Whistleblowers Protection Bill 1999: Leave to Withdraw.

I move:

That, notwithstanding anything in Standing Orders, that 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Whistleblowers Protection Bill 1999 be considered in committee of the whole Dáil, be discharged and that the Bill be withdrawn.

As Members will recall, the Whistleblowers Protection Bill 1999 was the subject of a Private Members debate in this House on 7 and 8 March last. During the course of the three hour debate, my colleague, Deputy Martin, Minister for Enterprise, Trade and Employment, and l both outlined in detail to the House the steps the Government had taken since 1999 on Deputy Rabbitte's Private Members Bill from June 1999. I take this opportunity to advise the House yet again of these steps and the reasons the Government is withdrawing the Whistleblowers Protection Bill 1999 from the Order Paper of this House and addressing the important and sensitive issue of whistleblowing on a sectoral basis in the future.

The Whistleblowers Protection Bill 1999 was introduced in the Dáil by Deputy Rabbitte on 24 March 1999. The Government, at its meeting on 15 June 1999, decided to "accept the Bill, in principle, at Second Stage, subject to indicating to Deputy Rabbitte that amendments will be proposed at Committee Stage by the Tánaiste and Minister for Enterprise, Trade and Employment following consultations with the interested parties and following on the advice of the Attorney General."

Arising from that, my colleague, the Government Chief Whip and the then Minister of State with responsibility for labour, trade and consumer affairs, Deputy Kitt, announced in the Dáil on 15 June 1999 that he fully supported any meaningful measures to increase the protection of workers and, therefore, would not oppose the referral of the Bill to committee. He also indicated that many of the provisions of the Bill would have to be examined more closely and would necessitate further consultations with the social partners and other interested bodies. The Bill passed Second Stage in the Dáil on 16 June 1999 and was referred to the Select Committee on Enterprise and Small Business.

In July 2000, following examination of the Bill, the Department, in consultation with the Office of the Parliamentary Counsel, circulated a draft memorandum for Government to all Departments. As a follow-on from observations received from Departments, a total of 45 amendments were prepared by the Department. The proposed amendments, if adopted, would have resulted in more comprehensive legislation, which would provide protection from civil liability or penalisation during their employment for employees, including agency workers, who make — to the specified persons or appropriate officers of public bodies, so designated for the purposes of the Bill — certain protected disclosures of information obtained in the course of their employment, as distinct from making certain disclosures about the conduct of the business and affairs of their employers.

At its meeting on 27 July 2001, the Government approved the re-drafting and amending of the Whistleblowers Protection Bill 1999 on the lines of the 45 draft amendments, subject to further consideration being given to the implications for the Central Bank and related issues and the breadth of the grounds, in terms of future behaviour, on which the terms of the Bill could be invoked. The Government amendments raised a number of detailed and complex issues which, according to the advice of the Office of the Parliamentary Counsel, would require substantial re-drafting of the Bill.

These related to issues such as the inclusion of the Central Bank under the Bill. Clarifications were sought that the terms "employer" and "employee" did not include the Central Bank and its staff, the issue being that the bank's confidentiality regime was derived from obligations regarding professional secrecy imposed under EU law. It would be necessary to avoid any possible conflict with the Central Bank Acts and/or EU law, as a series of legal advices were received from senior counsel and the Attorney General's office which indicated inconsistencies with certain EU commitments relating to conditions for the disclosure of information.

There was also the issue of the provision of the protections of the Bill to public servants. In particular, issues arose relating to the operation of the Official Secrets Act 1963. In 2002, the Office of the Parliamentary Counsel subsequently indicated that the proposed Government amendments would need further consultations, particularly with regard to: the protection of trade-secret type industrial processes, particularly where they overlap with intellectual property rights, as the Bill should not create a grey area between what matters are to be included in "whistleblowing" and the protection of such intellectual property rights; clarification of the nature of the protections that would be required under the Unfair Dismissals Acts 1977 to 1993, to employees who "whistleblow" reasonably and in good faith; and the Official Secrets Act 1963.

In addition, the Attorney General's office also provided further complex legal advice relating to the obligations on designated bodies and the Central Bank of Ireland to report certain suspected money laundering activities to the Revenue Commissioners. Further progress on re-drafting the Bill was overtaken by the dissolution of the Dáil in April 2002 and the general election in May 2002. The Government decided in June 2002 to restore to the Dáil Order Paper the 1999 draft Bill as part of a number of draft legislative measures circulated by the Chief Whip on 10 June 2002. This was achieved on foot of a motion taken in the House on 18 June 2002. The Bill was placed on the Order Paper of the House and became part of the Government's legislative programme, which is a commitment to legislate.

Progress on the re-drafting of the Bill was raised on a number of occasions in the House, either on the Order of Business or in a number of parliamentary questions. In addition, the Taoiseach's private office wrote to Deputy Howlin on 5 February 2003. The Taoiseach's private office also contacted Deputy Howlin on the issue on 21 November 2003.

ln light of the complexities encountered, the possibility of continuing to address the issue on a sectoral basis was looked into as such an approach began to look more effective and practical. Following consideration, this approach was conveyed to the House on the Order of Business on 19 May 2004 by the then Minister for Defence, Deputy Michael Smith, who stated:

It is now considered, on reflection, that the provision of statutory protection for whistleblowers on a sectoral basis might provide a better and more focused approach to dealing with this issue as in the case of section 4 of the Protection for Persons Reporting Child Abuse Act and section 50 of the Competition Act. ln such circumstances, proceeding with the 1999 Bill is not viewed as a priority. The matter may be addressed at some future time when priorities in terms of the Government's legislative programme have been implemented.

