directly relevant to the subject matter of this Bill. I doubt that it is appropriate that disclosures to someone in those three groups should be equated with a reporting of a malpractice to the employer. Indeed, whether the person is an advice worker or a trade union official, it is difficult to equate that with the first line of approach, as it were, in the Bill which is to an employer or someone in the employer's organisation.

Where a person is approached for confidential legal advice, protection under Section 43D will apply. As with all disclosures for legal advice, Section 43B(4) ensures that the lawyer cannot do as he pleases with the information. That is a most important point. As it stands, the amendment would not impose on advice agencies and unions the linked obligation under Section 43B(4). Unless the advice agency or union accepts that the information is subject to clear obligations of confidence, it will be free to do as it pleases with the information.

It is possible that certain advice agencies--or, indeed, unions--will accept as a matter of practice strict obligations of confidence. However, the amendment does not deal with that aspect of the matter. I shall now pursue that issue because, if I do not do so, I am sure that my noble friend Lord McCarthy, will urge me to do so. One solution would be to say that the disclosures to unions under the provision should be subject to obligations of confidence. Therefore, that would make it the same as disclosures to lawyers. But to do so would have a significant effect on the role of unions in labour relations. It would mean that the information could be used for no other purpose than the one to which the client had agreed. It could not be used in the course of

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general negotiations with the employer. More significantly, if the information related to some safety risk, but the whistle blower decided that he did not want to raise it or pursue it, it would not be open to the union to take up the matter itself even though the well-being of some of its members might well be affected.

Without such an obligation of confidence as a quid pro quo to trade union officials being equated with lawyers, one possible effect of the amendment would be to give irresponsible whistle blowers a potential passport to media and more public disclosures if they were to find an individual union member or officer who would brief the media. The publication would be effected by that person on his own behalf. The employer would have no recourse against the employee whose disclosure would be protected. We are sure that this is an unintended effect of the amendment because, as my noble friend Lady Turner said on Second Reading, disclosures to the irresponsible and sensational parts of the media should not be encouraged. I give way to my noble friend.


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