That Dáil Éireann,
—recalling calls made by the Irish Nurses Organisation, the Irish Bank Officials Association and the Irish Airline Pilots Association, among others, for comprehensive statutory protection for employees and others who blow the whistle on significant illegal and unacceptable practices that can otherwise become established and remain unidentified over long periods, even by those charged with conducting inspections;
—bearing in mind the recommendation of the Standards in Public Office Commission that a whistleblowers' charter be introduced for local government employees; and
—having regard to the findings and recommendations of the Lourdes Hospital inquiry;
—the Whistleblowers Protection Bill 1999 was introduced on 24 March 1999, had its Second Stage on 15 and 16 June of that year and was referred to the Select Committee on Enterprise and Small Business;
—on 30 March 2000, the then Minister for Finance told the Dáil, in a statement on the CPA Report on the DIRT inquiry, that: "The sub-committee further recommended that a scheme and procedure for bank officials to report suspected wrongdoing be introduced. I understand that the Tánaiste and Minister for Enterprise, Trade and Employment will be bringing forward proposals in this area in the near future. These are expected to take the form of amendments to the Whistleblowers Protection Bill 1999 which was initiated in the Dáil last year as a Private Member's Bill";
—on 8 November 2000, the then Minister of State at the Department of Enterprise, Trade and Employment with special responsibility for labour, trade and consumer affairs, confirmed that the Bill was one of a number of upcoming pieces of legislation currently being developed within his area of responsibility;
—on 4 December 2000, the Taoiseach wrote, in an article inThe Irish Times setting out his Government’s proposals for a package of measures to combat corruption, that “I am announcing a set of proposals which meet the need for modernisation and transparency, while at the same time allowing for the continuing development of a fully inclusive and dynamic body politic. These proposals include the introduction of legislation to protect whistleblowers”;
—the annual report of the Department of Enterprise, Trade and Employment for 2001 stated that: "The Whistleblowers (Protection) Bill 1999, which protects employees from civil liability or penalisation by their employers for disclosing to other persons information relating to serious wrongdoing, was extensively amended. In 2001 extensive amendments were prepared based on consultations with all Government Departments and have now been forwarded to the Office of the Parliamentary Counsel for drafting";
—although the Bill lapsed on the dissolution of the 28th Dáil on 24 April 2002, it was by order of 18 June 2002, restored to the Order Paper, on the motion of the Government Whip;
—the Bill also featured in a report to the Government of the high level group on regulation, published in November 2002, under the heading "Phase 2 Reforms", being those reforms recommended by the OECD the implementation of which was envisaged for the medium term; and
—the Oireachtas Joint Committee on Finance and the Public Service, in its report of June 2005 on commercial bank charges and interest rates, stated that whistleblowing should receive statutory protection and recommended unanimously that the Whistleblowers Protection Bill 1999 should be progressed;
conscious of the subsequent inexcusable delay in the consideration of this Bill, resolves that, notwithstanding anything in Standing Orders:
—the Order of the Dáil of 18 June 2002, to the extent that it orders that the Whistleblowers Protection Bill 1999 be considered in committee of the whole Dáil, be discharged and the Bill be referred to the Select Committee on Enterprise and Small Business pursuant to Standing Order 112 and paragraph (1)(a)(i) of that committee’s Orders of Reference,
—that it be an instruction to the select committee that proceedings on the Bill be commenced as the next immediate item of business of the committee and be progressed with all due expedition and that, immediately after the conclusion of those proceedings, the committee shall, in accordance with Standing Order 85, send a message to the Dáil regarding the completion of its consideration of the Bill. Provided that, if those proceedings are not earlier concluded, the select committee shall report back to the Dáil its progress on those proceedings on 1 June 2006.
I wish to share time with Deputies Hogan and McManus.
In debating this motion in the wake of the Neary affair, the Dáil again returns to the need for openness, transparency and accountability in public life. The evidence of its years in office has persuaded me that the Government fears those concepts almost as much as it despises them. It knows that it must pay lip service but its impulse is to renege, to side-step, to prevaricate and to dissemble.
