Dáil Éireann debate -
Wednesday, 5 Feb 2014

Vol. 829 No. 2

Protected Disclosures Bill 2013 [Seanad]: Second Stage (Resumed)

Question again proposed: "That the Bill be now read a Second Time."

Deputy Thomas Pringle

There is some confusion about sharing time. I am sharing time with Deputies Ross, Clare Daly and Wallace.

The identity of a whistleblower should be presumed to be protected rather than having a provision that they must indicate they want their identity protected.

I welcome the Minister’s intention to bring forward an amendment to deal with interim relief for whistleblowers. This has been raised as a concern at the Oireachtas committee and by the Irish Congress of Trade Unions. The Minister has outlined that no new systems or structures will be put in place to oversee this legislation, thereby limiting any potential costs arising from it. That is a retrograde step. An amendment was put forward in the Seanad by Senator Zappone to provide for the Standards in Public Office Commission to receive information from the Government on the operation of the legislation. The Minister should give this proposal further consideration. Legislation such as this should not be implemented and then left for five years before it will be reviewed.

In particular, there should be ongoing reviews to ascertain how public bodies are implementing legislation and facilitating whistleblowing within their organisations.

The final point I wish to make pertains to the definition of "worker" contained in the Bill. There is some concern that it may exclude many categories of contractor, including external auditors, accountants and professional advisers. This definition should be reconsidered by the Minister to ensure it is as wide as possible. Concern has also been expressed about voluntary workers. As all Members are aware, many charities rely on voluntary workers who should be covered on this basis to provide for disclosures if they arise in their particular situation. In addition, on foot of the increased use of internships within both private and public organisations, in order to prevent employers from designating such persons as volunteers and thereby placing them outside the scope of the legislation, the Bill should be amended to provide that persons in internships or who are working for no pay within an organisation are protected under this legislation.

This legislation can lead to a change in culture within organisations across the State, which would be very welcome. I hope this will be the main outcome of the legislation but protections will then be in place for those who must make disclosures and that constitutes a welcome step.

An Leas-Cheann Comhairle

I call Deputy Shane Ross who will be followed by Deputies Mick Wallace and Clare Daly.

Deputy Shane Ross

Is my understanding correct that we each have seven minutes?

An Leas-Cheann Comhairle

Yes.

Deputy Shane Ross

In principle, I welcome the Bill, in that it certainly is an attempt to address a long-standing problem for many years. The Government has made an effort to fulfil a commitment it made. It has been many years since a man by the name of Eugene McErlean came to my office in Leinster House when I was a Senator. He had been a whistleblower in AIB, although I believe he does not like to be called that, and, rightly, was unhappy about the treatment he had received during the years. He had lost his job and been obliged to sign a confidentiality agreement that muzzled him forever on the subject of his whistleblowing. I believe he thought it was time that some of the problems he had identified were brought out into the open. I was keen to do this because there had been a wall of silence from the Central Bank and AIB, which was central to the problem he had addressed at the time. It was very difficult to do very much at the time and very hard to get him in front of an Oireachtas committee. In that context, I pay tribute to Deputy Fergus O'Dowd who at the time was in opposition, as well as to Deputy Michael Moynihan, whose party was in government at the time and who was Chairman of an Oireachtas joint committee of which I was a member and who eventually managed to bring Mr. McErlean before that committee. They did so in the face of huge pressure, not just from the banks but also, to its shame, from people whom I will not name in the regulatory authority. Eventually, the chief executive of AIB made an apology of a sort to Mr. McErlean in front of an Oireachtas committee, which was many years overdue. However, it still took a long time for this problem to be addressed by any Government.

The problem was touched on by Deputy Thomas Pringle, when he stated there was a need for a change in culture. The Bill is good in many ways, although it is incomplete and I disagree with some of its clauses. However, the problem is that it is no good having in place such legislation unless it is actually welcomed and worked by the institutions. I can discern no change in the institutional attitude, particularly among the banks and the Central Bank, to whistleblowers. They will live with the Bill, but my guess is that they will try to bypass it. The culture within these bodies is anti-whistleblower and antagonistic to whistleblowers. There was one mysterious case of a Central Bank whistleblower who blew the gaff in the last stress tests. When one approaches the Central Bank - I note the previous Deputy Governor of the Central Bank was asked about this matter in one of the Oireachtas committees - its officials are very unhelpful in revealing anything that happened at that time. However, it is known there was a whistleblower and that, ultimately, that whistleblower did not go ahead. However, the circumstances surrounding the case were mysterious to say the least, were highly disturbing and remain so. While it is a mystery that has yet to be solved, there are people who still are determined to solve it.

As for the Bill, given the time constraints, I will only address on aspect of it, namely, what are called the special cases and the issue of the Garda. The Bill is not satisfactory in respect of the Garda and whistleblowers within the force. In section 19 which addresses the issue of the Garda it is proposed to amend the Garda Síochána Act 2005 by adding a clause that in the case of whistleblowers emerging within the Garda, will give the Minister the power to set regulations after consultation with the Garda Commissioner, the Garda Síochána Ombudsman Commission and the Inspectorate, with the approval of the Government. I do not believe this is satisfactory because within the past week there has been a case of a whistleblower within the Garda and the regulations would not sort out the problem that arose in that case. The regulations would cement the problem because the last person who should have been consulted about the man who appeared before the Committee of Public Accounts last week was the Commissioner. Moreover, I am unsure whether the Inspectorate should be consulted either. It was quite obvious last week that what happened then could happen again.

