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Dáil Éireann debate -
Wednesday, 27 Apr 2022

Vol. 1021 No. 2

Protected Disclosures (Amendment) Bill 2022: Report and Final Stages

Amendments Nos. 1 to 8, inclusive, not moved.
Bill reported and received for final consideration.

Question proposed: "That the Bill do now pass."

I wish to update the House on a matter in respect of the Bill. On Committee Stage I undertook to examine the issue of the retrospective application of the Bill. I am signalling that I will be raising amendments in the Seanad. We will be coming back to the Dáil following, I hope, the acceptance of amendments in Seanad Éireann. I am just flagging that issue to the House. I have a note which I can put on the record. In essence it is about that issue. The most significant outstanding issue that remains is the question of retrospective application of the protections in the legislation to persons who report wrongdoing prior to the enactment of the Bill. I wish to provide an update to the House on the progress we are making in this area.

I am committed to applying the enhanced protections provided for in the Bill to such persons to the greatest extent possible within the boundaries of the Constitution. My officials and I are working with the Attorney General in this regard. I am advised that it will be possible to provide protections for persons who have reported prior to enactment but have suffered retaliation after enactment. I have instructed the Attorney General to draft amendments to the Bill to this effect. This will implement the recommendations made by the Joint Committee on Finance, Public Expenditure and Reform, and Taoiseach, in its prelegislative scrutiny report on the draft general scheme of the Bill. I am also advised that it is possible to go further and provide protection to persons who are already within the personal scope of the 2014 Act and have reported and suffered retaliation prior to enactment but have yet to initiate proceedings against their employer at the Workplace Relations Commission or the courts. Again I have asked the Attorney General to draft amendments to the Bill in this regard. Any retrospective application that goes beyond this, that is, where proceedings have been initiated or completed, would run into constitutional difficulties. In particular, Article 15.1.1° of the Constitution provides that the Oireachtas shall not declare acts to be infringements on the law which were not so at the date of their commission. We must accept and respect the limits that are placed on us by Bunreacht na hÉireann. Where a person is in this situation, there is nothing to stop them from making a new protected disclosure in respect of any new or outstanding matters and the full protections of this legislation will apply. Similarly where a person in this situation is subjected to a new act of penalisation after the Bill is enacted, the retrospective provisions when introduced will give them protection. I had hoped to bring these amendments to the House today for consideration. I regret to say that this was not possible.

While drafting is at a very advanced stage, several substantial issues concerning the application of the protections from civil and criminal proceedings, the right to confidentiality and data protection have arisen. The Attorney General has informed me he needs more time to get to the bottom of them. To ensure the provisions are properly and correctly drafted, I have agreed with the Attorney General to defer their introduction until the Bill reaches Committee Stage in the Seanad. I apologise to the House for the disappointment I know this will cause, but I am sure Members will agree the most important thing is that we get the drafting right. The House will, of course, have a chance to consider these proposals, which concern the retrospective application of the Bill, when it returns to the Seanad.

We are at the Stage where a Deputy can speak on the Bill only generally. We have moved beyond the amendments but if Deputy Mairéad Farrell or any other Member wants to contribute at this point, it may be done.

I apologise for being late; I was doing an interview.

I am just pointing out that we are now discussing the question, "That the Bill do now pass."

Is it that I can speak on the amendments but cannot call a vote? I am to speak generally on the Bill, which will include the amendments-----

The Deputy can speak to what is in the Bill.

I will deal with the Deputy's amendments in the Seanad. The Bill will be coming back here.

I thank the Minister. Sometimes this place is funny-----

-----and sometimes you get a text to say-----

The Deputy is still getting the chance to speak but she may do so only briefly at this point. We are now on Fifth Stage.

Yes, but the point is that I cannot call a vote on the amendments.

The Deputy cannot even move them because we have already dealt with them.

That is fine. That has been clarified.

This legislation is an example of Members of the House working really well together. I feel there was a constructive process at each Stage to address an issue that is important to a wide range of people regarding how society functions for them. My colleague Teachta Buckley and I tried to work as constructively as possible with the Government side. Any member of the finance committee would surely attest that we all worked very constructively together during pre-legislative scrutiny and again on Committee Stage.

Our concern, which, to be fair, probably arose for everyone in seeking to transpose the directive, related to how we could improve the functioning of our whistleblowing arrangements for those who have the courage to make a protected disclosure. Hardly a day goes by when we do not hear some horror story about actions revealed by some really courageous person. Being able to reveal them is fundamental. When discussing the Bill on every Stage, we were aware of how whistleblowers are treated in this country. Unfortunately, really damning evidence has emerged of things that have happened. During Committee Stage, we heard about people who felt their lives were destroyed when acting in the public interest. We know those people acted in the public interest; they did not do it for personal gain. They did it to make society better for as many people as possible. They were not seeking financial gain, as we know, or any kind of celebrity status. They really did what they did because they wanted to reveal wrongdoing. Unfortunately, this has often meant financial ruin and the devastation of one's physical and mental health.

I said in the Chamber before that I credit the Minister for the measures in his Bill that will help to improve circumstances for those making protected disclosures. I have acknowledged those areas where the amended Bill is in line with recommendations made by me and others. I am happy to say I believe the legislation is good, or that it definitely has good aspects. I have concerns, however, and that is why I had tabled my amendments. They related, in particular, to the stepped procedure. This could be even seen as a retrograde step, as some experts feel. Transparency International Ireland spells out how it believes the procedure could violate the non-regression clause of the EU directive. There is concern that the new stepped procedure will place another barrier in the way of public-service whistleblowers. The restrictive criteria for going straight to the relevant Minister mean there could be a lowering of the standards by comparison with what is provided for in the existing Act. Since this Bill is so positive, we need to ensure everything we do assists in making arrangements better for people. There is concern that the stepped procedure will weaken them.

In general, the Bill is quite good. We will have another chance to talk about it. The best thing about it is that we have all been happy about it and able to work together. There were amendments ruled out of order. Owing to the nature of the Bill, some of the measures I would have liked to include would have imposed a cost on the Exchequer, so there are issues in that regard. On the whole, however, it is good to see us all working together. I really do feel it is a good Bill in general. Gabhaim buíochas leis an Aire.

Question put and agreed to.