Dáil Éireann debate -
Thursday, 12 Jun 2014

Vol. 843 No. 6

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

Debate resumed on amendment No. 40:

In page 18, to delete lines 11 to 16 and substitute the following:

“102A. (1) Where a disclosure relating to the Garda Síochána is disclosed to the Ombudsman Commission as a prescribed person under section 7 of the Protected Disclosures Act 2014 in respect of disclosures so relating, it may, if it appears to it desirable in the public interest to do so, investigate the disclosure, even if the worker (within the meaning of that Act) making the disclosure is a member of the Garda Síochána.”.

-(Minister for Public Enterprise and Reform)

Deputy Sean Fleming

We were discussing amendments Nos. 40 and 41 and I have already made most of the points I wished to make. There are relatively small but significant differences between the amendment I have proposed and what the Minister is proposing. In an earlier draft of the Bill that we discussed on Committee Stage, if the Garda Síochána Ombudsman Commission was to be the prescribed body for dealing with complaints from gardaí under the legislation and if the matter was in the public interest, the Bill provided that GSOC "may" if it so chooses, carry out an investigation. My amendment, No. 41, provides that GSOC be prescribed, with no ifs, buts or maybes about it and that if a matter is reported to the commission by a member of the Garda Síochána that was in the public interest to investigate, then GSOC "shall" rather than "may" carry out such an investigation. My amendment does not give the commission discretion or enable it to sweep something under the carpet, particularly when it is in the public interest. The Minister has come back with a revised amendment following our Committee Stage debate which reads that the Minister "may" by order, prescribe GSOC as the recipient body. However, he does not deal with the issue of requiring GSOC to investigate matters that are in the public interest. His amendment falls short of what I had sought to achieve.

In my earlier remarks before this debate was adjourned, I asked that the Minister give me a definite date by which he will prescribe GSOC - by way of statutory instrument presumably. Perhaps he will say he can do it next Wednesday or that the Department is already working on it. Sometimes when legislation is passed, the statutory instruments are ready to roll immediately while other times they take a number of days, weeks or even months. Can Minister tell me whether he will have the relevant statutory instrument laid before the Oireachtas within seven or 14 days? I seek a commitment on an exact date.

Minister for Public Expenditure and Reform (Deputy Brendan Howlin)

The Deputy is calmer in his post-break intervention than he was beforehand. We were making very considerable progress on a consensual basis. I always try, in as far as is practicable, to be open and amenable to Opposition amendments. I have never worked on the basis that this side of the House has all knowledge and wisdom. In that context, I was taken aback by some of the things the Deputy said in advocating his amendments on this issue because we had made progress on 40 amendments prior to that.

I have a few general points to make. The Deputy's tone belies the fact that at least three times he voted against whistleblower legislation in the last Administration. I introduced such legislation twice and Deputy Rabbitte also introduced it. This is important. The Deputy made two net points and I tried my best to address each point that was made on Committee Stage, as I said I would, and I did not vote them down on the basis that I would come back to the Deputy and try to deal with them. On the issue of "if" the Ombudsman Commission is prescribed, I gave a firm commitment that it would be prescribed. I have come back now with a clear indication that this will happen. Now the Deputy has moved his focus away from the "if" to a different section of the Bill, namely, section 7, which deals with the general powers of prescription. Of course, the Minister "may" by order, prescribe such people or bodies as the appropriate recipients. This is a general provision for all time and does not only relate to An Garda Síochána. It relates to everybody so it is necessary to have that general prescription. Any order made by a Minister under that section has to be laid before the House and can be annulled by the House, if Members so determine. It remains in the command of the House to ensure that those prescribed to be the recipients are both appropriate and competent. I have said that I want the regime that applies to An Garda Síochána to be the general regime. Short of challenging my bona fides on this, I am giving the Deputy a commitment that GSOC is the organisation that will be prescribed as the appropriate body to receive disclosures of this nature.

On the second point, we had a long presentation of the facts before the break on the issue of "may". I have indicated that "may" is used because GSOC is an independent organisation. It is a statutory, independent body which, only yesterday, the Deputy was very robust in defending. Today, he seems to be saying that he has no confidence in the same body. He has no confidence in GSOC to do what is right. The Deputy cannot have it both ways.