Last week, when a whistleblower sought to appear before the Committee of Public Accounts, the Commissioner threatened to take the committee to court and then started mouthing about subordinates usurping his authority. This is neither a friendly nor a warm climate into which a whistleblower is likely to enter. Moreover, the remarks of the Garda Commissioner were fascinating. The Commissioner who had the right to a public hearing which the whistleblower did not asked whether it was not extraordinary that of the 13,000 members of the Garda, only two were whistleblowers. He was absolutely 100% right. He was saying this was because there was nothing about which to complain, whereas the truth, of course, is that they felt they would not get anywhere, that they felt intimidated and that their jobs might be under threat and, consequently, they did not go ahead. If my interpretation of the Bill is correct, it appears as though the same or a similar system will be in place after the legislation is put into effect. This is not satisfactory and there will be a repeat of what happened last week. The last whistleblower who incidentally turned out to be an outstanding witness had tried that system of going to the confidential recipient and found it to be completely unsatisfactory. When he came to the Dáil, he found that he was obstructed at every single turn.

Deputy Mick Wallace

I welcome the long-awaited Government action in eventually bringing forward this legislation. I note it was promised in the programme for Government in 2011 and, when published last summer, was to be enacted by the autumn. However, I submit there is much work to be done on it before it can provide a robust and comprehensive form of protection for whistleblowers, one that will inspire sufficient confidence in the system to encourage more to come forward.

I echo the call of the Irish Human Rights Commission for simplification of the Bill and the requirements placed on a whistleblower. I share its concern about the different standards of belief and different procedures required to be followed on the part of a whistleblower, depending on whether he or she is reporting the information to his or her employer, a designated agency, a Minister or the public. This may not meet the stated policy aim, to provide a single and pan-sectoral simple form of statutory protection for all whistleblowers.

The Minister has made much of the fact that section 14 protects whistleblowers by providing for civil immunity from actions for damages and a qualified privilege defence under defamation law. However, it is likely that there is already this protection under section 18 of the Defamation Act 2009 which provides that the defence of qualified privilege applies so long as the whistleblower has a duty or interest in providing this information for a person who has a duty or interest in receiving it.

We are all very well aware of the story of John Wilson and Maurice McCabe, the two whistleblowers who exposed the penalty points malpractice. Given that we are discussing whistleblowers and improving matters, I ask that Maurice McCabe immediately be given independent access to the PULSE system. Maurice McCabe and John Wilson have put so much on the line. It is almost two years since they first went to the confidential recipient. The manner in which this Government has dealt with this is frightening and puts a question mark over the credibility of this Labour-Fine Gael Government. The competence and credibility of the Minister and the Garda Commissioner are in question.

When the same Minister spoke on "Prime Time" about my incident, not one Member of the Government had a word of criticism about what he did. I heard the Minister being very economical with the truth last week on RTE saying the Standards in Public Office Commission, SIPO had cleared him of all wrongdoing. That is not true. SIPO said it did not have the remit to deal with my complaint. SIPO is toothless and lacks the appetite to challenge the Minister. Is there any point in having SIPO if this is how it carries on?

Whistleblowers are rare for many reasons, and will become rarer, given how this State treats them. A while back we were given a transcript of a conversation two years ago between Maurice McCabe and the confidential recipient. It is frightening. It includes the following: "I'll tell you something Maurice, and this is just personal advice to you, if Shatter thinks you're screwing him, you're finished." Here is another line: "If Shatter thinks, here's this guy again trying another route trying to put pressure, he'll go after you." Our Minister for Justice and Equality will "go after you". What is going on?

This Minister has referred the matter to the Garda Síochána Ombudsman Commission, GSOC, in a limited form under section 102. He still refuses to apply section 106, which would investigate practices, policies and procedures of how the Garda Síochána operates. He can pass a new whistleblower Bill but it is pointless unless he applies it. Building regulations in this country are powerful. The reason so many buildings were built wrong is not because we did not have building regulations but because we did not apply them and supervise building, and the State did not spend money inspecting them. It was not that the regulations were not there.

The same applies to the whistleblowers. The Government can introduce all the laws it likes about whistleblowers, but if the Minister for Justice and Equality is going to spend two years diminishing and dismissing complaints and allegations made by whistleblowers, what will come of the new Bill? What will it be to us? The Minister was in here this morning and I tried to raise several points, but time was scarce. However, I told the Minister if this were Britain, he would not be in office. He would have been long gone. If this were Britain, the Garda Commissioner would not be in office. He would be long gone. The Minister, having presided over the penalty points fiasco for the best part of two years, has proven that he is unfit for office.

Deputy Clare Daly

The other Deputies have hit the nail on the head regarding this legislation. We have an attempt to put some protection on paper, with which most right-thinking citizens would agree. However we must ask ourselves how effective that will be when we have a problem with the culture in our society and a tone set by those on the top. It is interesting to look at previous Dáil debates about other whistleblowing protections that have been there, for example the reports on the discussions after the Morris tribunal. At that time we were promised gold-plated systems of accountability and protection and a means of breaking down the blue wall of silence in this instance regarding the Garda Síochána. The promised protections never happened and we need to critically examine this.

It is very difficult for somebody to report wrongdoing. The position of whistleblower is an incredibly vulnerable one, not least because of the cultural attitude towards grasses. Nobody wants to be a rat or report something they should not. It is ingrained in us from an early age. Protection already exists in law. It is a criminal offence to retaliate against whistleblowers under section 21 of the Criminal Justice Act. However there is no protection in reality. It might be there on paper but not on the ground. We need to examine this. For example, a constituent of mine who did the accounts for a voluntary housing body in this State took seriously his responsibility to report wrongdoing in terms of tax returns and signatures being forged on cheques. That man, with a young family, is out of a job while that voluntary housing body continues to receive funding from the State.

