Private Members' Business. - Whistleblowers Protection Bill, 1999: Second Stage.

I move: "That the Bill be now read a Second Time."

The purpose of this Bill is to challenge and help transform the traditional culture of secrecy that surrounds the conduct of business and public affairs in this country. Is it credible that nobody knew or suspected that all was not well at the Blood Transfusion Service Board? Did nobody in the Department of Agriculture and Food know or suspect illegality and malpractice in the beef industry? Did nobody know or suspect the consequences of Army personnel being exposed to hearing damage? Following 30 years of serious allegations, analysis and criticism of the planning system, especially in the Dublin area, is it believable that nobody in the system ever stumbled across any wrongdoing as regard illegality and malpractice as alleged against certain financial institutions? Did nobody in these institutions know what was going on? To all of these questions most right thinking people believe that people did know or at least had their suspicions but the consequences for career, family and livelihood of whistleblowing are so severe that people are prepared to turn a blind eye.

It is not difficult looking over the history of whistleblowing to understand this reaction, but on the other hand the consequences of turning a blind eye can be devastating in terms of the cost, human and financial. Therefore, what I am proposing is a set of new statutory rights for employees, whether in the public or private sector, to report and transmit information they receive of illegality or malpractice which they have discovered in the course of their employment. This is an essential step to restoring confidence in our major institutions, whether industrial, financial or governmental.

Under the provisions of this Bill any employee who blows the whistle on fraud or malpractice will be entitled to protection against dismissal or any other sanction which his or her employer attempts to impose. These rights are essential if we are serious about ending the nod and wink culture that permeates certain sectors of Irish business and public life. The Bill, if enacted, will radically challenge the culture of secrecy that surrounds much of Irish business and public life. It provides legal protection to employees who have good reason to report dubious practices to regulatory authorities such as the Garda, the Central Bank and the Revenue Commissioners. Employees who make such disclosures in good faith will be protected by the law from civil liability and discrimination in their employment up to and including dismissal.

Events of recent years have demonstrated that the legal position at present discourages individuals from reporting what they believe to be serious offences or major failings on the part of their employers. These are usually failings that have a definite public interest dimension. I could give many examples, both at home and abroad, dating back to the arms crisis when surreptitious communications at that time had to be held with the then Leader of the Opposition, Liam Cosgrave, by certain civil servants. The result was the sacking of Cabinet Ministers and criminal prosecutions.

More recently workers in the beef industry who were aware of gross malpractice at some factories had to hold clandestine meetings in the middle of the night with politicians in an attempt to draw attention to the widespread abuse of European taxpayers' money. To this day these workers live in fear that their careers will suffer if their role in exposing the abuses within the beef industry is revealed.

I am aware also that present and former employees of National Irish Bank who had originally approached the Revenue Commissioners with information on what they considered to be corporate malpractice believed that insufficient action would be taken about it by that body and therefore they believed they had to release that information to RTE. Without the assistance of Mr. James Gogarty the Flood tribunal would have been unlikely to have brought certain information into the public domain. The motives of an individual may vary. There may be a backdrop involving ongoing rows and bitterness. That is inevitable. The important consideration, however, is that no trace of legal sanction should be raised against someone who eventually decides to perform his or her civic duty and to reveal some form of illegal activity or malpractice.

The Whistleblowers Protection Bill is designed to give legal protection against persecution and discrimination to workers who find themselves in such situations. Many abuses occur in Irish life. Many abuses have occurred in Irish life due to the fact that no one shouted stop. This is just as true also in the business world as it has been proven more radically and tragically to be true in the area of institutional care. This Bill will challenge that culture. I acknowledge the role played by Deputy Shatter and the Government in accepting the Shatter Bill in ensuring that whistleblowers operating in the area of child care and in the monitoring of or interacting with those involved in that profession would be protected in their jobs so long as they acted reasonably and in good faith.

Primarily, the Bill supports individuals who make disclosures to relevant authorities which have a regulatory, supervisory or investigative role. It is not designed to encourage anyone as a first resort to run straight to the media with information received in confidence in the performance of their duties. However, recent revelations regarding abuses in, for example, the banking sector and the planning system point to the fact that our regulatory authorities must have access to information to investigate serious issues of public concern. There is an obligation on the State to ensure that individuals who provide such information are not victimised or discriminated against in the wake of their disclosures. This is not a Bill which the Tánaiste – or the Minister of State, Deputy Kitt – should address, wearing her hat for either enterprise or trade because it is an employment and public interest Bill. It is designed to secure rights for any worker, whether on a FÁS course, working in a hospital, a blood bank, a supermarket, a beef factory, a financial institution or a Department, complicit with improper decisions taken by his or her management superiors.

There is a genuine public concern at the failure of the regulatory institutions, such as the Revenue Commissioners and the Central Bank, to crack down on glaring abuses of the system. I share this concern. The Labour Party is determined that the safeguards the State has put in place to ensure decent standards prevail in public and commercial life must work and be seen to work. I do not particularly want to single out the Revenue Commissioners and the Central Bank as I am conscious that allegations made against certain financial institutions are the subject of inquiry by a committee of the House, the Committee of Public Accounts. Whereas that committee may be investigating the quantum, for example, of moneys due to the State evaded in taxation and whether there was an agreement or an understanding of any kind between the Revenue Commissioners and the financial institutions concerned, I do not think it is seriously contested by anybody that there was significant tax evasion or significant underpayments to the State during the years which are the subject of the ongoing inquiry and an imminent report due from the Comptroller and Auditor General. Nonetheless, it appears to be accepted that under-returns to the Exchequer were extensive in those years.

The Bill will greatly assist in this process. It supports the individual against the might of major companies and institutions, public and private. It upholds the right of the individual to draw attention to abuses which affect all of us and it is worthy of the support of all Members of the House. In particular, the Tánaiste is under an obligation to accept the principle behind the Bill and I welcome the news today that the Government is likely to do so.