Let us examine what we are amending here, namely, section 102 of the Garda Síochána Act of 2005, an Act which was introduced by Deputy Fleming's party. It gave that same concession throughout. It is a "may" rather than a "shall" provision. Section 102, subsection (4) reads as follows:

The Ombudsman Commission may, if it appears to it desirable in the public interest to do so and without receiving a complaint, investigate any matter that appears to indicate that a member of the Garda Síochána may have—

(a) committed an offence, or

(b) behaved in a manner that would justify disciplinary proceedings

That is the Act as it currently stands. Does the Deputy want to go back and alter every provision of that Act, which his party authored and supported in Government? Perhaps the Deputy has had a change of heart on these matters. When I was my party's justice spokesperson a very long time ago, in the early part of the 2000s, I introduced both a Garda ombudsman Bill and a Garda authority Bill, both of which were completely rejected, resisted and defeated by Fianna Fáil in Government at that stage. Let us bring some element of reality to bear on this. It is both ground breaking and important to have overarching whistleblower legislation. The fixed view for a decade of previous Administrations prior to this was that we should do this in a piecemeal way. I am saying now that we need to have overarching legislation and I am delighted that An Garda Síochána will be incorporated into the mainstream of this.

The Deputy's final point, made in a contrarian way, was that somehow this Government does not sign off on legislation that has been passed. Deputy Fleming tabled a parliamentary question to that effect and I replied that there were two Acts for which my Department is responsible whose enactment has been delayed. One is the Construction Contracts Act and I explained that we are currently working with the industry stakeholders to finalise the modality of it. As I explained in my reply last week, we have just distributed the latest guidelines on that. Of course, none of that is relevant to Deputy Fleming. There is legislation which has not been enacted going back a long way. For example, a referendum was passed to broaden the franchise for votes in the Seanad decades ago but legislation has never been enacted.

The other Act which is relevant is the Ministers and Secretaries (Amendment) Act 2013. I also explained why that was not immediately enacted. Within five days of the President signing that particular Bill, I wrote to the leader of Deputy Fleming's party to explain that I was not going to commence the legislation until July because I wanted to give time to the Independent Members to prepare for the quite onerous accounting mechanisms that would apply, at their request. I heard diddly squat back from them, in complaint about that, by the way. Let us not try to cheapen what is a very important and good debate with partisan political points which are distracting from the bones of what we want to do.

I believe that the two issues that the Deputy poses are well and properly met. First, I am giving a commitment that GSOC will be the recipient body that will be prescribed by me. That is the way it is going to be.

I have already indicated that I want to commence the legislation as quickly as possible following enactment. Obviously, technical drafting will be required when both Houses have passed the Bill. It was already passed by the Seanad but I will need to return to the latter in order to have it accept the amendments we have passed in this House. It would be my desire that all matters relating to the legislation will be done and dusted during the current session, hopefully before the end of this month. I would like to move as quickly as possible to bring it into force thereafter. As I informed Deputy McDonald, a communication exercise will be required as a result of the fact that what we are dealing with here is new and ground-breaking. Work is under way with IBEC and ICTU in preparing guidelines - in simple, readable language - for workers and employers in order that the provisions of the legislation can be implemented in an efficient, effective and user-friendly way and as expeditiously as possible.

Deputy Sean Fleming

The Garda Síochána Act 2005 has been in place for nine years. The Minister stated that my amendment contains a different wording from that which is to be found in the Act. That is probably a good thing. In view of the lessons we have learned in the past nine months - not to mention the past nine years - in respect of the Garda Síochána, perhaps it is time to re-examine that legislation. However, that is not our function today. What is important in the context of the Bill before the House is the number of documents and files given to Deputies, by whistleblowers and others, in respect of the serious matter of alleged malpractice within the Garda Síochána. The Taoiseach has indicated that he has received dozens of such documents and files. I do not know if there is anyone who does not believe that action must be taken in order to improve public confidence in the Garda in respect of certain matters. Lessons should have been learned in this regard. In that context, it is probably necessary to amend the Garda Síochána Act 2005.

