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

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

This a landmark moment. The previous business, which was unnecessarily truncated at an important point of questioning, flows into the debate on the Protected Disclosures Bill 2013. This debate is really a subset of the discussion we have been having all day. A culture of power and entitlement has brought forward the disclosures-----


Hold on a second, Deputy, until we have silence in the Chamber.

Hold on a second until they go back where they came from.

I am picking up on where I stopped the last day. We are looking at the whole area of protected disclosures, which includes whistleblowing and bullying in various places, including workplaces, schools, homes, the Dáil and the Seanad. It is all a symptom of the same disease. It is timely for the various components of that disease to be addressed. On the face of it, one would welcome the Bill before the House. It shows an urge or an appetite to do something about something that is very wrong. At its most extreme, is it not really sad that for 15 years, Louise O'Keeffe had to keep enduring the exact same evidence that was heard in the High Court and the Supreme Court? Her case was covered over and blanketed down and findings were made against her. When it reached Europe after 15 years, this grave injustice and shocking abuse was properly understood for what it is. This suffering was caused by the atmosphere of pervasive fog that lies across this country in establishment areas, in professional areas, in religious areas and in political areas. The little person is always expendable and is always hurt.

During his contribution to this debate, the Chairman of the Committee of Public Accounts, Deputy McGuinness, provided four excellent examples of justice being obstructed in an absolutely and totally unreasonable manner. This country needs to have its conscience awakened at its core. That is why a Private Members' Bill that consists of just 27 words is now in the draw to be considered on Second Stage. It seeks to awaken the conscience in this House and in the Seanad. It proposes that "the members of each House of the Oireachtas shall be representatives of the whole people, not bound by orders or instructions, and responsible only to their conscience". That is why we have to get our consciences awake. One could say that the Protected Disclosures Bill 2013 merely plays with the edges of conscience. The other Bill I have mentioned, which could and should become part of the Constitution, is identical in its wording to the second sentence of Article 38.1 of the Basic Law for the Federal Republic of Germany and would serve us extremely well. It is based on the principle that underlies policy-making within parties and party discipline. It gives people the assured liberty of citizenship to do things rightly, openly and honestly, without fear of consequences.

I know people might cynically think I am taking the opportunity presented by the debate on this Bill to present a warm-up awakening for the next Bill, which is far more important. I have experience of what can happen with certain matters that need legislation, or do not need legislation as the case may be, in the absence of absolute respect for the dignity of the individual consciences of elected representatives and those who are appointed to the Seanad. Our system is a little different from the Bundestag system in respect of the Seanad. We have given a bad example to the rest of this country by having these orders and Whips, etc. Of course people can come to agreements on policies, as long as the underlying fundamental principle of conscience applies to those who have a platform as representatives of the whole people. That is what Burke talked about. Jesse Norman's book, which was written in the early part of last year, is a very timely work for us all to read in that context.

In recent weeks, we have spent a great deal of time trying to grapple with issues of whistleblowing and bullying. We have been skirting around what we all know needs to be done. It is obvious that a full inquiry is needed. Children could tell us that.

Children would tell us that as responsible adults, particularly as elected representatives debating and making law, we should have the full freedom of conscience to do things properly. It takes my breath away that Ms Louise O'Keeffe had to experience what she did through the legal process.

The Protected Disclosures Bill sets out a formula, calibrating what is included and what is not. We all know when something is right or wrong. When something does not feel right, it is probably wrong. I got that feeling on two occasions in this House last year. First was the absurdity of the debate on the abolition of the Seanad. People argued that it was not the right proposition and then pressed the voting buttons in accordance with the Whip. It would be wrong to ask our children to do that and yet leaders of parties insisted that it was the right thing. It beggars belief. I heard good speeches supporting the idea of a second House for debate purposes, for new and fresh ideas, for courage and all those things, and then they voted it down.

What does the Government want? Does it want oppression of minorities, oppression of ideas and oppression of conscience? Where does it stop? The Members of each House of the Oireachtas shall be representatives of the whole people, not bound by orders or instructions, and responsible only to their conscience. I am glad the Minister seems to be thinking about it. He should think and reflect, and do what is necessary.