Since taking office, the Tánaiste has instituted 13 different inquires regarding low standards in high places in certain businesses. While the Tánaiste has not yet delivered on her often promised determination to make public the findings of these inquiries, she has alluded to her shock at the level of abuse of company law which her inquiries have unearthed. She has already endorsed former Deputy McDowell's company law report containing the proposal for a new company law enforcement office. The effectiveness of this proposed regulatory body will be fundamen tally defective unless the provisions of the Labour Party's Bill are implemented in tandem with the new legal regime the Tánaiste is proposing for Irish business.

Provisions along the lines of those contained in the Bill which I am introducing on behalf of the Labour Party were originally to have been included in the Freedom of Information Act, which was steered through the Dáil by my former colleague, Eithne Fitzgerald, when she was Minister of State in the Office of the Tánaiste. I am open to correction but I understand the complication which arose at that time was that the freedom of information legislation was intended to deal solely with the public sector, including Departments, local authorities, health boards etc. However, this aspect is much more wide-ranging because it could impact on any employer-employee relationship in the public or private sector and it would not have sat comfortably in the same Bill.

Apart from anything else, two different Departments would have been involved in overseeing the implementation of the two different aspects of the one Act, the Department of Finance with regard to freedom of information in the public service and the Department of Enterprise, Trade and Employment with regard to employee protection in whistleblower cases. Nonetheless, I take this opportunity to acknowledge the ground-breaking work done by former Deputy Eithne Fitzgerald on the issue of whistleblower protection and to place the Bill in the context of the commitment to openness, transparency and accountability which produced the Freedom of Information Act, the Ethics in Public Office Act and the reforms of the Electoral Acts which govern disclosure of donations and expenses at elections and cap expenditure at all elections except, as a result of the most recent legislation introduced by the Minister, Deputy Dempsey, the recent local elections.

In considering the Bill, the first question members of the public may ask is what is a whistleblower? The best description I have read is on a website run by a US organisation called the Government Accountability Project. This project describes its mission as to protect the public interest and promote government and corporate accountability by advancing occupational free speech, defending whistleblowers and empowering citizen activists. Increasingly, it also advises public agencies and legislative bodies in the United States. Its legal director, Mr. Tom Devine, writes as follows:

Like a referee blowing the whistle in the presence of a foul, the whistleblower in the corporate or federal arena believes he or she has credible evidence of wrongdoing that bears exposure. Such wrongdoing may be illegality or fraud, gross mismanagement or waste, or a specific danger to the health or safety of the public or the environment. Whistleblowers are almost always endorsed by politicians as cham pions of justice, but their message is not always welcomed by those challenged by the disclosure.

The decision to blow the whistle in the public sector is an intensely personal one, and brings into focus the conflict between loyalty to the employer and far-reaching consequences that could result from remaining silent. Despite our society's embrace of freedom of speech, those who have the courage to voice dissent often end up as martyrs. When this happens there are no winners: the dissenter may lose his or her career by taking on the system, and, by silencing the messenger, the organisation often covers up what could be the first warning signal of a subsequent disaster. The result may also discourage others from speaking up about the problem.

Mr. Devine goes on to analyse the possible motives of a whistleblower which, as I mentioned, may not always be perfect. He writes:

Whistleblowers cannot be stereotyped as either role models or vengeful, disgruntled employees. Motivation can range from the most altruistic to the most self-serving. Some whistleblowers are conservative, others are liberal; some are braggarts, others self-effacing; some are gregarious, others are painfully shy.

Their jobs range from maintenance positions to seats in high management. What they have in common is that they have learned something that they are unwilling to keep to themselves, and they have chosen to act on that knowledge.

Deciding whether or not to expose a suspected fraud or wrongdoing at work is difficult, and brings to light a slate of seemingly contradictory values. We don't like cynical troublemakers and naysayers, but we also have contempt for busybodies, squealers and tattletales. We condemn just as strongly those who "don't want to get involved", claim to "see nothing" or look the other way when something wrong happens. And, while we believe in the individual's right to privacy, we simultaneously fight for the public's right to know.

The conflict brings up personal issues of loyalty and livelihood. Loyalty to one's family is an instinct as much as a duty; as such, we believe that we shouldn't bite the hand that feeds our family by turning on our employers. However, few would disagree that we all have a duty of loyalty to the public trust, the law and our communities. That's the heart of our duty as good, patriotic citizens.

The responsibility of public disclosure is a thorny ethical question. If an employee has evidence of an employer's illegal or dangerous activities and does not take action, is he or she acting in complicity? To what extent does the silent employee bear some of the guilt? The responsibility of taking on the system is a grave one – the outcome is not guaranteed to rectify the situation, and the whistleblower may suffer serious personal consequences.

These are very real issues which arise for any prospective whistleblower. Legitimate issues arise for the State and for business. We do not want to write a charter for cranks and malcontents, still less for those who have the least interest of their employers at heart and may even be out to sabotage those interests. A balance, therefore, must be struck and I have attempted to strike such a a balance in the Bill. However, this is not the first Legislature to address this issue. Even before parliaments turned their attention to this question, the courts in various jurisdictions had to consider the matter.

A number of people have made submissions to me since the Bill was first published and I acknowledge those contributions. As the Government has agreed not to oppose the Second Reading of the Bill, I will come back to those submissions on Committee Stage. I am grateful in particular to Ms Estelle Feldman, a research associate at the School of Law, Trinity College, for allowing me to assimilate from some of her published and as yet unpublished material on this area. I do not attribute to her any responsibility for defects in the Bill – in fact, she has pointed out some already.

The leading whistle blowing case in these islands, Gartsidev. Outram, dates back to 1856. The employers, who were wool brokers in Liverpool, carried on their business in a fraudulent manner. One of their employees, a sales clerk, blew the whistle, notwithstanding that under the law at the time, any breach whatsoever on the part of a servant of the contract of employment with his master was a criminal offence liable to three months' imprisonment. The court gave the following judgment:

The true doctrine is that there is no confidence as to the disclosure of inequity. You cannot make me the confidant of a crime or a fraud and be entitled to close my lips upon any secret which you have the audacity to disclose to me relating to any fraudulent intentions on your part. Such a confidence cannot exist.