There is a lot of talk in this Bill about protections for workers from unfair dismissal and so on but constructive dismissal needs to be examined. In many organisations a whistleblower's stay becomes untenable. It is untenable if those against whom a whistleblower is reporting stay in their positions. The legislation is incomplete because on the one hand we talk about protecting whistleblowers, which is good, but one of the best ways to protect them is to increase the penalties on those who have done them wrong. That is not examined seriously enough.

Mark Harrold, who blew the whistle on the Leas Cross scandal, originally reporting the treatment of a patient who had died in that nursing home. He tried to deal with it internally. He went to the Minister for Health of the day. Eventually the case was investigated but this man had to leave. He fought a case which cost him €75,000 in the Employment Appeals Tribunal and never got justice although he highlighted that wrong very effectively. We could spend much time reiterating many examples in different areas.

Why should we believe this Bill will change anything when we see what happened to the two most prominent whistleblowers who have operated in this State over the past period, the two gardaí at the centre of the penalty points controversy? One of them is out of a job. He did not want to be out of a job. He is a young man with 30 years' service in a force that he loved but he could not continue to operate in it. The other man, as Deputy Wallace said, is being denied the ability to do his job properly because he is denied the right to access PULSE, as if he is some form of contaminant when he should be rewarded for the courageous stand he made. The confidential recipient system, which we were told was going to deal with everything after the Morris tribunal, does not work.

We had the ridiculous spectacle this morning of the Minister for Justice and Equality admitting this. He is the man who denied this for so long, but now when it is standing up in neon lights, he acknowledges it, as if it is something he himself has discovered. He is the same man who bragged about giving the Garda Síochána Ombudsman Commission, GSOC, access to the PULSE records this morning and that he is going to deal with that now. Six months ago, when the GSOC asked for access, he refused to include that in the protocols. There are huge difficulties here with this type of mentality and operation.

Deputy Wallace dealt with the issue of when the whistleblower first went to the confidential recipient and the response he got. We know the confidential recipient went to the Minister, Deputy Shatter, in May 2014 and reported to the Garda whistleblower that he got no feedback from the Minister. The confidential recipient said he had discussed the case. He said: "I have done my best for you Maurice; I haven't heard anything back." After a certain period of time he stopped contacting the Minister in that regard. It was only in desperation, after going through every official channel that the garda came to Members of the Oireachtas, as he is lawfully entitled to do. He came to us with the information, which we got onto the Dáil record and then "Prime Time" ran with the story.

Let us look at what happened the day after "Prime Time" was broadcast. A confidential Garda circular, signed by the Assistant Commissioner, was sent out to all of the Garda stations around the country, effectively warning gardaí. It stated: "In order to protect the reputation of An Garda Síochána, individual inquiries conducted by Garda personnel on PULSE will be audited." Then, underlined on the back it stated: "Inappropriate release of data in the possession of An Garda Síochána to external agencies is prohibited. Release of this information to any source external to An Garda Síochána will be fully investigated and processed and the criminal aspects of inappropriate disclosure will be fully investigated." This was a warning to these men to back off and shut up.

After the internal report came out, the Minister for Justice and Equality made a public press statement which did disclose wrongdoing, but minimised it. He was talking about whistleblowers and how, while they could not have everything right, the substance should be right. He said: "However, even allowing that latitude in this case, it is a matter of concern that the allegations made by this Garda whistleblower were in many instances seriously inaccurate and without any foundation in fact, or else involved an incomplete understanding of the facts." He repeated that in this House on 21 May, in response to the allegations in regard to his disclosure on "Prime Time" about Deputy Wallace, when he talked about us denigrating An Garda Síochána, undermining public confidence, damaging their reputation and saying that we rejected the conclusions contained in the report which, to any fair-minded individual, revealed that some of the most serious allegations made by the whistleblower had no basis in reality.

The Minister for Justice and Equality has repeated in this House, at every turn, that the whistleblower's evidence did not stack up. When we have the man at the top setting that tone, with the Commissioner - whom he appointed and the remit of whose office was extended beyond what any other Commissioner got before, at the behest of this Minister - in league together and unaccountable to this House in any real sense, how can we have a system where people inside An Garda Síochána can speak up? I am sorry to say that nothing in the proposed Bill will protect future whistleblowers from that scenario.

An Leas-Cheann Comhairle

The next speaking slot is shared by Deputies Damien English, Seán Kyne, Áine Collins and Paul Connaughton.

Deputy Damien English

I welcome the Protected Disclosures Bill 2013 and commend the Minister for Public Expenditure and Reform, Deputy Howlin, on including this whistleblower legislation in the programme for Government. It is positive and much needed legislation which aims to bring into effect a single charter or framework of protections for workers in both the public and private sectors. This must be welcomed strongly.

The timing of this Bill is topical in terms of what has been reported in the media over recent weeks and months. However, the issues are probably older and wider than what has been alleged in the Committee of Public Accounts of late. The final report of the Mahon tribunal and the Nyberg banking report highlight the need for this legislation. Reports yesterday that corruption costs the European Union economy as much as the EU budget itself also demonstrate the need for action and urgency on this matter. No one can argue but that the public interest, the public purse and the rule of law must govern all the dealings of the public and private sector. The role of whistleblowers in guaranteeing this must be recognised and protected. However, measures to protect the public must also protect people and bodies from false or malicious claims and it is imperative this important balance will be struck in this legislation.

Employers I meet, particularly those in the SME sector, commend the Government for creating a sustainable pro-enterprise and pro-jobs culture in this country over the past three years, a fact recognised internationally by Forbes magazine. Much needed reforms must strike a balance and not set this back. We must be careful this legislation keeps that balance right. As Chairman of the Joint Oireachtas Committee on Jobs, Enterprise and Innovation, I would like to outline to the Minister and the House some of the legitimate concerns of the SME business sector regarding this legislation that have been brought to our attention.