I wish there had been 166 signatures to the Thirty-Fourth Amendment of the Constitution (Members of the Houses of the Oireachtas) Bill. I do not particularly want mine to be the only signature. If it happens, I will be delighted take my name off and just be carried by the other 165. That is what it should be. Who is afraid? If somebody is afraid of it, then things are even worse than I thought.

Will the Deputy talk about the Protected Disclosures Bill?

This Bill flows from it. Unfortunately the timing is back to front. I hope I am lucky in the draw. I mean it when I say that everybody can have a spring in their step. When we had statements earlier today, none of the Minister's colleagues were in the House. The public think we watch it on the monitors. While Members might do so, they do not get the chemistry of the situation. People have meetings. We do not have virtual families and virtual breakfast table discussions. If possible people get together in order to get the tone, texture, feeling and music of the situation. Those are the best decisions. That is why the leaders of the world's countries get together - they do not do it over the Internet or the telephone.

Those are the precursors, the reminders and the memoranda following it. Let us wake up the conscience of the country. Let us get the Constitution infused. In his contribution Deputy Bannon referred to Article 28.4.1° of the Constitution, which states: "The Government shall be responsible to the people of Ireland." That is fine, but the Government is a tight little circle and can get corrupted - it can auto-corrupt. We are here as elected Members and there is a collegial responsibility. It is a great honour to be a representative of the people. We should not be afraid, nor should we be bound by orders or instructions.

As the memorandum accompanying the Bill fleshes out the details I recommend that Deputies read it. I hope it will be drawn. The Bill before us flows from the one that waits to be drawn and discussed.

As no Government speakers are offering, I call Deputy Healy-Rae.

I thank the Technical Group for allowing me some speaking time. I acknowledge the presence of the Minister. This is a little complicated because I want to speak to the Bill, which I have to do-----

It would be a novelty so far if the Deputy does.

I will try to do so. The Bill is very much intertwined with the matter we debated earlier today. I acknowledge the valuable, important and forthright contributions made by Members from all sides of the House in the previous debate. The Minister will appreciate what I am trying to do in that there is an interconnection between speaking to the Bill and the earlier debate. I know the Minister will respect me for this.

I do not want anybody playing political football with members of An Garda Síochána. I do not have to look too far from where I am standing to see members of An Garda Síochána, for whom I, my colleagues and everybody should have nothing but the utmost of respect. The rank and file gardaí do what can be a very difficult job at times. It is a challenging job that they have chosen and are proud and glad to carry out. However, it is not appropriate for politicians to play political football with their jobs.

At the same time the Government has a very serious problem, as has rightly been pointed out already today. Unfortunately the Minister for Justice and Equality is completely detached from An Garda Síochána, from his colleagues here in this House and from the people who elected him. He seems to carry on with a certain arrogance that is not befitting of the job he holds. That might be a debate for another day or a different forum, but at the end of the day it is a problem. The Minister is an experienced politician and he knows, as do the media and the people, that we have a problem with the Minister for Justice and Equality. That is unfortunate and I get no satisfaction from saying it. However, it is not appropriate for a person to detach himself from a situation and try to push everything away, claiming he is right and everyone else is wrong. Unfortunately the country is suffering from that at present.

Of course whistleblowers need to be protected but we also need protection for those against whom allegations are made. A person might be unhappy in a job for various reasons and through no intention of the Minister's could wrongfully use the whistleblowers legislation to get at somebody, which is not right. I know that neither the Minister nor the Government wants that to be the case. While we need protection for whistleblowers, we need fair play and justice for the people against whom allegations and complaints are being made.

As Deputy Mathews rightly said, in society today we need to stand up against those who bully, intimidate and try to put down others. Many of us suffer from this in our walks of life. Some of us are tough enough to put up with it, but unfortunately more people are not. I have read some of the files of whistleblowers.