This line of thinking was followed by our Supreme Court as recently as last year, in the litigation involving National Irish Bank and RTE. In that case the court held that, while there was a duty and right of confidentiality in the relationship of banker and customer, this was outweighed by the public interest in defeating wrongdoing through the publication of information relating to allegations of serious tax evasion. No doubt all Members of this House welcomed that especially important judgment, which recognises the bond of confidentiality which constitutes the relationship between customer and banker while acknowledging the overriding significance of the public interest in defeating wrongdoing.

However, the NIB case, although it is certainly of benefit to RTE and other media, did not deal with the central issue from the whistleblower's point of view, namely, what would happen if he was caught out? What employment law remedies would be available in the case of victimisation or penalisation? Why did he feel it necessary to approach a TV station in the first place? What would have happened if he had approached the regulatory authorities of the State with his information?

As long ago as 1978 the US Congress considered this issue and passed the Civil Service Reform Act of that year, to provide relief against reprisal for blowing the whistle on mismanagement, waste, fraud and abuse in the Federal Government. That Act was updated and reformed by the Whistleblower Protection Act, 1989.

In the United Kingdom, a country with a Government and establishment almost as notoriously secretive as our own, a Public Interest Disclosure Act, 1998 – originally a Private Members' Bill – was adopted by the Government and enacted last year. An interesting aspect of the adoption of that Bill by the British Government was that its passage was supported also by the Institute of Directors and the Confederation of British Industry.

This is a serious issue, as yet not dealt with here, which deserves legislative attention and which should not be tackled lightly. I do not claim to have written the final word in this area; if the Bill enters Committee Stage, I will move amendments to it. On Second Stage, I ask the House to accept the general thrust and purpose of this Bill and to agree that its provisions deserve further consideration. If so, we can, on Committee Stage, thrash out the consequential issues which are bound to arise. I am not married to any form of wording.

As is traditional I will now outline the main provisions of the Bill. Its purpose is to provide protection from civil liability to employees who make disclosures in categories listed in the Bill, so long as those disclosures are made "reasonably and in good faith". I stress those words and reiterate that I am not advocating a free for all for rogues or malcontents in our business and commercial world, still less in the public services – there are no rogues or malcontents in the public service. Many Members will agree with the views of the English Law Lord, Lord Wilberforce, expressed in a case involving British Steel and Granada Television. He pointed out that "there is a wide difference between what is interesting to the public and what is in the public interest to be made known".

The Bill also would prohibit the penalisation of employees by their employers where disclosures are made. It lists the persons to whom disclosures should be made and it specifies the categories of matters where disclosure is permissible. To deal with the first matter, the authorities to which disclosure can be made are listed in section 1 as the Central Bank, the Comptroller and Auditor General, the Data Protection Commissioner, the Environmental Protection Agency, the Garda Siochána, the Health and Safety Authority, the Information Commissioner, the Ombudsman, the Public Offices Commission and the Revenue Commissioners.

I have also included a catch-all provision to deal with updating or amending legislation which provides that disclosure can be made to any other public body on whom or which regulatory or supervisory or investigative functions stand conferred for the time being. For example, it has been suggested to me that I ought expressly to have listed the Competition Authority and the Criminal Assets Bureau. It has also been suggested that I should not have expressly listed any body or person but should rather have a catch-all, governing provision which enabled the widest possible scope of application of the Bill. I would be interested to hear the Minister's view on that point.

Section 2 lists what are categorised as "protected disclosures". This is based on the recently enacted British legislation and it encompasses any information which, in the reasonable belief of the employee in question, tends to show the commission of a criminal offence, a breach of legal obligation, a miscarriage of justice, the endangerment of the health or safety of any individual, damage to the environment or the deliberate concealment of any information relating to those categories.

Section 3 sets out to whom disclosure may be made. It makes it clear that, in the first instance and so far as practicable, disclosure should be "in house". An employee should consider making a protected disclosure of information to his or her employer; where a third party might be involved, to that third party; if he or she is an employee of a public body, to the Department of State under the aegis of which the public body operates; and where regulatory, supervisory or investigative functions are vested in another State body, to an officer of that body. There is also protection for seeking legal advice in relation to an employee considering his or her options in such a situation.

It is only if the relevant failure on the part of an employer is, in the words of the Bill, of "an exceptionally serious nature" and, in all the circumstances of the case it is reasonable to do so, that an employee would be protected under this Bill for having delivered an as yet uninvestigated disclosure into the public domain. For example, the persons most likely to receive information under that provision would be a Deputy or a journalist. The courts have ruled on what would apply if the information was disclosed to a Member of this House, in a case stemming from the Beef Tribunal which involved Deputy Spring and myself, in which a ruling of Mr. Justice Hamilton, as he then was, was subsequently judicially reviewed. The view has been endorsed that not only should a Member of this House not disclose the identity of his or her informant but, in the circumstances encompassed by that judgment, he or she has a positive duty not to do so. The debate on this section will, therefore, probably concentrate on the role of the journalist who mediates such information into the public domain in these exceptionally serious circumstances.

In judging whether it was reasonable to make such a public disclosure, the Bill provides that regard should be had to whether the employee made the disclosure for personal gain; whether he or she reasonably believed that a penalty or detriment might otherwise have arisen; whether he or she reasonably believed that there was no appropriate supervisory or regulatory body to which to report; whether the employee reasonably believed that relevant evidence might be concealed or destroyed; whether the employee had previously made a disclosure of much the same sort of information and, if so, the outcome; and the identity of the third person to whom disclosure was made.

Section 4 provides protection from civil liability for employees who make protected disclosures. In other words, they cannot be sued for breach of any express or implied term in a contract of employment relating either to official secrecy or the business confidentiality of the employer. Section 5 protects employees from discrimination in their employment, having made a protected disclosure, up to and including dismissal. The avenue of redress for such an employee is by way of complaint to a rights commissioner, with provision for further appeal to the Employment Appeals Tribunal. The Commissioner or, on appeal, the Employment Appeals Tribunal can direct the employer to take specific steps such as, for example, the reinstatement or re-engagement of an employee or the payment of compensation.