The divergence in the treatment of whistleblowers, in terms of awards and compensation, reliefs etc. arising out of their actions, from the norms of employment law have been questioned by some businesses. I call on the Minister to take the opportunity when responding on this debate and on Committee Stage to provide more detail in this area and to explain the rationale behind this. I understand some of this, but there have been questions with regard to how, for example, interim relief will work. We accept it should be there to provide for exceptional circumstances, but should it become the norm? The IBEC submission of October 2013 highlighted this. It also has concerns with the compensation of 260 weeks, which is a 250% increase on the standard maximum amount a rights commissioner or Labour Court can award.

It is feared this new level, which is meant to be a ceiling, will become a target. It certainly gives more power to the rights commissioner or the Labour Court. It is a significant settlement and while it might be needed in some cases to encourage whistleblowing, if it becomes the norm or a factor in every settlement, it will it difficult for businesses to survive. As IBEC has outlined, the issue is it creates a potential for the needless closure of businesses and the loss of jobs to people with direct involvement or responsibility for the matters at issue. It is about getting a balance. The Minister has talked about taking a stepped approach to the issue. I am sure he is in favour of this proposal, but there is a fear that the new ceiling will become a target.

The IBEC submission also highlights the issue that interim relief for protected disclosures in the legislation diverges from the current measures in place, which leaves it at the discretion of a judge in exceptional cases. I ask the Minister to provide an explanation for this provision to employers and for us to tease the issue out further on Committee Stage so that we can bring everybody on board and clarify the reasons for it. We all recognise that there are exceptional cases.

I believe there is room for the public interest provisions of the Bill to be strengthened. There is a real fear among employers that businesses are not adequately protected against false or malicious claims. I read in the media reports on yesterday's debate that a good business which acts properly has nothing to fear. This is only right. Likewise, an employee who knowingly makes false or malicious claims should have something to fear. These people should have cause to fear this legislation. The Minister has clarified what will happen if a person knowingly or maliciously makes a claim, but that provision in the Bill is not strong enough. I am not convinced there is enough fear being invoked to stop somebody from wrongly using the legislation or from abusing the legislation. We want the Bill to work in the public interest. Also, if a legitimate business is doing everything right, it should not be affected. I understand we need a balance. We must encourage people to come forward, but we must get the balance right. If there are no measures in the Bill that will prevent malicious behaviour from the outset, there will be cause for a more defined avenue for businesses to pursue and discipline individuals and recover costs from them.

I believe that when the best international practice is introduced to protect individuals who, in the public interest, disclose information, the best international practice is also introduced to protect businesses from malicious activity by individuals. Such provisions would be in the public interest. The Bill is, as the Minister says, a significant step forward in the framework of existing protections for workers, which will ensure Ireland's international reputation in preventing corruption is significantly enhanced.

Mention was made earlier of the need to change our culture. There is a difficulty with the culture that exists throughout the public and private sector in terms of sharing information and speaking one's mind. When I worked with the health board during my days in college, in the late 1990s, people were afraid to speak out or give their view. They did their jobs in silence. This attitude seems to exist throughout the public service.

I have spoken previously about the fear throughout the public service that speaking one's mind might affect one's chances of promotion. We need to move away from this, hear people's thoughts and tease out matters. We should have a proper framework to enable people to say what they think. I accept the rules and regulations about speaking to the media, but people should be able to speak their mind freely within their organisation or to Deputies, raise concerns and make suggestions. The legislation establishing the HSE states the CEO cannot question Government policy. This is mad and where the problem starts. We should encourage the questioning of policy.

Deputy Seán Kyne

This is an important Bill and I am delighted to see it before the Dáil. I commend the Minister for Public Expenditure and Reform, Deputy Brendan Howlin, and his officials. The publication of whistleblower legislation is a clear commitment in the programme for Government. In 2012 the Mahon tribunal's report strongly recommended strengthening protection for whistleblowers. Internationally, protection of whistleblowers is seen as central in the struggle against corruption. In the United Kingdom, our nearest neighbour, legislation was enacted in 1998, while legislation was enacted in New Zealand in 2001. While the Bill is welcome, it is long overdue.

The aim of the legislation is to protect workers from reprisals were they to report wrongdoing and its application will be in the public and private sectors. The Minister had a number of options and I am delighted that he chose to encompass both sectors. A whistleblower will be covered under the legislation from the first day of work. We are not in the business of creating new quangos but cutting costs and it is right that the Rights Commissioner will be the first port of call in making a complaint, with a right of appeal to the Labour Court.

A definition of a whistleblower is a person who discloses an activity which he or she believes to be illegal, immoral or unethical and can include items such as danger in the workplace, price-fixing, negligence and bribery. In the past decade in the United Kingdom the top five areas of concern as reported have been financial malpractice, work safety issues, public safety, including patient safety, the abuse of children or adults and ethical issues such as nepotism and conflicts of interest. This country has a disgraceful history in terms of child abuse and it is right and proper that the legislation will allow easier and safer disclosure of issues which may arise with children, vulnerable adults and the elderly community. Examples have been provided by other Deputies and it is a positive move.

Last year I raised a Topical Issue regarding a complaint made to me by a constituent who would have benefited from this legislation were in place at the time. The person who approached me had lost his job at a health facility merely because he had raised concerns that proper and safe procedures were not being followed in the disposal of hazardous radioactive medical waste. At the core of this issue was the safety of patients, workers and the public. The individual lost his job, as did many of his associates and friends at the facility, because he had chosen to raise questions and speak out and send e-mails indicating that proper procedures were not being followed. He received a redundancy payment, but he went through a very difficult period, as did others.