Their families have put up with a great deal; they have suffered in their jobs, and that is not right. Regardless of whether one is a county council worker sweeping the streets or elected to this House to represent people, in my eyes and in the eyes of the Minister every person, irrespective of his or her grade or job, is equal and entitled to be treated with respect and to be given fair play. The Minister knows that whistleblowers in the past have not been listened to or treated properly or fairly. I would argue with the Minister that a balance must be struck. I do not want political footballs being made out of any sector, and particularly not out of An Garda Síochána. The majority of its members are respectable people, going about their jobs, taking on the role of protecting society against criminals and wrongdoings but, unfortunately, where they have come across instances of wrongdoing and put up their hands and said they want to speak out against that, they have not been treated properly or fairly. I do not want to apportion blame indiscriminately or wrongly but much of what has gone on must fall on the desk of the Minister for Justice and Equality. It will be up to him in the coming days and weeks to decide whether he will continue in his role, but much of that will come down to the Taoiseach and his views on the matter.

There has been a great deal of kicking the can down the road by the Government. Nobody would deny that the recent Cabinet meeting, at which a decision was made to appoint a senior counsel to investigate certain matters, is a case of kicking the can down the road. It is a case of taking the pot off the cooker for it to cool down a little. In the same way, it is hoped the focus of public opinion will move from the matter at hand and the hot pot that has been the issue in recent days will die away, but unfortunately it will not. In recent days the Government made a big mistake in, first, ruling out of hand having a sworn public inquiry and now saying if it is told to have one it will have one, but it has to wait until it is told to do so. The Government should not have to wait to do something that is right. The Opposition has rightly called for a sworn inquiry into recent matters. Unfortunately, the Government has played an excellent game of brinkmanship in yesterday's Cabinet decision to kick the can down the road by appointing a senior counsel to do a job and that if he tells it that it has to do something, it will do it but until then it will not. That is not right; it is not a proper decision. That is not what the people would have expected from their national Government.

In regard to bullying, everybody in his or her respective role may have been affected by bullying. I know for certain, and pity about me, that I have been bullied by national media and by Ministers and have been wrongfully put to the pin of my collar at times. Lies have been told about me but I am able to take that on the chin. That is part of my job unfortunately as a public representative, but it is not nice. What about people who are not able to take that type of behaviour on the chin? What about people who are going about their jobs, quiet, nice, ordinary people who find themselves working and living in intolerable situations? If I thought what the Minister is proposing in his whistleblowers legislation would be helpful to people in that type of situation, I would support it. The legislation must be fair and equitable for all.

The Government is faced with a problem, and how it will be handled will be teased out in the coming weeks and months. The Government has to examine its decisions and how certain people in government have handled situations they have known about for a number of years. It is not right that people have to go from Billy to Jack and back again with their complaints, hoping that somebody will listen to them. Since the confidential recipient in An Garda Síochána was relieved of his duties, members of the force have not had anyone to whom they could go when faced with a problem. I hope this legislation will be a change for the better. At least it will be better than there not being anyone there for them. The Minister will be aware there was no person in that role for the past week or ten days and that members of An Garda Síochána had nowhere to go if they had complaint. If the Government is addressing that problem, I wholeheartedly welcome it. I hope it will be a proper recourse with which members can engage if they have complaints.

More so than people in other sectors of society, members of An Garda Síochána, because of the various difficulties associated with their roles, encounter problems about which they need advice and guidance. We do not want it to be a free for all in society whereby unjust accusations can be made about people. It could be the case that a boss in a local factory might not be popular with his workforce and a whistleblower could make a false accusation about him or her. We must have protection for the whistleblower, for the people against whom accusations are made and a proper avenue for complaints to be teased out and debated in an open, fair and proper manner.

The Minister would have to admit that the earlier debate and the debate on this Bill are intertwined. I did not like some of the earlier debate because it amounted to some people playing political football, particularly with An Garda Síochána. That is not right nor is it good for the force, on which we rely to ensure we live in a safe society and to which we look to uphold the law of the land in the best way it possibly can at all times. Much of what went on today was not supportive of that. I do not want collateral damage to be caused to the image of An Garda Síochána because this House and Government must ensure we have respect for An Garda Síochána. Some of the Minister's behaviour since his appointment as Minister for Justice and Equality certainly has not been conducive to supporting An Garda Síochána. I would like if he was here to contradict that, and I would like to hear him do so. I hate talking about someone in his or her absence but I hope I am being fair in my comments.

All I want from this legislation is that it will work, will be acceptable to all and that in time people will say it is fair and that they can work and live with it. I hope that in the coming weeks and months we will be able to sort out the current difficulties because they have to be sorted out. It has been wrong that these situations have been allowed to drag on for so long.