The final sections deal with standard and somewhat technical matters to assimilate the new legislation into the general employment protection code. Framing a code that would give expression to the principles behind this Bill and supporting it in the discussions between the social partners would probably do as much as the legislation to change the culture that exists at present. It would attract the allegiance of both sides of industry. I have received a fair amount of criticism for the provision for reinstatement and re-engagement in the Bill or, alternately, compensation since the Bill went into the public domain. Re-engagement or reinstatement may not be practicable in many situations. To use a phrase from another area of law, there may be an irretrievable breakdown of relationships and it may be probable that re-engagement is not practicable. Therefore, the quantum of compensation is probably underjudged in the Bill, given the implications for a whistle blower in certain circumstances, based on United States surveys, for example. The cost to one's career can be extremely severe.

There is in Irish culture and society, including Irish business and political culture, a strong tradition of not only turning the blind eye but also of regarding whistle blowing as actually undesirable and even heinous. Ideas of citizenship, civic purpose, even ethics and ethical behaviour are not deeply rooted in some sections of Ireland's business community and in parts of the political sys tem. The pursuit of the quick buck, the nod and wink, cutting corners, whether in dealing with individuals, the State or customers or clients, is unfortunately too much part of some sections of business and certain parts of political life.

The secret arrangement, the private understanding, the gentle, and not so gentle twist of the arm and even the occasional £50,000 appear not to be unheard of in some areas of commerce and certain parts of political life. All this does not simply describe the separate worlds of commerce and politics. It is also a feature of the interaction between politics and public administration on the one hand and business on the other.

Thankfully this is not Sicily. The space in which corruption germinates is not that between politics and public administration and organised crime. However, our circumstances might actually be argued to be worse in that professedly law-abiding people, bodies and organisations have this underside that we have now spent quite a few years and many tens of millions of pounds examining, investigating and pursuing. The hair on the back of the Tánaiste's neck has been made to rise by what she has uncovered in her investigations.

There are those who say that it is all history, that it is in the past and should be forgotten, that tribunals and forensic examinations are self-flagellation, inappropriate to our successful economy and even unpatriotic. We should, according to this view, get on with things, be positive and put it all behind us.

Those of us who continue to raise issues of accountability are accused of raking over old coals, being engaged in mischief and pursuing private agendas. However, who is really pursuing private agendas and is it all in the past? We have just seen a Taoiseach's adviser having to resign. We have also seen a major benefactor of Fianna Fáil unlawfully demolish a piece of our architectural heritage in the good old style of the 1960s, reducing a streetscape to rubble on a bank holiday weekend morning. We have a Tánaiste who is in danger of disappearing under a mountain of investigations under the Companies Acts. Oireachtas committees are working overtime in conducting hearings and investigations into a range of what might elegantly be called phenomena. We have seen a former public official being arrested coming off a flight from the Isle of Man with a bagful of money. There is more – much more. The Minister for Finance got off the leash on "Questions and Answers" and ridiculed the preoccupation with purging these events. This is a reversion to type for the same Minister who pooh-poohed the RTE disclosures of wrongdoing in the banking system.

Notwithstanding the Minister for Finance's well known attitude, I welcome the Government's response.

The Deputy should not overstate his case.

The political environment demands nothing less. After all, the Taoiseach has promised additional legislation in this area. He has promised to impose codes of conduct on all of us because apparently Fianna Fáil must be protected from itself. If that is the case, this is a valuable contribution along those lines.

I referred earlier to Ms Estelle Feldman who has written about what it means to be a whistle blower It can be a very uncomfortable and costly position. She wrote in an unpublished article:

The extraordinary stress of spending every waking moment in this world, where reality has been inverted, is bound to inflict enormous damage on the individual's health, mental and physical. The longer the fight continues, the greater is the harm experienced and there is no doubt that it is a devastating and dysfunctional experience. The campaign to discredit may result in individuals suffering periods where there is an almost total erosion of self. After all, how many of us could withstand a continuous devaluing of our person and denial of respect for our achievements and still maintain self-esteem or, indeed, sense of self? No matter how many people say "Hang on in there" and "Don't give up", they are not the ones exposed to institutional anger and an organisation that is ready to pounce on the slightest error. Perhaps this is the ultimate paradox for the whistle blower to deal with: condemned on the one hand for highlighting an error that the organisation will not admit to, and condemned on the other for committing far less serious errors forced by the consequences of this self same condemnation.

That partly explains the dilemma of the whistle blower why we should take a supportive role in this regard and provide the statutory safeguards listed in the Bill. I look forward to elaborating on these on Committee Stage.

I welcome the opportunity to address this issue of providing protection to employees who blow the whistle on their employers by reporting to the appropriate authorities dubious practices in the conduct of their business affairs. I fully support any meaningful measures to increase the protection of workers and, therefore, I will not oppose the reference of this Bill to a committee. However, it is clear that many of the provisions of the Bill will have to be examined more closely and will necessitate further consultation with social partners and other interested bodies. These issues can be addressed before we deal with the Bill in committee.

I feel the need for some measure of caution to ensure that this Bill does not become a crank's charter by being used as a vehicle by disgruntled employees to spread rumours about or make false accusations against their employers for their own reasons. I welcome the fact that Deputy Rabbitte does not wish to be associated with a crank's charter.

This Bill is not the first to address the issue of protecting whistleblowers in Irish law. The Deputy will be aware of my own initiative in the context of the new Copyright and Related Rights Bill which proposes protection for whistleblowers in the fight against copyright piracy. This Bill also closely resembles the safeguards provided for the reporters of suspected child abuse in the Protection for Persons Reporting Child Abuse Act, 1998.