The legislation refers to retrospective effect. Where an individual has moved to another job, will he or she be entitled to avail of the compensation mechanism? Is it possible for someone to make protected disclosures about a previous job? Is it possible for my constituent who is now in a new job to make protected disclosures about safety concerns in his previous employment, the measures not taken and procedures not followed? Perhaps the Minister might clarify this.

I welcome the Bill which will change the Unfair Dismissals Act to cover those who make protected disclosures. It will also deal with the issue of compensation and prohibit the penalisation of whistleblowers by measures such as suspension, unfair treatment and blacklisting, whereby someone's name is mud, whether in the banking sector or the health care sector, as in the case I discussed. This is an issue of grave concern. I commend the Minister and his officials for bringing forward the legislation.

Deputy Áine Collins

I compliment the Minister for Public Expenditure and Reform, Deputy Brendan Howlin, for bringing the Bill to the House. It is long overdue, as a culture of secrecy and, at times, false loyalty has cost the State dearly. Much of what went on in this culture has only come to light in recent years. We have had one wave after another of scandal or wrongdoing, from revelations of child abuse to bad practice in financial circles, the health care sector, the education sector and many others.

Not identifying wrongdoing leads to a huge financial cost for the taxpayer and society generally. In recent years we have had tribunal after tribunal which eventually exposed scandals of one sort or another. This has led to huge compensation claims which must be paid by this and future generations of taxpayers, not to mention the cost of the tribunals. New issues from the past emerge on a continuous basis. The recent decision of the European Court of Human Rights highlights other injustices from the past that we have failed to deal with.

There have been so many revelations that we wonder how did we not find this out before and why no one said anything. We have had a culture of keeping quiet, saying nothing and not rocking the boat. Being an informant was always seen as bad, but this culture is changing and must continue to do so. There is a growing demand that people who know about wrongdoing should report it and not be afraid to come forward. The Bill aims to provide for this by offering protection to all workers against penalisation in circumstances where they make a protected disclosure. It is an anti-corruption mechanism and a key ingredient in the promotion of a culture of public accountability and transparency, which we all welcome.

We must ensure balance in any new legislation. We need to ensure that not only is protection given to people who make a disclosure but that employers are also protected from unreasonable, unfair or unlawful disclosures. The Bill outlines the protected disclosure must be of relevant information and made in the reasonable belief of the worker. It must also tend to show one or more relevant acts of wrongdoing. It must also have come to the attention of the worker in connection with his or her employment. It should be in the public interest, as opposed to a personal grievance. We already have much employment law to cover such grievances.

There is no motivational requirement test in the Bill which may be of concern to some employers, especially in the SME sector which accounts for 80% of jobs. We must be mindful of the burden on these employers. We must also be conscious of protecting employers from ill-informed, spurious or malicious disclosures. No one wishes to see the livelihood of a business and its staff threatened by someone making a disclosure with no reasonable basis in the first place or with another motivation behind the claim. Will the Minister and his team further examine the Bill to ensure the verification process of a reasonable disclosure is robust enough to protect the employee and employer and provide for open and honest transparency? Employers will have a responsibility to ensure they put in place a whistleblowing policy and they cannot ignore it.

We all welcome this measure. It will be another burden on businesses, but it will be a very good practice that will result in a more open culture, which we will all welcome.

I am sure it will encourage more innovative practices in employment also.

We have all seen cost of past wrongdoing - financially, physically and morally - to our society. We cannot allow such wrongdoing continue in the future. We must ensure that people believe it is safe to speak out in that regard. For that reason, I commend this Bill to the House.

Deputy Paul J. Connaughton

I welcome the opportunity to speak on this very important Bill. This is one of the most welcome legislative measures to come before the House during the lifetime of this Government. Every day we are seeing and reading about instances of systematic and endemic wrongdoing in organisations that was highlighted internally by employees, but only at great risk to their professional careers. In the past teachers, nurses, doctors, gardaí and social workers have spoken up at great risk to their careers because they believed their concerns in respect of the safety of individuals was being overlooked. To speak up and question the culture of one's own workplace takes great courage. That is the reason this Protected Disclosures Bill is vital to workers and former workers in public and private sectors.

Taking the medical profession as one example, a nurse or doctor who raises serious and significant concerns about aspects of the way a hospital or residential home is run could justifiably believe that if their employer acts in a vindictive manner, they could find themselves out of work in a time when employment is becoming increasingly difficult to source. Nurses, doctors and other hospital employees have made their concerns public in the past, but only at great personal cost. However, in doing so they helped highlight some dangerous and unjust situations that were subsequently rectified.

Such whistleblowing in the public interest must be encouraged as it will make for a fairer and more just Ireland. One only has to recall the culture of secrecy in past decades to determine that the "see no evil, hear no evil, speak no evil" approach has not stood us in good stead and has allowed dangerous or abusive situations to continue unchecked for years and decades. This Bill will not stop dangerous or abusive situations arising but will help ensure that they can be exposed as quickly as possible and that the person taking this courageous step does not have their career progress hampered.

I welcome the fact that deliberate false reporting is not protected. Other welcome provisions in the Bill include immunity from civil liability and protection of the whistleblower's identity. Internal procedures for protected disclosures will now have to be put in place, and I believe that any rational organisation will see the logic in having problems highlighted and addressed as soon as possible rather than allowing a problem, of which management may or may not be fully aware, to fester for years and decades.

Ongoing monitoring of new legislation is imperative, and the review of this legislation every five years by the Houses of the Oireachtas will allow Members determine if the legislation is having the desired effect. However, the Bill will only have the desired effect if employees are made aware of their rights under the Bill. Information campaigns and proper communication structures will be key to the effectiveness of the Bill.