The approach — that Deputy Rabbitte's Bill was no longer a Government priority — was repeated by the Taoiseach on the Order of Business on 2 November 2004 when he stated: "In such circumstances, proceeding with the 1999 Bill, as it is five years old, is not viewed as a priority. It may be addressed at some future time when the priorities of the legislative programme will be implemented".

The sectoral approach was also repeated on a number of occasions during 2004 either on the Order of Business or in replies to a number of parliamentary questions in the House. Throughout this period, the Whistleblowers Protection Bill 1999 continued to be retained on the Government's legislative programme. However, in the light of further exchanges on the Order of Business on 15, 16 and 30 June and on 1 July 2005, and in replies given to parliamentary questions on the issue on 28 September 2005, 2 November 2005 and 6 December 2005, the Minister, Deputy Martin, and I believed that it was necessary to bring clarity to this issue.

Over recent months, we have both been giving consideration to formalising a sectoral approach to the issue of "whistleblowing". I will again outline to the House what I mean by this and why I believe it is the best approach. A sectoral approach will enable the speedier introduction of relevant measures, appropriate to different sectors, to address the important issues identified in Deputy Rabbitte's original Bill. However, as already indicated, the extensive work on preparing official amendments to the Private Members' Bill raised a number of complex legal questions relating to: inclusion of the Central Bank having regard to the bank's confidentiality regime; the obligation on designated bodies and the Central Bank of Ireland to report certain suspected money laundering to the Revenue Commissioners; the Official Secrets Act 1963 and its implications for civil servants; and the protection of trade-secret type industrial processes. A single all-encompassing legislative proposal on "whistleblowing" would be complex and cumbersome, take considerable time to enact and would not be user friendly to the general public.

The benefits of the suggested sectoral approach can be evidenced by legislative developments in the period since Deputy Rabbitte's Bill of 1999. The issues raised in the context of the original Bill are so important as not to allow for postponement until perfect and comprehensive legislation can be devised. Accordingly, both the Minister, Deputy Martin and I, as well as our ministerial colleagues have been availing of opportunities to include a suitable "whistleblowing" provision in draft legislation, where appropriate. As indicated earlier, while still seeking to solve drafting problems in the original Bill, the Government included suitable provisions in a series of legislative measures adopted by the House in recent years. These legislative measures were the subject of lengthy discussions during their passage through the Houses, during which the Opposition would have had the opportunity to raise any concerns its Members might have had about workers who might want to ''whistleblow'' in good faith.

Section 4 of the Protections for Persons Reporting Child Abuse Act 1998 provides immunity from civil liability to persons who report child abuse reasonably and in good faith. Under the Ethics in Public Office Act 2001, the Standards in Public Office Commission is empowered to investigate complaints about alleged contraventions of the Ethics in Public Office Act.

As far as complaints are made,inter alia, by civil servants, against other civil servants, the Ethics in Public Office Acts 1995 to 2001 provide at section 5(1) that “where a person makes a complaint to the Commission in good faith, no cause of action shall lie against the person and no disciplinary action shall be taken against him or her as a result of reporting his or her concerns to the Commission”. Section 5(4) provides that a person who takes disciplinary action against a complainant in this context will be guilty of an offence and liable to a substantial fine.

Section 50 of the Competition Act 2002 provides that a person shall not be liable for damages in respect of the communication, whether in writing or otherwise, by him or her to the Competition Authority. The 2002 Act also provides that an employer shall not penalise an employee for having formed an opinion of the kind referred to in section 50(1) of the Act and communicated it, whether in writing or otherwise, to the authority if the employee has acted reasonably and in good faith in forming that opinion and communicating it to the authority.

Section 27 of the Safety, Health and Welfare at Work Act 2005 provides for protection against dismissal and penalisation of employees who, in good faith, take steps to protect themselves or others in a workplace situation.

Section 124 of the Garda Síochána Act 2005 provides for regulations providing for the establishment of a charter containing guidelines and mechanisms to enable members of the Garda Síochána or other persons to report in confidence allegations of corruption and malpractice within the Garda Síochána.

The Government decided on 7 March 2006 to formalise the sectoral approach as part of its policy on addressing the issue of whistleblowing by requiring Ministers, in consultation with the Office of the Parliamentary Counsel, with legislation either on the Government's legislative programme for the current Oireachtas session or currently in the course of preparation to include, where appropriate, whistleblowing provisions therein. Such an approach also acknowledges situations where the provision of whistleblowing provisions may not be appropriate.

As a consequence of the Government decision and as part of continuing this sectoral approach, I moved a Government amendment on Committee Stage of the Employment Permits Bill 2005 on Thursday, 9 March, to include a new section 25, entitled "Penalisation of Employees", to provide for whistleblowing provisions in that Bill. This amendment provides important protections to employees from overseas who act to report wrongdoing by employers to either a member of the Garda Síochána or the Minister in respect of the new Act or the earlier Employment Permits Act 2003. The amendment is along the lines of the provisions of previous sectoral legislation as outlined earlier and was agreed without discussion.

