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Dáil Éireann debate -
Wednesday, 13 Jul 2022

Vol. 1025 No. 4

Protected Disclosures (Amendment) Bill 2022: From the Seanad

The Dáil went into Committee to consider amendments from the Seanad.

Seanad amendments Nos. 1 to 7, inclusive, 12 to 15, inclusive, 26 to 29, inclusive, 32, 34 and 35 are related and will be discussed together.

Seanad amendment No. 1:
Section 6: In page 11, between lines 35 and 36, to insert the following:
“(a) in subsection (1), by the substitution of “subsection (6)” for “subsections (6) and (7A)”,”.

Amendment No. 1 is a technical amendment to remove a reference to subsection (7A) of section 5 of the principal Act. That subsection is to be repealed by section 3 of the Bill.

Amendments Nos. 2, 7 and 12 are a series of minor amendments to provide that the rules applying to employers as regards anonymous reports should be without prejudice to their obligations to give further feedback if requested to do so by the reporting person in accordance with section 6A(1)(f). The procedures of prescribed persons shall set out the type and content of any further feedback requested by the reporting person. The procedures of the protected disclosures commissioner shall set out the type and content of any further feedback requested by the reporting person. These are consequential amendments following the addition of provisions for further feedback inserted into the Bill during Committee Stage in this House.

Amendments Nos. 3 to 6, inclusive, 13 to 15, inclusive, 28 and 29 are a series of technical amendments to replace all provisions in the Bill containing the phrase "coming into operation" with the term "commencement". This is to ensure that the terminology used in the Bill is in line with the most up-to-date drafting conventions used by the Office of the Parliamentary Counsel. There is no change to the effect of any of these provisions. The Interpretation Act 2005 provides that "commencement", when used in respect of an enactment, means the time at which the enactment comes into operation.

Amendments Nos. 26, 27 and 32 are technical amendments to section 25 and 31 to tidy up the numbering of the sections. Section 25 adds a new paragraph, paragraph 3 in the current draft of the Bill, to the Schedule. I am informed by the Office of the Parliamentary Counsel that the correct drafting convention that should have been used here is to number the inserted paragraph as 2A. This is what is provided for in this amendment. The amendment to section 31 tidies up the numbering of the principal Act.

Amendments Nos. 34 and 35 are technical amendments to delete unnecessary signpost references in the draft Bill. The purpose of the amendments is to delete the references to section 15 and section 3 in the Schedules, references which are neither correct in terms of where they appear nor necessary. They are intended as signposts only to the sections to which they relate, and nothing turns on them from a legal perspective.

I will read briefly from an email I received from a whisteblower.

We are disappointed to report that the Protected Disclosure Amendment Bill 2022, as currently proposed by Minister McGrath ..., is deficient and defunct.

...

Legal Advice recently informed that this framework is inappropriate and not suitable for the intended purpose.

...

The Protected Disclosures Amendment Bill fails to deliver an effective remedy as provided under Article 13 of the European Convention on Human Rights. Unfortunately, Ireland has a recognised history in this behaviour.

...

The Protected Disclosure Amendment Bill 2022 is not fit for purpose.

...

It will not supplant the Framework Document for the investigation of Protected Disclosures and Penalisation, despite legal opinion that this framework is inappropriate and not fit for purpose.

...

It will not hold those who penalise to account.

It will discriminate [against] those who have previously raised concerns, which is a breach of our constitutional rights.

I would like the Minister to comment on that. These people were very disappointed to see this legislation rushed through in this manner. It is too important. It has become the hallmark of this Government to take legislation at the last minute, change it and push it through in this very unsatisfactory manner.

I do not wish to cut across the timelined focus we have on particular amendments, but it is quite scandalous that we are trying to do this in 30 minutes. It really is not acceptable. As the House will be aware, I brought in the original Protected Disclosures Act in 2014. I wish to ask a particular question, since, a Leas-Cheann Comhairle, you have allowed the previous intervention, and that is-----

I was about to intervene to interpret the intervention-----

We are on amendments Nos. 1 to 7, inclusive, with a number of other amendments, so-----

Yes. I wish to ask a particular question of the Minister about section 13 of the original Act I introduced in 2014, which protects whistleblowers against unlawful detriment by virtue or consequential to making a protected disclosure. The legal advice I have is that the consequence of the amendments the Minister has now tabled is a reversal of the burden of proof such that the employer would not bear the burden of showing that there is no causal connection between the making of a protected disclosure and the suffering of a detriment. The Minister, during the debate on Second Stage, assured the House that this would not be the case, but my legal advice is that it is the actual result of the amendments before us. I would like the Minister to be very clear with the House that it is not his intention to reverse the particular focus of section 13 of the existing Act and to reverse the burden of proof in the way I have described.

I appreciate that the time is limited and that colleagues may want to get on to issues that are covered by later amendments. I am happy to deal with those if they so wish, but that is where the discussion has gone in the past few minutes, which is fine. There are, I think, a few net issues that colleagues would like to tease out and I am happy to do it that way, but I am at your-----

We will not reach the section in 30 minutes-----

I appreciate that.

-----so this is a joke of a-----

Two key issues have been raised.

That is the key issue.

I am happy to deal with them. It is important we deal with them.