Two years ago, the report of the Mahon tribunal recommended increased protection for whistleblowers. Prior to that, a similar recommendation was made by the Standards in Public Office Commission. The aim of this Bill is to ensure that higher standards pertain in Irish institutions, both public and private, and also to encourage trust in the workings of various institutions.

The actions of whistleblowers have exposed low standards in places as diverse as planning departments, churches, schools, crèches, banks, hospital theatres and private companies. That must continue if low standards are to be exposed. The world's best and most resourced regulatory framework cannot achieve through inspection what can be achieved through the actions of whistleblowers.

To whom the disclosure should be made is a very important consideration, and I note that various sections of the Bill allow for disclosures to employers, prescribed persons, legal advisers, law enforcement or to a Minister of a Government. Disclosure of wrongdoing should only be made to a Minister if the worker is employed by a public body for which the Minister is responsible. Making the disclosure is simply the first step in this process, and we must ensure that the person or persons to whom the disclosure is made are fully aware of the steps they must take to deal properly with the disclosure, whether that person be a Minister, a trade union official or a solicitor.

There are steps available to make disclosures to Members of Dáil Éireann, but it is clear from the legislation that they are only intended for exceptional cases where disclosure has been made but has not been acted upon or other avenue available taken. Much greater clarity must be provided in this regard to ensure public representatives are not the first port of call for those intent on exposing wrongdoing but rather that the disclosures are made through the proper channels.

This Bill is long overdue but we can only hope its enactment will result in a more open and progressive culture within the State institutions in both public and private spheres.

An Leas-Cheann Comhairle

The next speaking slot is shared by Deputies Seán Kenny and Michael McNamara. Deputy Kenny has ten minutes.

Deputy Seán Kenny

The programme for Government makes a clear commitment to the introduction of whistleblower protection legislation. The Minister for Public Expenditure and Reform subsequently reiterated this commitment on a number of occasions in undertaking to introduce overarching legislation that would provide protection for workers in all sectors, and the legislation before us is the result. I very much welcome this legislation. Comprehensive legislation that protects those making disclosures is long overdue.

The term "whistleblower" is a convenient shorthand way of describing a person who discloses information regarding concerns about some form of wrongdoing or misconduct that comes to the attention of others either inside or outside their organisation.

The public generally becomes aware of an incident of whistleblowing when something has gone wrong, usually when the whistleblower has been dismissed or has been made to suffer in some way. When it appears that the whistleblower has been motivated by genuine and well-founded concerns, public opinion tends to support the whistleblower on the grounds that they have done a public duty. Unfortunately, however, the message that emerges from media reports of whistleblowing tends to be negative, namely, that those who put their heads above the parapet and speak out are liable to be penalised in some way.

The raising of genuinely held concerns about issues of public importance is to be encouraged, and it therefore follows that workers who wish to raise concerns about wrongdoing in the workplace ought to be shielded from the retribution of some employers who would seek to suppress the disclosure of such information. Similarly, it is equally important in providing protection for workers that an appropriate balance is maintained that does not result in the unnecessary public disclosure of genuinely confidential information. In addition, it should not provide a mechanism for private employment-related grievances that are properly dealt with under existing, long-established and tested industrial relations mechanisms.

It is worth giving a brief history of whistleblowing legislation in Ireland which, in my view, shows how lacking it has been until now. The Whistleblowers Protection Bill was introduced in the Dáil as a Private Members' Bill by my Labour Party colleague and now Minister, Deputy Pat Rabbitte, in March 1999. In June 1999, the Government agreed to accept the Bill in principle on Second Stage, subject to amendments proposed following consultations with interested parties and following on the advice of the then Attorney General. The Bill passed Second Stage in the Dáil in June 1999 and was referred to the Dáil Select Committee on Enterprise and Small Business.

At its meeting in July 2001, the Government approved the redrafting and amending of the Whistleblowers Protection Bill 1999. The Government raised a number of detailed and complex amendments which, according to the advice of the Office of the Parliamentary Counsel, would require substantial redrafting. Further progress on redrafting the Bill was overtaken by the dissolution of the Dáil in April 2002 and the general election in May 2002. In June 2002 the new Government decided to restore the 1999 Bill to the Dáil Order Paper, and it became part of the Government legislative programme. On 2 November 2004, the then Taoiseach, Bertie Ahern, indicated to the Dáil that the Whistleblowers Protection Bill 1999 was no longer a Government priority.

The Government decided in March 2006 to address the issue of whistleblowing on a sectoral basis and to include, where appropriate, whistleblowing provisions in all future draft legislation. It also decided to remove the Whistleblowers Protection Bill 1999 from the Dáil Order Paper. The Whistleblowers Protection Bill 1999 was reintroduced as a Private Members' Bill in the Dáil in January 2010 as the Whistleblowers Protection Bill 2010, but fell on the dissolution of the 30th Dáil in February 2011.

The delaying of legislation and the subsequent watering down of what had been proposed was done, disgracefully, by Fianna Fáil during its long 14 years in government, and I am not surprised by that. Fianna Fáil has presided over a great deal of political corruption in this State since the time of Charles J. Haughey in particular, and it is not a surprise to me that it would not wish to bring in proper legislation. I can only hope that the Fianna Fáil Party of today is a different party.

On a related matter, I wish to raise again the matter of the final report of the Mahon tribunal. In Chapter 18, page 2,531, of the Mahon tribunal report the view was expressed that whistleblower protection plays an important role in the detection of corruption offences and that the protection offered to prospective whistleblowers should be as robust as possible.

In particular, it recommends that protection be extended to protect independent contractors from penalties where they blow the whistle on a person to whom they are providing services and that limits on the amount of compensation which may be awarded to those penalised for whistleblowing be removed.