I have attempted to give the House some flavour of the exceptional legal difficulties encountered in seeking to give legislative effect to the provisions in the original Bill. I have no reason to believe that these problems can be satisfactorily resolved in the near future, despite the existence of goodwill and hard work on all sides.

The important issues that gave rise to Deputy Rabbitte's original proposal have not diminished in relevance. While appropriate provisions to address these issues will continue to be included in a number of statutes, there can be no sense of complacency. It is imperative that we continue to ensure that persons providing sensitive information in the public interest are provided with appropriate safeguards.

As the House considers each Bill that comes before it, it will have an opportunity to decide on the whistleblowing safeguards most appropriate to different sectors and to the particular needs of persons working therein. The sectoral approach also means that future measures in this area will be informed by the experience of earlier measures already on the Statute Book.

All Deputies have a role to play in this regard and the Government will certainly be prepared to consider contributions to this end from all sides of the House. I am convinced that the sectoral approach offers the best prospect of effectively addressing these important issues in a timely and effective manner.

Against this background and on behalf of the Government, I ask the House to support it in its decisions to proceed on a case-by-case basis with appropriate whistleblowing provisions, as either enacted by the House or currently before it, rather than await the possible resolution of wider complex legal issues. I also ask the House to note that the Government's approach will continue to provide a series of opportunities for Members to contribute to the formulation and enactment of appropriate whistleblower provisions on a sectoral basis. Finally, I ask the House to endorse the Government's intention to continue to pursue the sectoral approach which will supersede the all-encompassing approach proposed in Deputy Rabbitte's Private Members' Bill of 1999.

Under the sectoral approach, I commend the motion to the House 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 that the Bill be withdrawn.

On behalf of the Fine Gael, I thank the Labour Party for its exemplary Whistleblowers Bill, which was supported by my party. We are pleased that the Government accepts the need for this legislation.

I hardly need to present any evidence to the House on the need for whistleblower legislation because the matter has been in the public domain for such a long time. Dodgy deals in high places, corrupt officials with too much power and shady goings-on in our most trusted institutions are common revelations in the media. During previous debates on this legislation, Fine Gael made the point that it should include some supports for employees to obtain confidential legal advice as to whether they should proceed further with complaints. It would be better if an employee could be guaranteed that a complaint had substance by obtaining advice from a third party.

Other jurisdictions have whistleblower hotlines that people may contact to state that they are working in a company where something is happening about which they are concerned and ask whether they should go further with their complaint. These supports should be available throughout the entire whistleblower process. There is no point in passing this type of legislation if employees are left hanging.

We pointed out that employees were 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 discovered something radically wrong, would he or she be protected? This aspect is covered in the equivalent British legislation and we should examine it.

I wish to refer to recent scandals in financial institutions. Although not a matter of life and death, revelations of sharp practices, overcharging and daylight robbery by banks brought shame and disgrace to the industry. These revelations, however, were vital to ensuring that trust could be restored and that consumers obtain a fair deal. Both AIB and National Irish Bank were the centre of these revelations. National Irish Bank was in the spotlight for a litany of difficulties, ranging from overcharging customers to assisting them in evading tax. AIB, our largest financial institution, issued three reports detailing how it overcharged customers in a range of areas by more than €34 million.

What occurred in that financial institution is amazing. The currency converter machines used by bank staff to calculate transactions had been adjusted to reduce the rate of commission charged, from one percentage point to 0.5 of a percentage point, in the days before what was then IFSRA contacted the bank.The Irish Times reported that the bank confirmed that staff working on the foreign exchange counters were not informed why the machines were being altered. Had the error not been made public, it is likely customers would never have known that they had been overcharged. The Irish Bank Officials Association said at the time that its members were demoralised and disgusted to learn of what took place.

The revelations of wrongdoing at AIB and NIB were brought to public attention by staff who decided to report them. Staff in both banks felt unable to raise such matters within their organisations and sought to bring attention to them through the media or the regulator. The IBOA general secretary, Mr. Larry Broderick, told the Joint Committee on Finance and the Public Service that bank employees work in a culture of fear and are frightened of speaking out on any issue because they are concerned that it will damage their career prospects. What has the Government to say to them now? What will it say to the thousands of bank workers who leave their jobs every year, jobs once considered safe and well paid?

It is not only financial institutions that have been at fault. The Government gave us PPARS, on which a loyal citizen and worker blew the lid. A whistleblower in the HSE was approached last year and entrusted with the task of telling the nation of the PPARS scandal, which cost taxpayers €160 million and which still does not work.

Today we heard details of another scandal relating to the smart card for travellers. Some €16 million has gone to waste to develop an integrated ticket for public transport. I understand that the computer software programme developed for this project must now be scrapped. A sum of €9.5 million went to waste on investigating a smart card system for the Luas and now we hear that a further €16 million has gone down the tube. Numerous people, organisations and issues of concern could be dealt with if that money was available to them.

We recently debated the dreadful impact of the actions of Dr. Neary in Drogheda. The culture of pressure and secrecy and employees' fear of damaging their prospects, as exposed by the Neary affair, is endemic in many hospitals. It is an issue that must be dealt with so that people who are concerned about services, activities, procedures or other issues relating to patient safety can expose difficulties. Of course, protection must be provided to ensure that nobody is incorrectly or mischievously named in connection with any difficulty. We must ensure the accuracy of statements.