The Minister referred to a particular referendum that was passed and the fact that the decision of the people was never implemented. He also referred to legislation being commenced within five days of the passing of another referendum. Despite the fact that the people voted overwhelmingly in favour of the question put to them, the result of the recent referendum on the rights of children has not yet been acted upon. I have confidence in the Minister for Public Expenditure and Reform but I do not have confidence in the Government of which he is a member. I only have confidence in him and, perhaps, one or two other Ministers. That is my difficulty. I believe the Minister when he says he wants to implement the legislation. However, he is not in a position to indicate that he will still occupy his current position in four weeks' time. I would like to think that he will remain where he is, and perhaps that will be the case. A number of Government Ministers who spoke on the radio this morning indicated that there would be a Cabinet reshuffle immediately following the change of leadership in the Minister's party. Several Ministers have indicated that the reshuffle will take place within a month. Nobody cannot assume that he or she will either be in government or in a particular position in the aftermath of that reshuffle. Nobody is in a position to provide a commitment in respect of what he or she will do in his or her Department next month. I accept the Minister's bona fides but there are others on this side of the House who might challenge them. Like members of the public, however, I lack confidence in the Government. It would be somewhat unrealistic for those of us on this side of the House to accept with full confidence everything that is said on the opposite side, particularly as the public does not accept it.

We do not know whether the Minister is going to be around to honour the commitment he has given. I am of the view that if he is in his Department in a month or two, he will honour it. However, I cannot accept what is being offered at face value. If he is asking me to have full confidence in the person who might take over from him as Minister in his Department, I cannot do so. There are several members of the Government in whom I have zero confidence. Notwithstanding that the Minister is acting in good faith and irrespective of the regard in which I hold him, I do not have confidence in the Government, as a collective entity, to deliver on what is provided for in the legislation. It is not his fault that I have doubts about the legislation being implemented in the timescale he has outlined. The Minister is a victim of the state of flux that currently obtains in the political arena. A number of his colleagues in government have referred to the fact that a reshuffle is going to take place and I do not know who will be Minister for Public Expenditure and Reform in its aftermath. Will the Minister indicate whether the legislation can be implemented by 4 July next?

Deputy Brendan Howlin

That depends on how quickly the House concludes its business. If we can conclude our deliberations on the Bill today-----

Deputy Sean Fleming

We will.

Deputy Brendan Howlin

-----then it will proceed to the Seanad forthwith. I will not be in any way deleterious when it comes to advancing it to enactment.

Deputy Sean Fleming

I was going to press the amendment in my name to a vote but I will not now do so. I hope the Minister accepts what I said about the broader issue in good faith. I will communicate with my party's spokesperson in the Seanad and if matters do not move quickly there, I will suggest that the appropriate actions - including votes - be taken there. I trust the Minister will try to ensure that the Bill is taken in the Seanad promptly.

Deputy Brendan Howlin

I will do so.

Amendment agreed to.

Amendment No. 41 not moved.

An Ceann Comhairle

Amendments Nos. 42 to 45, inclusive, are related, while amendment No. 43 is a logical alternative to amendment No. 42. Amendments Nos. 42 to 45, inclusive, may be discussed together.

Deputy Brendan Howlin

I move amendment No. 42:

In page 19, to delete lines 9 to 13 and substitute the following:

“Internal procedures for protected disclosures made by workers employed by public bodies

21. (1) Every public body shall establish and maintain procedures for the making of protected disclosures by workers who are or were employed by the public body and for dealing with such disclosures.

(2) The public body shall provide to workers employed by the body written information relating to the procedures established and maintained under subsection (1).

(3) The Minister may issue guidance for the purpose of assisting public bodies in the performance of their functions under subsection (1) and may from time to time revise or re-issue it.

(4) Public bodies shall have regard to any guidance issued under subsection (3) in the performance of their functions under subsection (1).”.

The amendments in this group relate to the internal procedures to be put in place by public bodies, the guidelines to be put in place by the Minister for Public Expenditure and Reform in respect of the content of those guidelines and the information to be provided by public bodies to the Minister. Much of the content of the amendments relates to the matters we have been discussing up to now.