In an ideal world, where information and consultation is the norm and the working environment is open and transparent, this legislation would not be necessary. However, human nature being what it is, measures such as those envisaged in the Bill may be necessary as a last resort to ensure that a small minority of employers must answer for certain dubious practices in the conduct of their business affairs. Good employers, however, who respect the practice of information and consultation with their workers need have no fear from the implementation of the measures envisaged in the Bill.

Deputy Rabbitte, who once had ministerial responsibility for labour affairs, will acknowledge that good work has been done in many companies, supported by the social partners, where a culture of trust and greater openness is being actively promoted with considerable success and where consultation and communication mechanisms are being greatly improved and new structures are being put in place. I have witnessed these developments on my visits to many companies, some in the Deputy's constituency. As Minister of State with responsibility for labour affairs, I have advocated and promoted such an approach at every available opportunity. I want to see issues discussed and problems dealt with at workplace level. Much more work needs to be done and the more work that is done the less that will be left for the whistleblower.

The Bill lists a wide range of regulatory bodies to whom disclosures may be made. These include the Central Bank, the Revenue Commissioners, the Garda Síochána, the Environmental Protection Agency and the Health and Safety Authority. The Deputy asked a question regarding the number of regulatory authorities. I will take legal advice on that matter and we will deal with it at a later stage. The relevant Departments and the bodies listed in section 1 will have to be consulted and their views taken account of before the next stage of the Bill.

Section 3 lists the persons to whom protected disclosure may be made. This is a very broad list and needs to be examined in detail. Are all officers in a public body "appropriate officers" under the Bill or is it intended that "appropriate officers" are designated for the purpose of the Bill? These are details which will have to be discussed with the bodies concerned. The section also allows for disclosures "of an exceptionally serious nature" to be made to "some other person". This provision needs to be examined in more detail.

Section 4 provides protection for an employee from civil liability for having made a protected disclosure. This provision will need to be checked to ensure that it provides full civil protection to an employee while ensuring that this statutory immunity will not change in any way the defences already available to persons under common law.

Section 5 protects an employee from being penalised by an employer for having made a protected disclosure. This provision will need checking to ensure that it does not duplicate certain protections that are in place for some time for such employees under the provisions of the Unfair Dismissals Acts, 1977 to 1993.

The unfair dismissals legislation currently provides protection against unfair dismissal for certain employees if their dismissal results wholly or mainly from civil proceedings, whether actual, threatened or proposed against the employer to which the employee is or will be a party or in which the employee was or is likely to be a witness and criminal proceedings against the employer, whether actual, threatened, or proposed, in relation to which the employee has made, proposed or threatened to make a complaint or statement to the prosecuting authority or to any other authority connected with or involved in the prosecution of the proceedings or in which the employee was or is likely to be a witness.

This Bill is mirrors closely the Protections for Persons Reporting Child Abuse Act, 1998. Similar to that Act, this Bill provides protections for persons making certain reports reasonably and in good faith. It provides protection and an avenue of redress for employees against being penalised up to and including dismissal. It covers all employees, including agency workers, with no minimum service requirement, including those at present excluded from the provisions of the unfair dismissals legislation.

At present, if whistleblowing employees are penalised, short of dismissal, they are limited in the action they can take. It would be open to them to refer the matter of the dispute with their employer to a Rights Commissioner under the Industrial Relations Act, 1969. However, as this is in the industrial relations area, the employer cannot be compelled to attend. The employee may then refer the matter to the Labour Court under section 20(1) of the same Act. However, the employee must agree to be bound by the findings of the court which may not be legally enforceable.

The above access under the Industrial Relations Act covers those employees who come within the definition of worker in the Act, which definition specifically excludes certain categories, including most civil servants, teachers etc. and does not include agency workers.

In examining the Bill further, I would propose, in particular, to consider carefully the necessity to guard against false information being given maliciously in the context of the proposed protection of the Bill. While Deputy Rabbitte's Bill offers protection to all employees who make certain disclosures "reasonably and in good faith", it does not appear to address the question of dealing with persons – for example, disgruntled employees or ex-employees – who deliberately and with malicious intent set about providing to any or all of the regulatory authorities named in the Bill, false information in respect of their employer or ex-employer.

Under the Constitution, a person is entitled to the protection of his or her good name. Article 40.3.2. provides that "the State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen". The Supreme Court has held that the State has a duty under this Article by its laws to prevent the infringement of personal rights. While the employee's rights must be protected, the personal rights of the employer must also be protected from unsubstantiated attack.

In examining this issue, I will look at the possible relevance of the whistleblowers provision in the new Copyright and Related Rights Bill. This provision, in section 127 of that Bill, contains a protection for whistleblowers in the interests of encouraging persons to help in curbing copyright infringements and to assist in the fight against copyright piracy. The provision in question ensures the protection of the identity of persons who provide copyright owners with details of where infringing material may be found. However, subsection (5) provides that a person who is wrongfully accused of copyright infringement may obtain damages against an applicant for a court order to seize infringing material, provided malice is proved. It may be desirable to provide for some such safeguard against malicious action in this Bill.

I note in passing that there is no provision in the Bill, as currently drafted, for a statute of limitations. This is something that will need to be addressed. I presume the Deputy would not wish to have the stringent provisions of this Bill applied retrospectively without any regard to time limitation.

A large number of questions need to be considered before this legislation can be enacted. The chief regulatory authorities to which "protected" disclosures may be made, as outlined in section 1, must be consulted. We also need to receive the views of the social partners on this issue. Consultations with the parliamentary draftsman's office will obviously be required. The outcome of these deliberations can be reflected upon on Committee Stage. I have, however, no problem in accepting the spirit in which the Bill is put forward and the principle of protecting employees' rights. I fully support the objective of improving the rights of such employees. As regards future actions, it would be useful if I and my officials could maintain regular contact with Deputy Rab bitte with a view to co-operating to ensure that the resultant Bill contains the best legislative proposals that can be put in place to protect persons from retaliation by their employers for reporting dubious practices to the appropriate authorities.