Who knows how much earlier the rank corruption at local government level would have been revealed had whistleblowers protection been in place? Fine Gael implores the Government to pass this legislation as soon as possible. My party will not delay the legislation but reserves the right to offer its suggestions on improvements to it. Fine Gael thanks and congratulates the Labour Party and Deputy Rabbitte for the work they have done in bringing this issue forward and will be pleased to continue to support them in the passing of this Bill. I am glad that the Government has decided to accept it.

The Government motion seeks the discharge of an earlier order of the Dáil for the consideration of the Whistleblowers Protection Bill 1999 in committee of the whole Dáil and it seeks to direct that the Bill be withdrawn. The motion is shameful but not unexpected. In fact, like every other aspect of the Government's approach to this affair, its timing is dilatory, tortuous and drawn out.

The timetable, as a whole, stretches over more than six and a half years, as traced by the Minister of State, Deputy Killeen. On 15 June 1999, the then Minister of State at the Department of Enterprise, Trade and Employment, Deputy Kitt, gave the official Government line on my Bill. He 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" and added, "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 Kitt concluded by stating:

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 confirm to the House what I stated previously, namely, that Deputy Kitt's words were meaningless and empty. Neither he, his then senior Minister — the Tánaiste, Deputy Harney — their successors nor any of their officials maintained any sort of contact with me, regular or otherwise, in respect of this Bill from that day to this.

The then Minister of State at the Department of Finance, 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". The Bill was immediately sent to the Select Committee on Enterprise and Small Business but the proceedings thereof were delayed to give the Tánaiste 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, various bodies, including among others the Irish Nurses Organisation, the Irish Bank Officials Association and the Irish Airline Pilots Association, called for comprehensive statutory protection for whistleblowers. Those calls increased dramatically in the aftermath of the publication of the Lourdes Hospital inquiry report. In addition, the Standards in Public Office Commission recommended that a whistleblowers' charter be introduced for local government employees. Various Ministers and the Taoiseach continued to give the impression that work was ongoing to strengthen and improve the Bill.

In March 2000, the then 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.

In December 2000, the Taoiseach, in an article inThe Irish Times setting out his Government’s proposals for a package of measures to combat corruption, wrote:

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.

In the following sentence, however, he also announced the introduction of legislation to regulate lobbyists. We are still awaiting any action from the Government on that issue, even though my colleague, Deputy Quinn, introduced a Bill on the matter in July of 1999.

The Department of Enterprise, Trade and Employment stated repeatedly that extensive amendments were being prepared, based on consultations with all Departments. To the best of my knowledge, this evening is the first time we have heard about the 45 amendments that were prepared. It implies that the Bill entirely passed muster with the Department, which set out to make the legislation more comprehensive by framing the 45 amendments to which the Minister of State referred. Presumably the change of heart is entirely due to a change of political will on the part of the Government to proceed with the Bill. I do not accept all of the talk about the complexity of the advice from the Attorney General. The Bill and the amendments clearly went through the Parliamentary Counsel and might have been enacted if the political will to do so had been in existence.

Although the Bill lapsed on the dissolution of the 28th Dáil, it was restored to the Order Paper by the Government following the general election. The Bill also had supporters in the high level group on regulation and on the Government back benches. As recently as last June, Deputy Fleming produced a report from the Joint Committee on Finance and the Public Service on commercial bank charges and interest rates, stating that those engaged in whistleblowing should receive statutory protection and recommending that the Bill should be progressed.

The truth is that the Taoiseach and Tánaiste systematically misled the Dáil regarding the reasons the Government has blocked further progress on the Bill. When it became obvious that progress was being blocked, I continually questioned the Taoiseach, the Tánaiste and the Minister for Finance on the Order of Business. I was told by each that significant legal and constitutional issues had arisen and, eventually, that the legal advice was that the Government should not proceed with the Bill.

Under pressure from me in June of last year, the sixth anniversary of the passing of Second Stage, the Tánaiste informed me she would ask the line Minister to furnish me with the legal advice. When I still had not received the promised legal advice, I again raised the matter with the Tánaiste and she was forced to admit there was no such advice.

She said 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. I see no mention of that in the list of complexities that are bewildering the Minister of State at the Department of Enterprise, Trade and Employment, Deputy Killeen.

We know the Dáil has been systematically misled by the most senior members of the Government. The real reason the Government reversed engines and decided not to proceed with important legislation which it supported on Second Stage is that it was afraid it might offend the multinationals. The multinational companies have extensive practical experience of dealing with whistleblower legislation in many countries in the western world. From this, they learned to live quite comfortably with it. If they can persuade the 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.

The purpose of my Bill was to challenge and help transform the traditional culture of secrecy surrounding the conduct of business and public affairs. From the Blood Transfusion Service to the beef industry, whether it is Army deafness or 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? Why was nothing reported earlier?

As regards illegality and malpractice in our financial institutions, did nobody in these institutions know what was going on? In answer to these questions most right-thinking people will believe people knew or had their suspicions. However, the consequences for whistleblowers, in their careers and livelihoods, are such that it is often easier to turn a blind eye.

My Bill proposed 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 discovered in the course of their employment. I believe this is an essential step to restoring confidence in our major institutions, whether industrial, financial or governmental.

Under my 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 business and public life. Events of recent years have demonstrated 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.

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.