The purpose of amendment No. 42 is to elaborate on the provision in section 21 requiring public bodies to establish and maintain procedures. As the Bill has progressed through both Houses, a number of suggestions in respect of establishing and maintaining procedures have been articulated by both Senators and Deputies. In that regard, I wish to record my gratitude to Deputy McDonald, who agreed to withdraw a related amendment on Committee Stage in order to provide me with the opportunity to consider the matter she had addressed in that amendment. Many issues surrounding the maintenance of consistency in internal procedures would normally fall to be dealt with by my Department on an administrative basis and would not usually be provided for in primary legislation. That said, I sympathise with the concerns that have been expressed with regard to the need to ensure that consistency applies in respect of these matters. The amendment proposes the inclusion, in section 21, of a provision allowing the Minister to issue guidance, together with a requirement that public bodies shall have regard to any such guidance issued. This approach represents normal administrative practice and provides the Minister with a greater degree of latitude in respect of the matters to which the guidelines relate. Above all, it deals with the issue of consistency, which we discussed on Committee Stage.

On amendment No. 43, in the past I have referred to the difficulties associated with the inclusion of volunteers within the ambit of the Bill. The lack of a contractual arrangement between the relevant parties gives rise to difficulties in accommodating volunteers within the framework of legislation in a meaningful way. People who are volunteers are not employees in any strict sense. I am cognisant of the concerns that were raised in respect of volunteers in the context of amendment No. 43. While I do not propose to accept the amendment, I will ensure that specific provision for volunteers will be made in the guidelines to which I referred when discussing amendment No. 42. I will also require that information on the relevant procedures will be circulated to all such persons.

It is important to say such an approach does not bring volunteers within the remit of the legislation because we cannot provide for a Labour Court determination. However, that was not the point made on Committee Stage. I have said that, in view of the absence of any contractual relationship and the non-remuneration status of volunteers, it is not intended, as debated on Second Stage and again on Committee Stage, to bring volunteers within the ambit of the legislation. However, the guidelines I propose under the new amendment will broaden the legislation to ensure it provides a framework for public service organisations within which appropriate arrangements can be made to issue reports made by volunteers that do not fall within the ambit of the legislation. In essence, I am keen to ensure that where volunteers have something to report, there will be a mechanism in place for this to happen and it will be captured in the guidelines I propose to issue.

On amendment No. 44, I am conscious of the fact that the issue of the number and type of protected disclosures received by public bodies has featured in the debate in this and the other House. Amendment No. 45 tabled by Deputy Mary Lou McDonald reprises many elements of the debate. I have given the matter detailed consideration in the period since Committee Stage and I am bringing forward amendment No. 44 which proposes to insert a new section 22 to require every public body to prepare and publish on an annual basis anonymised information on the protected disclosures it has received in the previous 12 months. The publication of this information will provide for a significant degree of transparency in the operation of the Bill in public bodies. That was what we were trying to capture in the debate on Committee Stage. I believe and hope the proposal in amendment No. 44 meets the objectives of Deputy Mary Lou McDonald and, in view of this, that she will not proceed with her amendment.

Deputy Mary Lou McDonald

I will happily withdraw amendment No. 45 in favour of amendment No. 44. I was going to point out that there was a typographical error in my amendment, but it is hardly worth saying this now.

I am concerned about the issue of volunteers. I have no wish to labour the point or rehearse the argument, but I am pleased to hear that provision will be made in the guidelines. I accept absolutely that there is not the same contractual work relationship in the case of volunteers. Nonetheless we can envisage scenarios where a volunteer might face serious consequences for whistleblowing, including, perhaps, reputational damage. I am keen to ensure that within the guidelines for volunteers there will be an identified process and protections and remedies that volunteers will be able to access. What form does the Minister envisage this will take? I do not expect him to be prescriptive at this stage. I am pleased that he has again acknowledged the issue of volunteers and that they will be incorporated in the manner suggested.