I welcome the legislation proposed by Deputy Rabbitte. I suppose he would characterise himself as a self-styled whistle blower in relation to our political system. Sometimes, however, he acts as a whistle blower without having the fairness of a good football referee, and he overstates his case. At the end of his speech he was straying into the area of political morality and ethics, suggesting that Fianna Fáil needed to be protected from itself. My party does not need to be protected from itself, nor does it require the protection of Deputy Rabbitte.

I welcome the legislation, however. There is an argument to be made that Dáil Éireann is the proper place for whistle blowers to make allegations that are so dangerous and sensitive, even in a corporate context, that employees themselves will not come forward. There is an argument to be made for limited legislation to provide the kind of protection afforded by the witness protection programme in matters relating to serious criminal activity, and extending that in a limited way to the corporate sector.

We live in a global economy with large corporate players who can quite easily transgress the rights, not just of their employees but also of thousands of customers and other ordinary people. We have seen that in environmental disasters like the one at Bhopal in India. In Nigeria and other areas we have seen companies that have nakedly transgressed the rights of ordinary individuals. It is important, therefore, to introduce this type of legislation domestically, although we have not had such serious problems.

I note Deputy Rabbitte's comments about re-engagement. It would be rather impractical if a whistle blower in a small private company, for instance, were to seek the potential protection afforded by this legislation and then find him or herself back in the company with the same set of characters. It is not entirely impractical, however, to have a process of reinstatement for an employee who blows the whistle. If a whistle blower came forward in the public sector, for example, there might be a change of leadership in that company which would subsequently validate the whistle blower's actions. It is not entirely implausible that a whistle-blowing employee could actually be re-employed by a more enlightened corporate leadership which discovers, albeit in a delayed manner, the wisdom of the whistle blower's points.

When the Minister confers with the social partners it will be important to take this into consideration. As regards whistle-blowing legislation, there should be a clear demarcation between the public and private sectors. There is a vast difference in the type of accountability that applies to both areas. If publicly quoted companies are going about their business in a negligent, criminal or other manner that is invidious to the public interest, they tend to be punished in the long run by the market itself. Markets tend to be good regulators of corporate behaviour. There has been a movement within the global corporate sector towards the idea of business ethics and mission statements as well as ethical statements for senior executives.

The role of the internal auditor in such organisations is important. Like myself, Deputy Rabbitte serves on the Committee of Public Accounts. One of the major frustrations in the early, voluntary phase of the committee's investigation into the banking sector was the fact that AIB's internal auditor, Mr. Anthony Spollen, could not be brought before the committee to give his version of events. When the subcommittee of the Committee of Public Accounts goes into the compellability phase of its investigations I suppose that will become an option. Perhaps the facts will be clarified in relation to the controversial internal report that occasioned such widespread clamour both from the committee and the Oireachtas generally.

Full protection needs to be afforded to a whistle blower who raises an item of genuine public interest where a public or private company is acting in a manner invidious to the public interest. However, this legislation should not stray into the area of criminal activity. Corporations or business people can commit certain categories of criminal offence and these should be separated from whistle blower's legislation. Where there has been criminal activity – some people have referred to the activities in the beef sector over the years – such matters should more properly be included in anti-racketeering legislation. Where a large public or private company is engaged in activity bordering on the criminal, it should be brought under the ambit of anti-racketeering legislation. That is a far more appropriate sanction for business people who stray close to the criminal world.

Whistle blowing has been the very definition of politics over the last two years since I became a Member of this House. In fact, my maiden speech was dominated by that particular subject. We have had a great number of scandals, and what is happening in the political sphere is not always mirrored in the business community. One thinks of the Charles Bowden case and that involving James Gogarty. Deputy Gregory has used the Dáil as a whistle-blowing Chamber in terms of drug pushers. He has played a very positive role in that respect.

We should not lose the run of ourselves, however. We must not come to the view that in some way business, commercial activity or any involvement in trade is a form of licensed thievery. There are people who make a reputation of trying to pretend that the business community or corporate sector generally represents some form of licensed thievery. While I might have included Deputy Rabbitte in that category ten years ago, I would not do so today. The reality is that the position Deputy Rabbitte and The Workers' Party, of which he was then a member, occupied ten years ago is now occupied by Deputy Joe Higgins. He takes that viewpoint but it is not one that is shared by Deputy Rabbitte.

Corporate citizens have rights too and they have to be protected. As the Minister of State clearly said, it is easy for a disgruntled employee to raise false allegations against a business, and it is hard for a business to protect itself against that. For instance, not many public companies could have withstood the welter of allegations which were thrown at the Goodman companies in this very Chamber. Many such companies would have gone down in those circumstances. Their share price would have plummeted and they would have been unable to protect themselves from such allegations, some of which were true but others blatantly untrue. For that reason it is important to distinguish between the public and private sectors.

We must consider consumers' interests. The last few months have been characterised by various stories and allegations against banks and supermarkets relating to – and I am not suggesting it is the case, but it would appear to be – systematic skimming of the customer. This is a dangerous phenomenon and there is a need for proper enforcement to ensure it does not happen. Whistleblower legislation may prove useful in this regard. Few of those who work in the retail sector are protected by a trade union. What rights would an enterprising and resourceful checkout operator have in bringing to public notice systematic overbilling in the company for which they work and still retain their job? A businessman for whom I worked who had Norwegian partners once said at a staff meeting, "This is not a democracy." He was correct in that corporate structures do not lend themselves to democratic activities.

The Bill will be best served if Deputy Rabbitte and the Minister of State, in co-operation with the social partners, devise a strict definition of the public interest. It should only be invoked in limited circumstances, for example, where the public interest is in jeopardy because of the behaviour of a corporate entity. It should mirror in spirit, if not in detail, the provisions available to the Garda Síochána and the courts system under the witness protection programme. In general, the definition should include health issues among others.

In the famous Hoffmann Liroche case, the subject of the dramatic drama documentary "A Song for Europe", a senior executive discovered systematic evasion of European competition law within the drug company which has spent the best part of 15 years trying to remove the stain on its corporate reputation. The individual concerned subsequently won his case in the European courts but had to wait far too long for compensation. His family was ruined as a result.