The final Mahon tribunal report pointed out that if top-down initiatives to combat corruption were to be successful, they had to be mirrored by bottom-up demands coming from a public which was fully engaged in and committed to combating corruption. It noted that such "demands help to strengthen and reinforce political will to confront corruption. In addition, the willingness of the public to engage in anti-corruption efforts through whistleblowing as well as voicing concerns and demands is likely to greatly enhance attempts to uncover corruption when it occurs and to undo its effects". The report also noted that there was no pan-sectoral protection for whistleblowers in Ireland. It further stated:

Protection for those who blow the whistle on corrupt transactions is an important element in ensuring their detection and sanctioning. Corruption is frequently an offence committed by wealthy and/or powerful members of the community and those reporting it may well fear the consequences of doing so for their own careers and employment prospects. Whistleblower protection may help alleviate those fears, thus facilitating the reporting of corruption offences.

It went on to urge the Government to reconsider its approach to whistleblower protection and bring in at the earliest opportunity a general law protecting all whistleblowers. It recommended that the existing whistleblower protections under the Prevention of Corruption (Amendment) Act 2010 be extended to protect independent contractors who reported suspicions of corruption from penalties and to remove the existing limit on the amount of compensation awarded.

I commend the Bill to the House. The legislation is overdue. As a Labour Party councillor who witnessed corruption at first hand in Dublin in the 1980s and 1990s, I am proud to support it as a Member of this House.

Deputy Michael McNamara

I join Deputy Seán Kenny in welcoming the Bill, although I do not agree with him that corruption in this State was confined to Fianna Fáil. Corruption is, unfortunately, part of human nature, particularly in Ireland, and to the extent that Fianna Fáil was corrupt, it reflected corruption in the body politic. A range of prominent international organisations have called for the introduction of whistleblower legislation, including the United Nations, Transparency International, the European Parliament and the G20. In Ireland we did not need international bodies to draw our attention to the need for such legislation, given our own difficult experiences. The Nyberg report on the banking crisis stated:

The very limited number of warning voices was largely ignored. Attempts by banking insiders during the period to send cautionary signals to market participants about escalating property values were dismissed as ill-informed and wrong. Doubters (the few that identified themselves as such to the Commission) in the main grew unsure over the years when nothing seemed to go wrong. It also appears that some stayed silent in part to avoid possible sanctions.

The Mahon tribunal's report stated:

The Tribunal is also of the view that whistleblower protection plays an important role in the detection of corruption offences and that the protection offered to prospective whistleblowers should be as robust as possible. While those who blow the whistle on corruption are protected to a certain extent under the Prevention of Corruption Act 2010 and the Criminal Justice Act 2011, the Tribunal believes that this protection could be made more robust. In particular, it is recommending that protection be extended to protect independent contractors from penalization where they blow the whistle on a person to whom they are providing services and that the limits on the amount of compensation which may be awarded to those penalized for whistleblowing be removed.

I am glad that Ireland is operating within the framework of the European Union and the Council of Europe with this Bill. I understand the Council is in the process of drafting recommendations at a committee of Ministers level which will apply to all 47 member states. I am glad that Ireland is pressing for robust protections in this context. This is something previous Governments failed to do and it is welcome that the Government is taking action on the issue. However, while I welcome the Bill, I have some concerns about the extent of its provisions. The issue of whistleblowers was discussed by the Parliamentary Assembly of the Council of Europe, following which a resolution and recommendations were passed in plenary session. The assembly recommended that the committee of Ministers develop recommendations, which it is now doing. The draft resolution stated whistleblower legislation should be comprehensive and cover relevant areas in law. It refers, in particular, to media law and the protection of journalists' sources. This is something that could be provided for to a greater extent in the Bill.

I am conscious that the relevant Minister is not in the Chamber. I will pause until the Minister of State at the Department of Arts, Heritage and the Gaeltacht, Deputy Dinny McGinley, is in a position to hear what I am saying because doing otherwise would defeat the purpose in being here.

Media law is an area which should be included in the Bill. I am struck by the limited recourse to the media available to whistleblowers under the Bill. If I am wrong, I would welcome a connection because it would allow me to support the legislation more wholeheartedly than I do. We do not want to create a situation where the media or Members of this House will be the first port of call for a concerned worker - it is welcome that "worker" is defined broadly and includes gardaí and members of the Defence Forces - but it is unreasonable to always expect him or her to begin by reporting internally. The Garda Síochána, for example, is a highly hierarchical organisation and one must assume that the command structure allows those at the top to be aware of what is being done in their name by those at the bottom. The reason Edward Snowden did not approach somebody inside the security services in the United States was he assumed - probably correctly - that he would have been silenced had he done so. Disclosures are allowed to Ministers and certain prescribed persons and there is provision to enable the whistleblower to report elsewhere if a prescribed person does not act or moves to destroy relevant information.

I draw the attention of the House to two sections of the Bill which refer to special cases. The section on law enforcement provides for the disclosure of relevant information other than that pertaining to defence, international relations or intelligence matters which might reasonably be expected to facilitate the commission of an offence or impair the enforcement or administration of, or compliance with, any law or legal proceeding. This provision is subjective and I would worry about whistleblowers faced with such a lack of concreteness. Should they take the risk that they might not be protected under the Bill?

Even if they run that risk, if they decide they are going to take their chances, the disclosure is not a protected disclosure unless it complies with sections 6(1)(a), 7 or 9. Section 6(1)(a) relates to a disclosure to an employer, section 7 to a disclosure to a prescribed person and section 9 to a disclosure to a legal adviser. Does that mean the person can never make a disclosure to the media which will be protected?