Developments may take place in other countries and reforms may sweep through the most hidebound and bloated of international institutions but the Progressive Democrats and Fianna Fáil see no need to change the way we do our business here. Almost 16 years ago, the House of Commons commission on citizenship, in its final report published in 1990, concluded that:
The challenge to our society in the late 20th century is to create conditions where all who wish can become actively involved, can understand and participate, can influence, campaign and whistleblow, and in the making of decisions can work together for the mutual good.
As long ago as September 2000, the OECD was able to point out, in a policy brief on building public trust, entitled Ethics Measures in OECD Countries, that:
Reporting misconduct by public servants is either required by law and/or facilitated by organisational rules in two thirds of OECD countries. A growing need to provide protection for whistleblowers in the public service is also visible across OECD countries. Almost half of these countries offer general protection mainly in their public service framework, where the most commonly provided safeguards are legal protection and anonymity.
In its guidelines for multinational enterprises, written by the member states, the OECD stated that:
Safeguards to protectbona fide whistleblowing activities are also recommended, including protection of employees who, in the absence of timely remedial action or in the face of reasonable risk of negative employment action, report practices that contravene the law to the competent public authorities.
In Washington DC last month, the Vaughn report, commissioned by the World Bank as a blueprint to modernise its inadequate whistleblower protection policies, was released. The report was drawn up by Robert Vaughn of the American University Law School and it incorporates best practices that have already been adopted by the United Nations — approved by the Organisation of American States to implement its inter-American convention against corruption — and that were enacted last autumn as US policy to strengthen anti-corruption efforts at all multilateral development banks. The United Nations spent last year involving its staff, with advice from external NGOs, in an extensive rewriting of its whistleblower policies. The UN's new policies took effect on 1 January.
The Vaughn report outlines 22 major recommendations for the World Bank, including that whistleblower protection should extend to all staff, including former and temporary employees, consultants and contractors. Employees must have the ability to report directly to multiple authorities, including at board level. Criteria for protected disclosures and prohibited retaliation, based on existing and tested international norms, must be standardised. Due process rights must be accessible and enforceable and, in the absence of a credible and binding internal adjudicatory alternative, access to an external adjudicative body is necessary.
Meanwhile back in Ireland, the Government has been doing that at which it is best — absolutely nothing. There was some genuine reason for hope when the Government gave its official reaction to my Bill on 15 June 1999. The Minister of State at the Department of Enterprise, Trade and Employment, Deputy Kitt, said, "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". He commented that, 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. He continued:
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.
He concluded by saying:
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 Rabbitte 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 can inform the House that neither the then Minister of State, Deputy Kitt, his senior Minister, their successors nor any of their officials have had or maintained any sort of contact with me on this Bill, regular or irregular, from that day. The Minister may well yawn.
In welcoming the Bill, Deputy Conor Lenihan said:
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 happen 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.
The then Minister of State, Deputy Cullen, concluded the debate by saying, "The Government is committed to the maximum co-operation on this Bill to ensure we have the best possible legislation on this important issue". That, of course, was before the general election.
Perhaps ominously, the then Minister of State, Deputy Cullen, compared the Bill in importance to the Freedom of Information Act, which he described as "the most far-reaching legislation as regards dealing with the public sector", which "marked an important first step towards a new era of openness in Government and in public affairs". He described my Bill as contributing further to the culture of openness and transparency. We know what the Government did to freedom of information once it became tired of its temporary little commitment to openness, transparency and accountability.
On 16 June 1999, the Bill was sent to the Select Committee on Enterprise and Small Business but the proceedings were delayed to give the Tánaiste and then Minister for Enterprise, Trade and Employment, time to consider the Bill in detail and to propose any necessary amendments. This was understandable and we waited in patience for the results of her deliberations. In the interim, as the motion recites, the Irish Nurses Organisation, the Irish Bank Officials Association and the Irish Airline Pilots Association, among others, called for comprehensive statutory protection for employees and others who blow the whistle on significant illegal and unacceptable practices that can otherwise become established and remain unidentified for long periods, even by those charged with conducting inspections. The Standards in Public Office Commission has recommended that a whistleblowers' charter be introduced for local government employees.