While the case means there is protection at European level for those who decide to blow the whistle, it places in stark relief the singular problem in this area. Having informed the European Competition Authority of what was happening in Hoffmann Liroche the individual concerned was urged to remain in the company to gather further evidence to back up the case he was making about the systematic breaching of EU competition directives.

That is the dilemma presented by the Bill. What will happen where a senior executive in a large company decides to blow the whistle but does not have the evidence to back up his claims? Will the legislation allow him or her to remain in place and gather evidence on behalf of the authorities? This raises huge justice issues and will have to be carefully monitored. The last thing we want is an unclean corporate sector.

I understand there is similar legislation in the United States where ethical standards are high among publicly-quoted companies, mainly because the financial markets are strong and, unlike those in Europe, can inflict serious punishment and penalties on an errant corporate entity. Irish and European businesses operate within a different ethical environment. We may be evolving towards that model but we will have to tread carefully.

I recall the significant debate on the additional powers given by the Minister for Finance, Deputy McCreevy, to the Revenue Commissioners to investigate serious tax evasion. I suspect this was opposed by my colleague, Deputy O'Flynn. The Revenue Commissioners should have such powers with the caveat that they be invoked only in bona fide cases of serious tax evasion. The same should apply to any legislation dealing with whistle blowers.

In welcoming the legislation Mr. Liam Coughlan of the ACCA made a relevant point about the role of accountants. It is important that the Government consider a stronger reassertion of standards and give recognition to properly constituted accountancy bodies. The accountancy profession is slowly evolving towards a world standard in accountancy practice. While efforts are being made to harmonise standards at European level, there should be a push for a global standard. It is appropriate that accountancy standards be reasserted. The financial controller is the key person on whom it should fall to ensure his or her company is compliant.

The vast majority of employers and employees are decent and hard working. There must be respect and trust between employer and employee. If the relationship sours, it will be impossible to rebuild trust. This legislation may alarm even the most law-abiding employer. As an employer, I have no problem with providing protection in law for an employee who reports sharp practices, but the Bill should not be used to damage a legitimate employer, cause upset or disrupt business. False accusations can be very damaging to a business person or company. There are disgruntled employees who are protected by the Unfair Dismissals Act. I agree with the Minister of State that we should tread carefully. I hope he will consult with all the employer and employee bodies prior to Committee Stage and arrive at a consensus acceptable to both sides.

I will use the word "whistleblower" only once. How will a complaint be made and monitored? Does someone make a complaint? Is the employer notified in writing or does he arrive in the morning to find a team of inspectors outside the gate because the smoke from his chimney is affecting the environment or because he did not place a guard on a machine which is a danger to employees? I wonder what sort of system will be put in place.

The Deputy's time has concluded.

A Leas-Cheann Comhairle, we would be interested in hearing the Deputy's comments for another few minutes.

I thank the Deputy. I am not against legislation which protects employees, but who will protect employers from false and malicious complaints? We have to think this issue out clearly and put in place a system of checks and balances before anyone enters an employer's premises or before an employer is embarrassed by false accusations of wrongdoing. The Garda Síochána, the Revenue Commissioners and the Health and Safety Authority have adequate powers to impose a regime of checking health and safety procedures in businesses, if they would only use them. The Garda Síochána has its own powers and ways and means of entering businesses.

I welcome the Minister of State's words of caution. There are bad employers who engage in sharp practices but they are few in number. I have been surprised that these employers are not just those who have two or three employees but some are large corporate bodies. However, before passing this legislation we should consult widely and look at all aspects of this issue and the importance of protecting the good name of employers and employees.

I would hate to think that all employees would be treated badly because one employee falsely reported an employer, or that employers would not trust any employee. We do not want a repeat of George Orwell's1984.

I wish to share my time with Deputy Perry.

Is that agreed? Agreed.

I commend the Labour Party on introducing this important legislation. This Bill is more complex than it seems as shown by this debate and we must be careful in how we proceed. This is a start and it is healthy that all sides have agreed to work together to bring forward the best legislation possible. One of the reasons I gave way to Deputy O'Flynn was that I wanted to hear the employers' side of the argument.

This is important and complex legislation with potentially far-reaching consequences. The Bill is almost identical to legislation introduced in Britain. I have a little difficulty with the use of the word "whistleblowers" in the title as it may diminish the importance of the legislation. In Britain the legislation was called the Public Interest Disclosure Act which lends more weight than "whistleblowers". However, we can deal with that issue later as the title may be a little disarming.

I would like to look at some of the broader issues. An employee is almost on his or her own if they discover something wrong, a legal problem, a problem which poses a health risk to other employees or the public, or the other scenarios listed in the Bill. At present that employee has no one to turn to for advice. Perhaps this legislation should include some supports for employees so that they can obtain confidential, legal advice as to whether they should progress further a complaint. This is an important issue as it would provide safeguards such as those mentioned by the Minister of State and Deputy O'Flynn. It would be better if an employee could be guaranteed that the complaint had substance by obtaining the advice of a third party. The Minister of State should consider setting up such a confidential mechanism.

Other jurisdictions have whistle blower hotlines by which people can telephone and say "I am working in a company in which this or that is happening; do you think I should go further with this complaint?" These supports should be available throughout the entire process. There is no point in passing this kind of legislation if the employee is left hanging. This issue may not have been mentioned in the debate and, perhaps, it should be examined.

Deputy Rabbitte stated that this legislation throws up many thorny, ethical questions and alluded to serious personal consequences for employees. I agree with the Deputy's assertion that an employee may or may not find it easy to be reinstated, perhaps giving rise to the issue of compensation. Who adjudicates in such cases of compensation? An employee who makes a complaint may not be able to continue to work in the company involved. The law stipulates that they can continue to work there but in practical terms they may be unable to do so because people may not talk to them. One cannot force people to talk to someone and it is not against the law not to do so. How does one deal with this situation?