There is genuine 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. I share the concern but the Government does not. The Bill is firmly in line with the Labour Party's ongoing commitment to openness, transparency and accountability. That commitment produced the Freedom of Information Act, the Ethics in Public Office Act and the reforms to our Electoral Acts governing disclosure of donations and expenses at elections and capping expenditure at all elections. However, due to the legislative back-pedalling of the then Minister for the Environment, Heritage and Local Government, Deputy Noel Dempsey, it does not apply to local elections.

The evidence of its years in office has persuaded me the Government fears the concepts of openness, transparency and accountability almost as much as it despises them. It knows 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. Yet the Progressive Democrats and Fianna Fáil see no need to change the way we do business. This is despite the bleatings of the Progressive Democrats when they were on this side of the House.

Ominously, on the day I introduced the Bill, the then Minister of State at the Department of Finance, Deputy Cullen, compared the Whistleblowers Protection 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" and 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 the Freedom of Information Act, once it got tired of its temporary little commitment to openness, transparency and accountability. The Freedom of Information Act was introduced by the rainbow Government to ensure greater openness and to guarantee access to information to which the public is entitled. Fianna Fáil was always unhappy with this approach and it wasted little time in introducing legislation designed to undermine the original Act.

Despite having no mandate to do so and never having raised the matter in either party's election manifesto, the Government introduced amending legislation in 2003 which excluded whole areas of information to which the public had been entitled under the original Act. It then followed this with massive increases in charges for applications under the Act. The whole impact of this has been to seriously undermine the value of the original legislation.

It now seems clear that accepting the Whistleblowers Protection Bill on Second Stage was preferable to the embarrassment of voting it down. There was never any intention of implementing it. Better simply to put on an outward show of agreement and then send the issue to a departmental committee where it would die of old age. Although the 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.

We are ready for that eventuality. One way or the other, the Bill will pass into law. The Labour Party, when in Government, is committed to restoring and enacting the Whistleblowers Protection Bill. We are also committed to a return to the highest possible standards in regard to access to official information. We will repeal the Government's wrecking amendments to that legislation and restore and improve upon the original Freedom of Information Act.

I wish to share time with Deputies McHugh, Connolly and Eamon Ryan.

Is that agreed? Agreed.

That we are debating a motion for the withdrawal of the Whistleblowers Protection Bill 1999 is both disappointing and unwelcome. Public interest disclosure legislation, more commonly known as whistleblowers protection legislation, is a key element within workers' rights protections. It is essential to prevent the dismissal or victimisation of workers who come forward and disclose information in the public good.

In the Six Counties, the Public Interest Disclosure (Northern Ireland) Order 1998 provides protection for workers who are dismissed or victimised as a result of making certain disclosures regarding their employers' activities. The information disclosed must relate to a criminal offence, a failure to comply with a legal obligation, a miscarriage of justice, a health and safety issue, damage to the environment or an attempt cover up any of the above.

The importance of whistleblower protections cannot be underestimated. Whistleblowing can inform those who need to know about health and safety risks, potential environmental problems, fraud, corruption, deficiencies in the care of vulnerable people, cover-ups and many other problems. Frequently it is only through whistleblowing that this information can come to light and be addressed before real damage is done.

We can only surmise what suffering would have been prevented for the victims of Michael Neary if such legislation was in place. Would the corruption in planning, endemic in Dublin in particular, have persisted as long as it did leaving us with a legacy of poorly planned sprawling estates and colossal tribunal bills? Would the infection of women with hepatitis C and haemophiliacs with hepatitis and HIV have been stopped before so many people were infected? Although we will never know the answers to these questions, we can ensure such situations do not occur again by putting in place comprehensive whistleblowing protection legislation.

Whistleblowing is a valuable activity which can positively influence all our lives. The Government and the people will regret the decision to dump the legislation and deal with the issue in anad hoc manner.

It seems more than a little odd that the Government is claiming legal difficulties given similar legislation has been enacted in other jurisdictions which have similar legal systems. How is it possible to enact such legislation in the North and in Britain and not come up against the problems which this Government is using as an excuse to dump this Bill?

Are there not lessons the Government can learn from legislation existing in other states thereby overcoming the difficulties which the Government claims it is facing with certain EU commitments in respect of conditions for the disclosure of information and the problems of trade secrets and intellectual property rights?

It is simply not true to say it is more effective to address this on a sectoral basis and to say that while some workers may be given protections others will have to wait. It is nonsense to say it will result in the speedier introduction of relevant measures appropriate to different sectors. How long will it take to complete the process of introducing whistleblowers' protections on a sectoral basis? I contend it will probably take years if it is to be completed at all.

There are undoubtedly many cases where information that would be in the public interest is not revealed because individual workers justifiably fear penalization by their employer in the absence of measures to protect them. We must empower workers to come forward in the public interest to reveal information regarding threats to health and safety, the environment, incidences of fraud and corruption and other unacceptable activities. This is patently in all our interests.

I wish to record my opposition to the motion.

This motion is before us as a result of an instruction from the Minister for Enterprise, Trade and Employment, Deputy Martin, to the Chief Whip, Deputy Kitt, to withdraw the Whilstleblowers Protection Bill 1999. This has come about as a result of the Government's decision to take a sectoral approach to whistleblowers rather than a holistic one, as envisaged under the terms of the 1999 Bill as introduced by the Labour Party. It is extraordinary that it has taken seven years for the Government to take any action on this Bill. It is regrettable the action it took was to seek the measure's withdrawal. This is despite several Ministers having indicated at various stages that they were supportive of the 1999 Bill.