Government Ministers and the Taoiseach continued to give the impression that work was ongoing to strengthen and improve the Bill. On 30 March 2000, the Minister for Finance told the Dáil, in a statement on the Committee of Public Accounts report on the DIRT inquiry, that a scheme and procedure for bank officials to report suspected wrongdoing would be introduced by way of amendments to the Whistleblowers Protection Bill. On 4 December 2000, the Taoiseach wrote, in an article inThe Irish Times setting out his Government’s proposals for a package of measures to combat corruption:
I am announcing a set of proposals which meet the need for modernisation and transparency, while at the same time allowing for the continuing development of a fully inclusive and dynamic body politic. These proposals include the introduction of legislation to protect whistleblowers.
The annual report of the Department of Enterprise, Trade and Employment for 2001, referring to the Whistleblowers Protection Bill, stated:
Extensive amendments were prepared based on consultations with all Government Departments and have now been forwarded to the Office of the Parliamentary Counsel for drafting.
While the Bill lapsed on the dissolution of the 28th Dáil on 24 April 2002, it was restored to the Order Paper on the motion of the Government Whip after the general election. The Bill also had its supporters in the high level group on regulation, which reported to the Government in November 2002 on the timetable for implementation of regulatory reforms that were recommended to this country by the OECD and had been accepted by the Government.
Last June, Deputy Seán Fleming produced a report from the Joint Committee on Finance and the Public Service on commercial bank charges and interest rates, stating whistleblowing should receive statutory protection and recommending unanimously that the Whistleblowers Protection Bill 1999 as tabled by the Labour Party should be progressed. What has happened? The truth is that the Taoiseach and the Tánaiste systematically misled the Dáil on the reasons the Government has blocked further progress on this Bill. I have continually questioned the Taoiseach, the Tánaiste and the Minister for Finance on the Order of Business and was told by each that significant legal and constitutional issues had arisen and the legal advice was that the Government should not proceed with the Labour Party's Bill.
Under pressure from me on 15 June last year, the sixth anniversary of the Bill passing Second Stage, the Tánaiste told me she would ask the line Minister to give me the legal advice. When I still had not received the promised legal advice, I again raised the matter with the Tánaiste on 30 June and she was forced to admit that there was, in fact, no legal advice. She stated: "It was not actually the Attorney General's advice but official advice on the difficulties that would arise if the whistleblowing legislation applied to companies outside Ireland with a subsidiary in Ireland".
We now know the Dáil has been systematically misled by the most senior members of the Government and that the real reason the Government reversed engines and decided not to proceed with important legislation it had supported on Second Stage is that it was afraid the legislation might offend some multinationals. The multinational companies have had extensive practical experience of dealing with whistleblower legislation in many other countries in the west and have learned to live quite comfortably with it. However, if they can persuade this Government to impose much poorer standards of corporate governance than they are used to elsewhere, they would be foolish not to throw their weight around.
Our motion requires action. It requires that the Bill be referred to the Select Committee on Enterprise and Small Business, that proceedings on the Bill be commenced as the next immediate item of business of the committee, be progressed with all due expedition and that the select committee report back to the Dáil its progress on those proceedings by 1 June 2006.
As to the merits of the Bill itself, I make no apology for repeating some of what has been said and agreed by the House. The purpose of the Bill is to challenge and help transform the traditional culture of secrecy that surrounds the conduct of business and public affairs in this country. From the Irish Blood Transfusion Service to the beef industry, whether it's Army deafness, Dublin planning or, more recently and most devastatingly, Our Lady of Lourdes Hospital's maternity wing, the questions are the same — did nobody know or suspect, is it credible that nobody in the system ever stumbled across wrongdoing and why was nothing reported earlier? Regarding illegality and malpractice in our financial institutions, did nobody in these institutions know what was going on? In answer to all of these questions, most right-thinking people will believe that people did know or had suspicions. However, the consequences for whistleblowers in terms of careers and livelihoods are such that it is often easier to turn a blind eye.