Section 18 relates to security, defence, international relations and intelligence. I suppose there are many who wonder about the extent to which the Irish security apparatus has information which is really of international significance or affects international relations and intelligence, but I would like to think that it does, particularly with regard to Shannon Airport. There has been much controversy of late with regard to the troops who are going through Shannon Airport. It has to be borne in mind that those troops who go through Shannon Airport are going in pursuit of sanctions, methods and goals which have been endorsed by the United Nations and are fully lawful. There is much discussion about this. I have met Reprieve, an international organisation based in London which does much work on the death penalty, but also on drones and rendition flights. Rendition flights are wholly at odds with international law, as are the operation of drones and unmanned warplanes which are used to kill civilians in the Middle East and central Asia, primarily in Afghanistan, Pakistan and Yemen. If these were to be going through Shannon, that would be highly unlawful and at odds with international law. If somebody was being rendered through Shannon, that would be abhorrent to international law and the law of the State, and yet if somebody were to obtain that information, he or she would have to make the disclosure in accordance with sections 6(1)(a), 8 or 9. A disclosure under section 6(1)(a) is to an employer. One would have to assume that the person's employer might do very little about it in the circumstances, particularly because of the gravity of the effect the disclosure would have. A disclosure under section 8 would be to the Minister. Ministers, we have been told, always accept blandly assurances from the American ambassador. A disclosure under section 9 would be to the person's legal adviser, by which time the person would possibly be prosecuted under some incredibly draconian legislation. While I welcome the legislation, its parameters could be broadened considerably to be a badly needed beacon for whistleblower legislation in Europe.

An Leas-Cheann Comhairle

The next speaking slot is shared by Deputies John Paul Phelan and Eoghan Murphy. I remind the Deputies that at noon we will take Leaders' Questions.

Deputy John Paul Phelan

I welcome the legislation and have been listening to most of the debate this morning.

It is a commitment in the programme for Government that we would introduce a piece of overarching whistleblowing legislation. A number of Bills have been introduced into the Oireachtas in my time that contain sections dealing with what are termed protected disclosures, and it is important that a single overarching piece of legislation is introduced in this area. I agree with Deputy McNamara that perhaps there are certain areas where it could be broader in terms of scope.

I was struck by what one or two of the Members stated about a mentality that exists in Ireland against what they termed as the informer. Perhaps from our history there is such a mentality but I do not believe that somebody who has a legitimate concern about an illegal act taking place in the organisation to which he or she belongs should be confused with somebody who is an informer. Somebody who has witnessed something which he or she believes to be inappropriate, to be wrong or to have a potentially negative impact on somebody else in that organisation or a member of the general public is in an entirely different category. We cannot ignore the fact that, historically, certainly in an Irish context, there is a general antipathy to those who would loosely be termed as informers. However, whistleblowers are an entirely different category of person.

Whistleblowers have not been legally protected over the years. Previous speakers have correctly gone through various instances, most notably with regard to the way we have treated the most vulnerable in society, particularly children, over generations, in which it would have to be said that a great many people should have had serious knowledge of abuses that were taking place and chose, perhaps for varying different reasons, not to act upon that knowledge. We cannot ignore the fact that in some of those instances it may well have been because they did not feel they had the legal protection required to act upon it. That is why this legislation to be greatly welcomed.

The scope of the legislation is to ensure that a disclosure is protected where a criminal offence has occurred or is likely to occur; where a person has failed or is likely to fail in a legal obligation that he or she is due to carry out; where somebody suspects that a miscarriage of justice has occurred; where the health and safety of an individual may be at risk; where there may be potential damage caused to the environment; where unlawful, corrupt or irregular use of public funds may have taken place; and where, by an act or omission in the course of his or her duty, a public official may act in an oppressive or, as it has been interestingly termed, "improperly discriminatory" fashion - one would wonder what sort of discrimination is proper, but that is the legalistic term that is put on it. Those aspects of the legislation are to be welcomed.

The Labour Relations Commission is in the process of preparing a code of practice for workers and employers as to how this legislation might be enforced directly in the workplace. That is to be greatly welcomed and should be expedited as soon as possible.

I agree with Deputy McNamara that this legislation could be broader, but it is signally important that we are introducing overarching whistleblowing legislation to protect those who have legitimate concerns about how public money is spent and about how other citizens are treated by arms of the State or other organisations within the State, and that is why I wholeheartedly support it.

Deputy Eoghan Murphy

In the context of the Bill, I was not going to speak about the recent situation with the Garda whistleblower in the Committee of Public Accounts, PAC, but after listening to the debate yesterday and this morning, there is a particular point I want to make. Somebody said that if one had stayed inside the bubble of Leinster House one might have come to the conclusion that it was not correct for the Garda whistleblower to appear before the Committee of Public Accounts because the committee would be acting outside of its remit, but that if one ventured out into the wider world, talked to the public and heard that people in fact wanted the Garda whistleblower to appear before the PAC, the conclusion would be that the PAC took the correct action in calling the whistleblower in. I do not disagree with this negative reflection of the political bubble here in Leinster House, but it is not our job simply to always follow public opinion or media direction. Our job, in the Burkean sense of the reflection of the responsibility, is to use our own judgment; it is to lead. Public opinion is not always correct and does not always have the full facts on these matters. For example, when I spoke to people, I found they were not necessarily aware of the detailed report done by the Comptroller and Auditor General in August last on this matter, that he had met with a whistleblower, that following that meeting he had investigated the penalty points system in its entirety, and that he had looked at issues such as the fact that one in two company cars were not summonsed, 3,000 fixed charged notices were disallowed because they were statute barred and 2% of the system had fallen down because of an issue with notepads, and in all of this, in addition, there was a concern regarding the use of discretion in only 5% of the system.

Debate adjourned.