When the Bill was introduced in 1999, the then Minister of State with responsibility for labour affairs, Deputy Tom Kitt, said he fully supported any meaningful measures to increase the protection of workers and, therefore, would not be opposing the Bill's referral to committee. The measure has made no progress since then, however.

In 2001, the Government approved the redrafting of the Bill but nothing was produced by the Government. As far back as two years ago, the first reference to addressing the issue on a sectoral basis was made by the then Minister for Defence, Deputy Michael Smith. Nothing else happened until a few weeks ago when a relevant motion came before the House. At that time, the Minister, Deputy Martin, made a declaration instructing the Chief Whip to withdraw the Bill. That is the sum total of the Government's contribution to ensuring employees have statutory protection in the event of blowing the whistle on wrong doing in society.

The Government's efforts amount to nothing and that is regrettable, particularly when so much wrongdoing is being engaged in. Much of that wrongdoing could have been prevented if the Government had acted either by introducing its own Bill or by amending the Labour Party Bill, as appropriate.

It is regrettable this legislation is being withdrawn. I suggest the sectoral approach which is being taken could be better described as a piecemeal approach to our legislation. The goal of any good whistleblower legislation should be to promote a society in which it is possible to speak out about corruption, public dangers and other vital social issues, without fear of reprisal.

Effective whistleblower protection laws would benefit the public by exposing questionable practices and institutional illegality, thus ensuring compliance with the law. Whistleblowers should be a crucial line of defence in combating crime, fraud and abuse, as well as being a crucial element of basic national security.

Whistleblowers are unsung heroes who seldom get the protection they deserve. Ruined careers are often their reward. The grave need for enhanced legislation to protect whistleblowers was graphically illustrated by the scenario at Our Lady of Lourdes Hospital, the nursing home charges debacle, the hepatitis C situation and the deaths of haemophiliacs. Those are concrete examples of where such legislation would have helped.

The subject matter of the various tribunals currently in session would not have come to light without people having acted in the public interest at great personal risk. In the absence of effective overall whistleblower legislation, the proposal to remove the Whistleblowers Protection Bill 1999 from the Order Paper would appear to defy logic. Any legislation in this regard is better than no legislation. Amendments could have been introduced where needed to suit the circumstances. This is a missed opportunity.

This Bill predates the current Government and, since 1999, has been hovering around like Banquo's ghost in suspended animation, as a veritable skeleton measure. It is the manifestation of a guilty conscience about our abject failure in the intervening seven years to enact effective whistleblower legislation that would provide job security and create a climate where workers would be encouraged to report problems in the workplace. We are missing an opportunity here and I regret we are moving towards a sectoral approach, which is a cop out.

On behalf of the Green party, I am glad to return to this issue which we debated recently in Private Members' time. As Deputy Rabbitte commented, it is interesting to note what is not being said as much as what is, particularly with reference to the speeches delivered in the earlier Private Members' debate. The most remarkable aspect of that was the Tánaiste's clear opposition to this Bill, as detailed in her speech during the previous debate, because of the concerns of multinational companies about such legislation. It rings true to me that, rather than concerns about the inclusion of the Central Bank in the Bill or the implications of the Official Secrets Act, is the reason this Bill was pulled. This has a contemporary resonance. As mere elected representatives of the people, we do not have any knowledge of what goes on in the partnership process but I am told a similar battle of wills or ideological divide is currently occurring in that process. We have two ideologically separate sides. The unions are seeking labour controls or supports to assure themselves that what happened at Irish Ferries could not occur elsewhere. On the other side, there is a powerful and welcome block of multinational companies who object ideologically to the concept of greater and further labour controls on their ability to do business in whatever manner. In a sense, therefore, this is a precursor for that ideological divide and it was clear where the Government stood on this decision. It went with the line of the multinational companies and said "Let's kill this Bill. They don't like it and, therefore, it's not going to happen".

There were high profile cases concerning Enron, Andersen Consultants and others, which might now see the merit in having a proper whistleblowing system to save the capitalist system from its own inherent weaknesses and provide some protection. We will not know, however, because the Government is not pushing it. Neither do we know where the power lies in the Government on this issue. Is it with the Tánaiste, Deputy Harney, or does the Minister for Enterprise, Trade and Employment, Deputy Martin, have a different position? As Deputy Rabbitte mentioned, did he put that line in about the Tánaiste's reasons for pulling this Bill in the Private Members' debate? Is Fianna Fáil pulling the whole Bill at the request of the watchdogs in Government, the Progressive Democrats? They are the watchdogs for the interests of multinational companies in this country. That is how I read what has happened. It is a shame because if we do not go ahead with such legislation, which would free up the workforce, the alternative process would entail having an untold number of inspectors and investigations to try to discern what is happening. Surely it is far better to liberate and empower people who might be able to tell us what is going on, free of concern about the consequences for themselves.

The Government says it is approaching this matter in a piecemeal fashion but I do not see any evidence of that in the legislation that has come before the House. To take one example, the recent Fisheries (Maritime Jurisdiction) Bill dealt with an area where the real contention was a concern about illegal practices that would benefit from someone blowing the whistle. In the three days during which we debated that Bill on Committee Stage, there was no discussion about the possibility of strengthening whistleblowing legislation to provide cover in an industry where it is needed.