It is painful to see people outside the gates of the Dáil seeking reassurance and support, and to have what they see as wrongdoings sorted out.

That is no place for those people to be. They should have a proper place to go to and have proper redress of their situations. I hope that will happen over the coming weeks and months. I thank the Minister and again thank the Technical Group for allowing me some of their time on this very important matter.

I thank all Members who contributed. I believe this is the fourth occasion the Bill is before the House, which is because it is important legislation. I suppose events of recent times have underscored its importance and topicality but also its centrality in the reform agenda the Government is putting in place. I thank all Members for their very varied and interesting contributions, some straying well beyond the environs of the Bill itself, but that is the way debates happen in this House, which is not necessarily a bad thing. I have noted all the remarks made. I believe I have been present for all of that debate. I look forward to having more detailed discussions with Deputies on Committee Stage, and I know there will be a good debate at that level also.

I want to respond to some of the points made by Deputies during the course of Second Stage contributions. There is a particular and understandable focus in the contributions of a number of Deputies, continuing today, on how the legal framework will accommodate whistleblowing involving members of the Garda Síochána. Section 19 of the current Bill relates to the regulation made under the Garda Síochána Act 2005 in regard to the making of protected disclosures by members of the Garda Síochána. I would like to advise the House that work is under way involving officials from my Department, together with officials from the Department of Justice and Equality, to determine how best to ensure a legal framework for Garda whistleblowing under the 2005 legislation is fully aligned with the principles enshrined in this new, modern Bill. This relates to both internal disclosures by members of the Garda Síochána and those made to a prescribed body which, as has been announced, will of course be the Garda Síochána Ombudsman Commission, GSOC.

The intention is to expand GSOC's remit by making a specific amendment to this Bill which would allow GSOC operate within the architecture of the Protected Disclosures Bill and accept reports, complaints or observations from Garda whistleblowers or members of the Garda Síochána. The new system will replace the system that was put in place by the existing 2005 Act. Deputies will, I am sure, concur with my view that the priority must be to ensure the legal framework for Garda whistleblowing is fully effective, that it works, that it protects members of the Garda Síochána and that it is consistent with the principles of this Bill, which is regarded as world class. For that reason, I was invited to make a presentation on it at the Open Government forum last year.

In regard to the comments made concerning the creation of an oversight role to monitor ongoing operation of the Bill, as I stated in my opening remarks, that is something we discussed at some length in the Seanad. I believe it is important that an appropriate period be allowed to ascertain whether the legislation fully meets the objectives and the ambitions we have set for it, and we are ambitious in this regard. This is an innovative and, as many Deputies have acknowledged, by necessity a complicated framework we have laid out to strike the balance for which Deputy Healy-Rae has quite properly asked, namely, that an accusation is not a fact until it is properly weighed and analysed. We need to have a robust, accurate framework for protecting somebody who identifies wrongdoing and wants it rectified, but also to protect people against whom accusations are made to ensure false and damaging accusations are not allowed to be untested. As with the normal balance of justice, we have to ensure an accusation is not definitive proof. We have, I believe, in this complicated mechanism, struck the balance right in terms of best practice in the most progressive regimes we have looked at, and then migrated it into this legislation.

I will approach any amendments submitted on Committee Stage with a completely open mind because, as the Deputies opposite know, I claim no complete wisdom on these matters. Everybody will come with their own ideas and where good ideas are proffered, the Deputies will find in me a willing ear.

The processes involved will take time to establish themselves. We had this debate in the Seanad. There will not be a huge number of definitive cases in the first year, given that is the practice we have had. We need to have a representative sample before we review, but we need to have a proper review and that is what will be done. It would seem premature to establish a monitoring body at the outset. I have provided, however, for a detailed review of the operation of the Act to be carried out within a five year framework, which, from talking to colleagues abroad, seems to give sufficient time to have a real feeling for the operation of the Bill. Needless to say, if any serious issues emerge regarding the efficacy of the legislation at any stage, I would certainly be very happy to return to it, and there will be a role for the legislative committees in that regard.