Deputy Sean Fleming

I seek clarification on amendment No. 42. We have dealt with the topic before. The Minister's amendment refers to a public body. Will he indicate what he means by a public body? I realise it is included in the definitions section on page 6. There is reference to Departments, local authorities and other entities established under enactments, etc. There is also reference to a company, within the meaning of the Companies Act, in which the majority of the shares are held on behalf of a Minister of the Government. Does this include all commercial semi-State companies, as well as non-commercial semi-State companies? We have debated the merits under freedom of information and other legislation coming from the Department of whether certain State organisations should come under freedom of information legislation. The Minister's view, which I agree with, is that those organisations operating in competition should not come under it. For example, Aer Lingus should not come under FOI provisions since Ryanair does not. I accept that principle fully. The issue relates to monopolies such as Irish Water and Iarnród Éireann. I do not accept it in their case and understand the Minister probably thinks along the same lines. In this section does he distinguish between commercial and non-commercial semi-State bodies? There are commercial monopolies, for example, Irish Water. However, other commercial organisations such as Bus Éireann and the ESB operate in competition. Will this place a requirement on commercial semi-State bodies in competition with organisations in the private sector to produce reports, while competitors will not have to do so? Could this place them at a disadvantage? I gather EirGrid comes under the legislation. It was established under a statutory instrument, although primary legislation has been promised for years. Will the Minister confirm whether Irish Water will come under it? I expect that it will.

There is one company in which I am particularly interested. There is reference in the section to a company within the meaning of the Companies Act in which the majority of the shares are held by a Minister of the Government. What is the position on Allied Irish Banks and Permanent TSB? The majority of the shares in AIB are held by the Minister. Does AIB come under this legislation? We only have a minority share in Bank of Ireland which is exempt under this section. Will the Minister clarify whether there is a potential issue in this regard? We drew a clear line in freedom of information legislation such that it would not infringe on the rights of commercial organisations, but we do not appear to make the same distinction in this case. Will the Minister offer a comment on this? The example of Bank of Ireland versus AIB probably crystallises the debate.

Deputy Brendan Howlin

Different regimes will apply to freedom of information and protected disclosures legislation. Freedom of information legislation will apply to public bodies. It does not apply in the private sphere. The point of debate, to which we will return when the freedom of information legislation is taken on Report Stage, relates to commercial semi-State bodies. My view which Deputy Seán Fleming has supported is that we do not wish to disadvantage commercial State companies in such a way that it will give open access to information to their competitors. We may have to deal separately with monopoly State companies. This is an overarching Bill that will apply in the public and private spheres. The only difference relates to public companies. This includes all companies, including commercial companies. State companies are captured by the definition of a public body in the Bill. For example, one of the mechanisms allows for disclosure to the relevant Minister. This, obviously, does not apply to a private company. I hope that answers the question.

Amendment agreed to.

Amendment No. 43 not moved.

Deputy Brendan Howlin

I move amendment number 44:

In page 19, between lines 13 and 14, to insert the following:

“Annual report

22. (1) Every public body shall prepare and publish not later than 30 June in each year a report in relation to the immediately preceding year in a form which does not enable the identification of the persons involved containing information relating to the matters specified in subsection (2).

(2) Those matters are—

(a) the number of protected disclosures made to the public body,

(b) the action (if any) taken in response to those protected disclosures, and

(c) such other information relating to those protected disclosures and the action taken as may be requested by the Minister from time to time.”.

Amendment agreed to.

Amendment No. 45 not moved.

Deputy Sean Fleming

I move amendment No. 46:

In page 24, line 18, after “parties” to insert “within 60 days of receiving the complaint”.

This is an issue we discussed specifically on Committee Stage. I gave the Minister a lengthy and specific example of why I was coming at the issue. I will explain the point in order that those who are following the debate will know what we are talking about. We are dealing with Schedule 2 which relates to redress for a contravention of section 12(1). This relates to complaints to the Rights Commissioner. There is a mechanism whereby following a complaint made, a Rights Commissioner can grant the parties a hearing and give a decision to be communicated in writing to the parties. As I am trying to allow a little time, I propose the insertion of the words "within 60 days of receiving the complaint".