I do not believe the Government when it states it will follow a piece by piece process on this. My experience is that it will not and I do not believe such an approach by the Government will be effective. I join with Deputy Rabbitte in stating we should return to this issue when we are rid of the watchdogs for the multinationals opposite, the Progressive Democrats, and when Fianna Fáil learn an electoral lesson from the public that we want an open and transparent sense of governance. The electorate is shocked by the scandals revealed during the past five years and is willing to support a democratic process which stitches into our everyday economic business and civic life the ability for people to tell the truth and state what is going on.

I listened with considerable interest to the points made by Opposition Deputies on this motion. Both sides of the House have a commitment to address the situation but have major differences on the style in which that might be done. I can only account directly for the time in which I have been involved in the Department. I had discussions with the senior Minister on this issue during which we tried to come up with the best system to address such a major issue.

Initially, the Minister for Enterprise, Trade and Employment, Deputy Martin, and I believed it would be possible to introduce all-encompassing legislation which would effectively deal with the issues. However, for the reasons I outlined, that became more and more fraught. Major legislation on whistleblowers was on the side and anybody bringing through legislation could state it would be dealt with by that legislation, while others were aware of the difficulties with it and were including direct reference in their sectoral legislation.

Equally strong arguments can be advanced for taking the approach proposed by Deputy Rabbitte and for taking the sectoral approach. My judgment is that it seems sensible to adopt one or the other. On the basis of the information available to me, I felt the sectoral approach stood a far better chance of being successful, because of the complications and legal issues raised and because each ministry introduces quite an amount of legislation, as Deputy Eamon Ryan stated. Opportunities were lost because some people were of the view that major legislation would be introduced.

Deputy Neville raised a number of interesting points on support for employees' obligations. That issue was raised recently through a question to the Minister for Finance. Some interesting information emerged on what type of support people might require. Deputy Neville also mentioned the situation pertaining to students which, perhaps more than others, illustrates the need to act on a sectoral basis because each sector has different requirements. One of the difficulties which most concerned me was that all-encompassing legislation was likely to create difficulties in some areas and unlikely to address the peculiarities of others.

Deputy Rabbitte made the reasonable point that he was promised regular contact with Ministers in this Department. To be honest, I was not aware of that commitment. Perhaps some of my predecessors were not. If I had been aware that Deputy Rabbitte wanted to have a meeting or a discussion, I certainly would have been prepared to do so.

The Deputy was also promised maximum co-operation. A large amount of work was done when the view was held that this could be proceeded with on the basis of Deputy Rabbitte's Bill. Ultimately, it seemed difficult to surmount the issues raised. I did not find it was possible to address them and gradually came to the view the sectoral approach was likely to be far more successful. It was not a change of political will, it was a gradual realisation that neither the sectoral approach nor the all-encompassing approach was happening and we needed to come down on one side or the other.

There is confusion about what whistleblowing provisions would achieve. While provisions in either approach would provide protection for a whistleblower, the sub-text of what some Members stated would require mandatory reporting in many circumstances. That is a different principle and may need to be addressed. However, it would not be dealt with in the context of whistleblowers, which is protection for someone who voluntarily comes forward with information to have a difficult situation addressed. Any example raised by Deputies shows there is no doubt of the need to support people who are brave enough to come forward in that regard. I believe the sectoral approach will do so far more effectively.

Deputy Ó Caoláin made reference to legislation in other states. We examined legislation in other states. It came down to a choice between adopting legislation for the sake of being able to state we had whistleblowers legislation or doing something that would work. Our judgment was that a sectoral approach would be more effective. In electoral, or ordinary political, terms it would be wonderful to state we adopted the whistleblowers Bill provided by Deputy Rabbitte or that we dealt with the whistleblowers issue in a comprehensive fashion so it could be taken off the electoral agenda. However, we made a judgment that the other method was likely to be more successful and that requirements in certain areas would not be met by all-encompassing legislation.

Deputy McHugh made the point that it took seven years to reach this stage and appears to be under the impression that no work was done during that time. A considerable amount of work was done on both approaches, such as the 45 amendments to the original legislation and the provisions made in some sectoral areas.

Deputy Connolly summarised the Opposition's view when he stated that any legislation is better than none. That is a widely held view. I strongly hold the view that legislation put through the Houses ought to be effective and deal with issues. In many circumstances, a smokescreen of some type of legislation does more harm than good.

Deputy Eamon Ryan raised the point on foreign direct investment companies and multinationals, also mentioned by Deputy Rabbitte. I am not aware that was an issue at any stage in the discussions I had. I do not even remember it being mentioned. What we discussed was which approach would work best. We approached it from the view that clearly action needed to be taken as quickly as possible but in an effective manner.

Deputy Ryan also made the reasonable point that the Sea-Fisheries and Maritime Jurisdiction Bill did not include a whistleblowers provision. I do not know whether it would have been appropriate. I suspect it would have been. However, the chances are that the Bill was published long before the decision was made to take the sectoral approach.

One of the difficulties faced during the past six and a half years was that neither approach was taken as comprehensively as it should have been. One may have stated that comprehensive legislation would be put in place when Deputy Rabbitte's Bill was passed or stated that legal difficulties arose in that regard and so implemented provisions on a sectoral basis. It was not being done on either front as effectively as it might have been for that reason. It is open to Members of the House, now that the Government has made this decision and if the motion is passed, to remind each Minister at each Stage of legislation. They have been formally informed this is the Government's view and they ought to include it.