We do not have a developed sense of corporate morality or personal responsibility in the public sphere. It is always someone else's job to shout "Stop". We do not like cynical troublemakers and naysayers and we also have contempt for busybodies, squealers and tattletales. However, few would disagree that we all have a duty of loyalty to the public trust, the law and our communities. That is the heart of our duty as good patriotic citizens. Therefore, the Labour Party Bill proposes a set of new statutory rights for employees, whether in the public or the private sector, to report and transmit information they receive of illegality or malpractice 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 the Bill, any employee who blows the whistle on fraud or malpractice will be entitled to protection against dismissal or any other sanction that 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 would radically challenge the culture of secrecy that surrounds Irish business and public life. It would provide legal protection to employees who have good reason to report dubious practices to regulatory authorities such as the Garda, the Central Bank or 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 current legal position actively discourages individuals from reporting what they believe to be serious offences or major failings on the part of their employers, many of which have public interest implications. The Whistleblowers Protection Bill 1999 is designed to give legal protection against persecution and discrimination to workers who find themselves in such situations. Many abuses occur in Irish life due to the fact that no one shouted "Stop". This is just as true in the business world as has been proven — more radically and tragically — to be true in the area of institutional care. This Bill will challenge this culture.
Primarily, the Bill supports individuals who make disclosures to relevant authorities that 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 doing of their jobs. However, recent revelations regarding abuses in the banking sector, for example, 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 individuals who provide such information are not victimised or discriminated against in the wake of their disclosures. This is an employment protection and public interest Bill, designed to secure rights for any worker, whether on a FÁS course, working in a hospital, a blood bank, a shopping store, a beef factory, a financial institution or a Department, to refuse to be complicit with improper decisions taken by his or her management superiors.
I share the genuine public concern at the failure of our regulatory institutions, such as the Revenue Commissioners and the Central Bank, to crack down on glaring abuses of the system. The Labour Party is determined that the safeguards of the State put in place to ensure that decent standards prevail in public and commercial life, must work and be seen to work. The Bill will greatly assist in this process. It supports the individual against the might of major companies and institutions, both public and private. It upholds the rights of individuals to draw attention to abuses that affect us all. It is a Bill worthy of the support of all Members of the Oireachtas, which I had believed it received on the last occasion.
I again acknowledge the ground-breaking work done by my former colleague, Deputy and Minister of State, Ms Eithne Fitzgerald, on the issues of freedom of information, ethics legislation, the Electoral Acts and so on. As I pointed out, we are not the first Legislature to address this issue. It is noteworthy that in the United Kingdom, a country with a Government and establishment almost as notoriously secretive as our own, the Public Interest Disclosure Act 1998 — ironically introduced as a Private Member's Bill — was adopted by the Government and enacted last year. Its passage was supported by the Institute of Directors and the Confederation of British Industry. Why can the Department of Enterprise, Trade and Employment not move on?
I emphasise that this Bill borrows from the British legislation in one important respect. Its purpose is to provide protection from civil liability to employees who make disclosures in categories listed in the Bill as long as those disclosures are made reasonably and in good faith. I stress the words "reasonably" and "in good faith" because it is important to 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. Many Members of the House will agree 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 will also 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.
It seems clear that accepting the Bill on Second Stage was preferable to the embarrassment of voting it down but there was never any intention of actually implementing it. The Government thought it better to put on an outward show of agreement, then send the issue into a departmental committee, where it would die of old age.
Although this 1999 Bill probably holds some form of parliamentary record as the longest standing Bill on the Dáil's Order Paper, it will take a change of Government to see it passed into law. If that is what it takes, that will happen.