I provided the Minister with a specific reason for this, although there are examples everywhere. It can take a couple of years for a complaint to be dealt with by a Rights Commissioner because of a recalcitrant employer's refusal to attend, resulting in the meeting being postponed for six or 12 months, after which time the employer can pull the same stunt. This approach makes it difficult for a Rights Commissioner to conclude the work. I want to attach a timeline to the process, although I am not fixed on 60 days. If the Minister wanted it to be 160 days, I would accept it. Otherwise, the process could continue for years.

Deputy Brendan Howlin

The provision in Schedule 2 represents standard practice concerning complaints and the procedures for Rights Commissioners. I heard the Deputy's contribution today and on Committee Stage, but the workings of the Rights Commissioner Service's mechanisms is a matter for the Minister for Jobs, Enterprise and Innovation, not me. However, the Minister is addressing these issues and the arrangements for the administration of the rights commission complaints system are being examined. He is working on a new, more efficient system. Those proposals will be made to the House by way of legislation before too long. That will be the appropriate vehicle to propose a change in how the system works, not a Bill that is not the purview of the Minister for Jobs, Enterprise and Innovation. As the Deputy knows, the two-tier system is being integrated. A simpler, more efficient and time-bound system will be proposed.

Deputy Sean Fleming

I will withdraw the amendment on the basis that I will raise the matter with the relevant Minister when the other legislation is before the House.

Amendment, by leave, withdrawn.

An Ceann Comhairle

Amendments Nos. 47 and 48 are related and may be discussed together.

Deputy Sean Fleming

I move amendment No. 47:

In page 29, line 6, after "Court" to insert "following approval by both Houses of the Oireachtas".

This is an amendment to Schedule 3. We are getting close to the end. The first line of the Schedule reads: "The Taoiseach shall appoint as the Disclosures Recipient a person who is a judge or retired judge of the High Court." This person will report to the Taoiseach. As to my amendment, I do not know whether I made this exact point on Committee Stage, but the Houses approve the appointment of the Ombudsman and Information Commissioner and many other positions of senior standing. In the case of the disclosures recipient, my amendment would provide for the national Parliament's approval, not just the Government's. This would be better for no other reason than the fact that, when there was a confidential recipient in the Department of Justice and Equality, no one so much as knocked on the Department's front door because no one there knew who or what the confidential recipient was. I am afraid that the same will happen-----

Deputy Brendan Howlin

It would not have been very confidential if people were able to find out who it was.

Deputy Sean Fleming

Exactly. I am afraid that the disclosures recipient could end up in a similar little bunker about which no one knew. Oireachtas approval would be of help.

Amendment No. 48 relates to the same principle. Under the Bill, the "Taoiseach may remove the Disclosures Recipient from office, but only for stated misbehaviour or for incapacity." I would amend this to add "but only after a decision of both Houses of the Oireachtas". If a retired judge can be appointed, it is possible that someone in his or her 70s or even older could be appointed. The recipient can never be removed from office except for stated misbehaviour or incapacity. We must take the person out in a coffin. This is nonsense. The person must be allowed to die in office. What if there is no stated misbehaviour? For example, what if the recipient simply does not do the work anymore and gets lazy? This is not misbehaviour - it is a lack of behaviour. The Houses should have the authority to remove such a person. This would be an important measure, as providing that someone cannot be removed from office unless he or she is carried out in a coffin is not a good way to draft legislation.

Deputy Mary Lou McDonald

I see merit in Oireachtas approval for the disclosures recipient. Given the stature of the type of person envisaged in the legislation, one would hope his or her appointment to the role would not be a matter of controversy, but laying the matter before the Oireachtas would probably be good practice and do no harm.

Regarding Deputy Sean Fleming's second amendment, I have grave reservations about giving any Taoiseach an open-ended ability to remove the recipient from office. The recipient should only be removed for stated misbehaviour or incapacity, particularly after being ratified by the Oireachtas. It would not serve us well to give too much room for manoeuvre, as such removals could be interpreted as political decisions. In this spirit, will the Minister shed some light on the matter? We understand "stated misbehaviour", but what is the Minister's dictionary's version of what "incapacity" means? I also note that the envisaged term of office is five years. As such, it is not a case of instating someone ad infinitum and bearing with him or her until the person goes to his or her great reward.