The law may stipulate that an employer must give the employee his or her job back. The employer may deal with the employee in a civil manner but that is no good if the employee's life is a misery. The employee will have done a public good by exposing fraud or some wrong and gets to keep his or her job. However, they may not be able to stay in that job and it may be difficult to prove victimisation.

I commend the Minister of State on dealing with the issue of bullying in the workplace earlier this year, and this issue is related. It is a nebulous and difficult area with which to deal. On Committee Stage we must take a lot of time dealing with these real and human issues. We may not easily be able to legislate for them but they will have to be tackled and dealt with.

I wish to take a risk and push the boat out a little further. Why should any employee who sees that something is wrong take a risk by blowing the whistle? What is in it for them? If one is working in a good job with money in one's pocket and good prospects, why should one bother to blow the whistle if one sees something wrong? We are going some of the way in this legislation by ensuring that people will not be victimised, up to a point. However, perhaps we should go a step further and include a provision to encourage people to blow the whistle. This is going further than Deputy Rabbitte suggested by introducing this legislation but I am raising this issue for discussion. We do not want to encourage people to become cranks or to go down the road of getting their own back. We must take on board what Deputy O'Flynn said. It is important to consider how we can protect employers in this regard. Confidentiality is vital. Once the genie is let out of the bottle in terms of an alleged difficulty in a company being in the public domain, it could create difficulties for that company until the matter is cleared up. I urge the Minister of State to consider whether a whistleblower could take his or her complaint to an independent confidential body until it is certain there is aprima facie case to be answered. We must follow that course of action.

I note the Bill states that employees are to be defined in the same way as in the 1984 Act. This would exclude many people, including students. If a student in a third level institution discovers something is radically wrong, which could be the case, will he or she be protected on blowing the whistle? This area is covered in the equivalent British legislation and we should also examine this aspect.

When this legislation is passed in whatever amended form, it is vital the public should be educated about its rights in this regard. I call on the Minister of State to educate employees and employers as to their rights and responsibilities if they set about making disclosures about corporate or Government misconduct, environmental protection measures that might be required or health and safety violations. Legislation we pass often seems to disappear without trace. We should do more to inform the public about its rights and responsibilities with regard to the legis lation that is passed. Such education should be part of the support mechanism for the whistleblower.

We are debating this legislation because we want to root out and prevent fraud and damaging and dangerous actions. We want to protect people of conscience who blow the whistle if they discover the company for which they work or a Government agency or Department is engaging in questionable action.

I commend Deputy Rabbitte for ensuring that, in as far as is possible, the media would not be included at the initial stages. I commend the media for the role it is plays in blowing the whistle. Those working in the media are society's whistleblowers. As the Bill suggests, perhaps it is better to put measures in place to formalise and legalise whistleblowing.

I compliment Deputy Rabbitte for heightening awareness about this matter. Like Deputy Stanton, the Bill would be better if it had a different title. The alarmist connotation associated with term "whistleblower" might prove a deterrent for some people. We must be careful to uphold the principle that people are innocent until proven guilty. It is important to ensure there is support for employees and it is equally important to ensure there is support for employers. One is either honest or dishonest in business. If one is dishonest, one should not be in business.

We must be careful with regard to employees. While there are some fantastic employees, there are others who are virtually unemployable. Once they get a job, they can enjoy much protection. In some cases difficulties can arise because of a personality clash and there can be a build up of tension. We must have fair procedure in this regard and it is important that is enshrined in the legislation. We must also be careful with regard to the press.

As previous speakers have said, business people, employers and employees invest a great deal in companies. Ethics in public office and in business is the benchmark of success and it is the only way forward.

Irrespective of whether there is a breach of the health and safety legislation, a problem concerning ISO 9000 or another irregularity, there should be a line of communication within a company to enable an employee, who identifies that something is radically wrong, to bring it to the attention of management and, if the matter is not dealt with effectively, to follow another procedure to ensure it is dealt with.

The Bill refers to an "appropriate officer" who may be a member or officer of the Central Bank, the Office of the Comptroller and Auditor General or the Data Protection Commissioner among others. A large of volume of legislation deals with the rights of employers, employees and others but a good deal of it is not used. We must be careful about enacting new powers without using the powers already in place to protect the rights of employers and employees. Those powers should be exploited fully.

There were two major aspects to the Freedom of Information Act, which came into effect last year. It gave individuals the right to get access to personal information and it imposed a duty on public bodies to provide such information. We are more interested in the latter aspect because it has a significant impact in terms of work on information providers. However, some of the public comment about the operation of the Act focused on the relatively small number of queries under it.

It is important that there should be an awareness of what is correct in business. There was a recent experience of banks that engaged in underhand dealings in terms of hidden charges. It is important that controls are put in place to protect the consumer, but it is equally important that measures are in place to deal with staff members of a company who are aware of wrongdoing and condone it. It would be unique if only one or two people were aware of such dishonesty because I believe such dishonesty may be an agreed policy.

As a business person, I would like to think that the majority of business people I know have the highest integrity. It would be very unwise for business people, whether they work in financial institutions or elsewhere, not to adhere to the highest standards. While I welcome this legislation, if an employee gets the protection of the State it may not be possible to sack him or her. There are, however, other ways of ensuring that it would be impossible for an employee to remain within a company. I would like to think that all employers and employees have mutual respect for each other and that if employees were aware of a wrongdoing within a company they would make it public knowledge.

We must be careful to ensure the provisions of the Bill are not used for the wrong reasons. The media has been very effective to date in making public major anomalies. The Tánaiste has initiated 13 or 14 inquires which elicited information that should be in the public domain. All of them have been quite effective and this will do the State good as we face the new millennium.

While I welcome this Bill, we must be careful, as the Minister said, to ensure it protects everyone involved. The type of information provided for under the Bill would include disclosures supporting an allegation that a criminal offence has been or is likely to be committed, a person has failed to comply with legal obligations, health and safety is being endangered, the environment is being damaged or a miscarriage of justice has occurred. All of these issues are important. However, there is a great deal of existing legislation which should be integrated with proposed legislation.

Debate adjourned.