Deputy Pringle raised a concern regarding a disclosure which might be made to the wrong person and whether the whistleblower would be entitled to protections on how the matter ought to be handled by the recipient in such circumstances. The code of practice being prepared by the Labour Relations Commission will clarify procedural arrangements for the making of protected disclosures by workers and the manner in which they should be handled by employers. It would be a matter for the relevant Houses to decide how disclosures made directly to Members of the Oireachtas, for example, might be handled. As was explained on Second Stage, the Labour Relations Commission is working right now with employers and trade union representatives to have an agreed code of practice. We need to educate people in the operation of this because having a legislative framework that nobody knows about would be worthless. We need to have trade union members, workers who are not in trade unions and employers all familiar with this new architecture. That will be the cultural shift I have talked about, which will ensure people respond properly, effectively and quickly to concerns expressed by workers in the workplace.

It should, of course, be noted that in regard to disclosures under section 17, which deals with matters relating to law enforcement, there is provision in the Bill for procedures to be established by Standing Orders of either House of the Oireachtas as to how Members are to deal with such information disclosed to them under that section. There will be a job of work for the Oireachtas itself to define its own Standing Orders and procedure. Therefore, should matters of law enforcement be presented to, for example, Deputy Mathews, he would be sure in his own mind how to deal with that.

I know this from personal experience. When I was presented with very concerning evidence in regard to the operations of some gardaí in Donegal, my choice was to go privately to the then Minister for Justice, Equality and Law Reform, although I was advised later that I would have much more protection if I stood up and made the allegations on the floor of this House. I had no protection, as I discovered, by simply giving them to the Minister. We need to make the Standing Orders of the House clear in order that Members can be sure-footed in how they deal with any significant information that comes to them in future.

It is an unfortunate fact that the need for whistleblowing protections arises as a consequence of the ability of employers, both in the public and private spheres, to penalise, sometimes to the point of dismissal, employees who bring wrongdoing in the workplace to their attention. The scope of employers to strip employees of their livelihood or their potential for promotion, or just to make their life miserable, leading to permanent disadvantage in the regaining of employment, has long been recognised as a significant disincentive to workers to report wrongdoing. That is the cultural shift we have to address, and I have tried to address it in this legislative framework.

Will political parties be included?

I made plain in my opening remarks that several authoritative international bodies had given this matter consideration and made recommendations as to best practice in respect of whistleblowing legislation. The similarity between the recommendations of these bodies is so striking as to confirm the need for workers to be protected against unscrupulous employers. I have had ongoing dialogue with Deputies in the House. Bullying is pernicious but often people do not see themselves as bullies. People who are convinced of their righteousness and the correctness of their view can even bully people they feel are bullying them. It is a peculiar fact that I have occasionally come across in my workplace. That is not to say that all issues fall into that category but there is need for legislation. This has long been recognised by me and my party. I sponsored this type of legislation in Opposition and am really pleased to be given the privilege of introducing it as a member of Government. It is much more fleshed out and comprehensive legislation than I could produce in Opposition.

It is inevitable in the context of an employer-employee relationship that an employee who reports wrongdoing will be the weaker party and vulnerable to penalisation, particularly where the employer is not prepared to countenance the reporting of wrongdoing. That is occasionally the reality. In terms of the levels of compensation set out in the Bill, it is correct to say that they represent amounts that exceed the norm for unfair dismissal and so on. However, when one considers all the evidence available, it is clear that persons who suffer detriment at the hands of their employers for reporting wrongdoing rarely prosper. It is a point that was made repeatedly by contributors to this debate. If anything, the opposite is the case and, more often than not, such persons suffer significant personal and financial harm. All things considered, the levels of compensation set out in the Bill are greater than the norm for a good reason and are fair. I am aware of Deputy English's concern about the issue of interim relief.

As I mentioned in my opening remarks, the Bill I have presented compares favourably with international best practice and, in my view, represents an extremely positive development in our anti-corruption framework. It is just one arm of it but it is an important step. I appreciate there will be other Deputies with amendments to propose. I hope we have a good lively debate and I want to ensure that at the end of our discussions, we will have a very robust legislative framework of which we can all be proud.

Has the Minister an approximate time for Committee Stage?

We have a tentative date but I need to finalise the latest amendment with the Department of Justice and Equality which I am still working on. I hope to get it before the end of March.

Question put and agreed to.