Deputy Brendan Howlin

These amendments relate to the appointment and dismissal of the disclosures recipient, respectively. Amendment No. 47 deals with section 18. As I advised on Committee Stage, the role of the disclosures recipient is a narrow one. It has no real function other than to be the conduit for information that relates to section 18, namely, a narrow range of information pertaining to the security of the State and related matters. Section 18(1)(a) reads:

(i) the security of the State,

(ii) the defence of the State, or

(iii) the international relations of the State,

The role of the disclosures recipient is simply to consider whether the nature of the information provided to him or her is captured by section 18 and, if so, to pass it on to the appropriate officeholder. If it does not fall within section 18's ambit, the recipient will hand it back and explain why. The discloser can then find whatever conduit is appropriate for his or her complaint. Having reconsidered the limited nature of the role to be a conduit, we do not need to do much more than I have already set out in the Bill. I am satisfied that the direct appointment of the individual concerned by a the Taoiseach is sufficient.

Regarding Deputy McDonald's question on incapacity, it refers to medical incapacity and would involve a certificate of inability to perform the duty for medical or health reasons. The duty is not onerous.

The functions of the recipient are laid out in paragraph (5) of Schedule 3, which states:

5. Where a protected disclosure is made to the Disclosures Recipient under section 18, the Disclosures Recipient shall consider the relevant information and—

(a) if he or she considers that the disclosure of relevant information is not one to which [that security section] applies, shall give notice to the person by whom the disclosure was made stating that, and

(b) otherwise, shall make a report—

(i) referring the relevant information for consideration by the holder of such public office ... as appears to the Disclosures Recipient to be the most appropriate to consider the relevant information, and

(ii) including any such recommendations for the taking of action in relation to the relevant information as the Disclosures Recipient may consider appropriate.

Acting Chairman (Deputy Jerry Buttimer)

How stands the amendment?

Deputy Sean Fleming

I will not press it.

Amendment, by leave, withdrawn.

Amendment No. 48 not moved.

Deputy Sean Fleming

I move amendment No. 49:

In page 30, line 10, after “year.” to insert the following:

“The details of such report shall be published in such manner as would not in any way identify a person who has made a protected disclosure.”.

It is a very simple report. The Minister has made it clear that the role of the confidential recipient is narrowly focused regarding matters of security of the State and other such matters and that he does not expect a large amount of information to be submitted to this office, but my amendment proposes that in respect of the report required by the Minister in this section to the Taoiseach on the activities in the preceding year, the details of such report shall be published in such manner as would not in any way identify a person who has made a protected disclosure. I seek openness and transparency without the disclosure of any unnecessary confidential information, and in that way we will at least know the number of such reports.

In all legislation from our Government over the years, and perhaps it applies to other Governments also, there is a standard approach to exclude matters of security of the State and international relations from freedom of information, but international relations could be relevant to a taxation inquiry in respect of multinationals, if it comes to that. Sometimes we throw the cloak very wide to ensure information is not made available and to keep it under lock and key, so to speak, but a report should be published in such a manner as would not in any way identify a person who has made a protected disclosure in order to protect them. The Minister will probably agree with the principle in that regard.

Deputy Brendan Howlin

Deputy Fleming is right. We had a fairly long discussion on this amendment on Committee Stage. I did not accept it then and, on reflection, I believe I was right. In the event that the disclosure of the recipient determines that he or she should pass on information to the appropriate officeholder, I am satisfied that that information, by virtue of the requirements of section 18 of the Bill, is likely to be of such importance to the security of the State that its publication would not in any event be appropriate. The main reasoning behind the disclosure of such information to the disclosures recipient is that it would not be in the public domain, so it would run counter to that to require a reporting of it. What needs to be done is that an action would be taken by the officeholder regarding it, and I presume that would be pursued in the normal way by way of parliamentary question by Members of the House.

Acting Chairman (Deputy Jerry Buttimer)

How stands the amendment?

Deputy Sean Fleming

I am pressing the amendment.

Amendment put and declared lost.

Bill, as amended, received for final consideration.