A number of other points were also raised on recent scandals, and opportunities arise to address these on a sectoral basis. Members are probably aware that since the Private Members' motion on 7 and 8 March, the HSE chief executive, Professor Drumm, stated the issue of a whistleblowing provision for workers in the health sector may need to be given serious consideration. In May 2005, the Health Service Executive welcomed the Irish Nurses Organisation's publication of a position paper on whistleblowing and how employees may air any concerns they have about their workplace.

I consulted with the Department of Health and Children and the Tánaiste is well-disposed to having issues regarding disclosure of confidential information examined in the overall context of ensuring patient safety and quality of care in respect of the code of governance to be drawn up by the Health Service Executive under section 35 of the Health Act 2004, the guidance governing professional conduct issued by the professional bodies, namely, the Medical Council and Bord Altranais, and the regulatory regime for all professionals involved in health and social care.

Ultimately, the sectoral approach will require the commitment of Ministers in various Departments. It will also require the Opposition to draw attention to the fact that these issues are important and the decision to include them on a sectoral approach must be examined in the case of each Bill or, at a minimum, in the various areas under the control of each Department. I do not doubt from what Members stated that they will be extremely forthcoming in ensuring each Minister makes that inclusion if it is appropriate at the time.

Question put.
The Dáil divided: Tá, 68; Níl, 51.

  • Ahern, Bertie.
  • Ahern, Michael.
  • Andrews, Barry.
  • Ardagh, Seán.
  • Blaney, Niall.
  • Brady, Johnny.
  • Brady, Martin.
  • Browne, John.
  • Callanan, Joe.
  • Carey, Pat.
  • Carty, John.
  • Cassidy, Donie.
  • Collins, Michael.
  • Cooper-Flynn, Beverley.
  • Cregan, John.
  • Cullen, Martin.
  • Curran, John.
  • Davern, Noel.
  • de Valera, Síle.
  • Dennehy, John.
  • Devins, Jimmy.
  • Ellis, John.
  • Fahey, Frank.
  • Finneran, Michael.
  • Fitzpatrick, Dermot.
  • Fleming, Seán.
  • Fox, Mildred.
  • Gallagher, Pat The Cope.
  • Glennon, Jim.
  • Grealish, Noel.
  • Harney, Mary.
  • Haughey, Seán.
  • Hoctor, Máire.
  • Jacob, Joe.
  • Keaveney, Cecilia.
  • Kelleher, Billy.
  • Kelly, Peter.
  • Killeen, Tony.
  • Kitt, Tom.
  • Lenihan, Brian.
  • McDowell, Michael.
  • McEllistrim, Thomas.
  • McGuinness, John.
  • Moloney, John.
  • Mulcahy, Michael.
  • Nolan, M. J.
  • Ó Cuív, Éamon.
  • Ó Fearghaíl, Seán.
  • O’Connor, Charlie.
  • O’Dea, Willie.
  • O’Donnell, Liz.
  • O’Donoghue, John.
  • O’Donovan, Denis.
  • O’Flynn, Noel.
  • O’Keeffe, Batt.
  • O’Malley, Fiona.
  • O’Malley, Tim.
  • Parlon, Tom.
  • Power, Peter.
  • Power, Seán.
  • Roche, Dick.
  • Smith, Michael.
  • Treacy, Noel.
  • Wallace, Mary.
  • Walsh, Joe.
  • Wilkinson, Ollie.
  • Woods, Michael.
  • Wright, G. V.


  • Allen, Bernard.
  • Boyle, Dan.
  • Broughan, Thomas P.
  • Bruton, Richard.
  • Burton, Joan.
  • Connaughton, Paul.
  • Connolly, Paudge.
  • Costello, Joe.
  • Cowley, Jerry.
  • Crawford, Seymour.
  • Crowe, Seán.
  • Deenihan, Jimmy.
  • Durkan, Bernard J.
  • English, Damien.
  • Enright, Olwyn.
  • Ferris, Martin.
  • Gilmore, Eamon.
  • Healy, Seamus.
  • Higgins, Joe.
  • Higgins, Michael D.
  • Howlin, Brendan.
  • Kenny, Enda.
  • Lynch, Kathleen.
  • McEntee, Shane.
  • McGinley, Dinny.
  • McGrath, Finian.
  • McHugh, Paddy.
  • McManus, Liz.
  • Mitchell, Olivia.
  • Murphy, Catherine.
  • Murphy, Gerard.
  • Neville, Dan.
  • Ó Caoláin, Caoimhghín.
  • O’Dowd, Fergus.
  • O’Keeffe, Jim.
  • O’Shea, Brian.
  • O’Sullivan, Jan.
  • Pattison, Seamus.
  • Penrose, Willie.
  • Quinn, Ruairí.
  • Rabbitte, Pat.
  • Ring, Michael.
  • Ryan, Eamon.
  • Ryan, Seán.
  • Sargent, Trevor.
  • Sherlock, Joe.
  • Stagg, Emmet.
  • Stanton, David.
  • Timmins, Billy.
  • Twomey, Liam.
  • Upton, Mary.
Tellers: Tá, Deputies Kitt and Kelleher; Níl, Deputies Neville and Stagg.
Question declared carried.