One is on the question of the retrospective application of the Bill. The other is on the insertion of subsection 2(b) into section 13 of the Act. That is not an amendment before us but it is important to the overall debate, as I have acknowledged.
At the discretion of the Leas-Cheann Comhairle, let me deal with the issue of the retrospective application of this Bill. The political direction I gave to those involved in drafting the Bill and the Office of the Attorney General was that, to the greatest extent possible within legal parameters, I wanted the additional protections provided for in the Bill to be retrospective. That is the clear political direction I gave as Minister on the issue. I assured this House and the Seanad that I would achieve that, and that is what I have done.
Let me put on the record some important points on this matter. I am satisfied, having listened to the legal advice I have received, that what I requested has been achieved. Within the constitutional parameters in which we must all operate, we have secured the retrospective application of this Bill to the greatest extent possible. As I have said in previous statements to both Houses, the scope of the Oireachtas to make laws retrospectively is limited by the Constitution. In this regard, I have quoted Article 15.5.1°, which I do not need to do again. This limits how far laws can be retrospectively applied. The reasons for this provision in the Constitution are obvious. Retroactive laws pose a challenge to the fundamental principles of equality, certainty and predictability underlying the rule of law. Individuals should be able to rely on laws in the expectation that the State will not afterwards interfere with individuals’ rights.
Paragraphs 2 and 3 of Schedule 7 apply to workers already within the scope of the 2014 Act who reported before enactment but suffered retaliation after enactment. Given that these workers are already protected by the 2014 Act, the additional benefits these provisions confer are the reversal of the burden of proof during proceedings of the Workplace Relations Commission and the courts and access to interim relief at the Circuit Court against penalisation.
Paragraphs 4 and 5 apply to persons added to the scope of the legislation by this Bill. These include shareholders, volunteers and board members who reported before enactment but who, again, suffered retaliation after enactment. Also included are job applicants. Since these workers had no entitlement to protection prior to this amendment being made, the cohort will receive the greatest benefit from these provisions, namely protection from penalisation at the Workplace Relations Commission, including the reversal of the burden of proof, the right to sue for damages in court, again including the reversal of the burden of proof during proceedings, and access to interim relief at the Circuit Court for dismissal and other forms of penalisation.
Paragraphs 6 and 7 apply to workers already within the scope of the 2014 Act who reported and suffered retaliation before enactment, provided the workers have not initiated proceedings in the Workplace Relations Commission or the courts at the time of enactment. Given that these workers are already protected by the 2014 Act, the additional benefit this measure confers on them is that they will be entitled to the reversal of the burden of proof during proceedings. I acknowledge how important the reversal of that burden is, in addition to the extension of that protection to so many workers and other persons who now qualify under this Bill.
Amendments submitted by Deputy Mairéad Farrell, to which I am sure she will speak in a moment, seek to extend the provisions of paragraphs 6 and 7 to persons who have already initiated proceedings under the 2014 Act. That is the kernel of the issue on which much of the correspondence and parliamentary questions in recent days have focused. The primary effect of the amendments would be to apply the reversal of the burden of proof to cases that are already before the Workplace Relations Commission or courts. I cannot accept these amendments. To provide for the burden of proof to shift during the currency of pending legal proceedings would involve substantial interference with the administration of justice and would be liable to be unfair to litigants and generate significant uncertainty in the conduct of litigation. This would be particularly true in relation to part-heard cases or cases where a judicial decision has been already given.
Paragraphs 6(b) and 7(b) of Schedule 7 are necessary to avoid interference with the conduct of pending litigation, with potential unfairness and uncertainty for litigants, which a retrospective application of the shifting of the burden of proof to pending proceedings would involve. It is standard for such significant and substantive interferences with the conduct of proceedings to be applied, as here, only to proceedings initiated after the commencement of the provision concerned. It is not usual to apply new rules to already-existing proceedings. To accept these amendments would set a disturbing precedent. The Oireachtas would, in effect, be interfering in cases that are currently before the courts. To do such a thing would, I am advised, clearly be repugnant to the Constitution, the underlying right to fair procedures in litigation and the rule of law.
I gave the commitment to go as far as I possibly could in terms of the retrospective application of all the additional protections in this Bill. That was my key objective in introducing this Bill; however, as I have said, I am advised by the Attorney General that we can go no further in providing retrospective protection than is already set out in the amendments.
Let me touch briefly on the specific issue that Deputy Howlin has raised, because it has been raised several times in parliamentary questions in the past few days. There is a misinterpretation of what the relevant section provides. Section 13 of the Protected Disclosures Act provides that if a person causes detriment to another person because the other person or third person made a protected disclosure, the person to whom the detriment is caused has a right of action in tort against the person by whom the detriment is caused. Section 22 of this Bill provides for the insertion of a new subsection (2B) into section 13 of the 2014 Act, to which Deputy Howlin referred. It provides:
In any proceedings under this section in respect of alleged detriment caused to a person, the detriment so caused shall be deemed, for the purposes of this section, to have been caused as a result of the person or another person having made a protected disclosure, unless the person whom it is alleged caused the detriment proves that the act or omission concerned was based on duly justified grounds.
In other words, the effect of subsection (2) is to reverse the burden of proof in any tort proceedings taken under section 13 so that the court must assume that the alleged detriment occurred because of a protected disclosure unless the defendant can prove otherwise. In other words, the reversal of the burden of proof is in favour of the whistleblower as a result of the insertion of the provision. I will leave it at that because I realise colleagues want to contribute.

We have been down quite a long road on this. It has been a very positive example of how the Government can engage with the Opposition and the relevant committee. The Minister has taken on board many of the suggestions put forward by me, Teachta Buckley and others. That has been really positive. I am aware this is our last opportunity to speak on this. I thank the whistleblowers who have engaged with us over the course of dealing with this Bill. They spoke out for the common good. We have heard from the witnesses about the huge strain placed on them privately and professionally as a result.

Throughout our discussions, we have grappled with the issue of retrospectivity, on which the Minister has just touched. Throughout his time dealing with the issue of retrospectivity, he has mentioned that he was seeking advice on it from the Attorney General. I was wondering whether it is possible to see this advice. Can it be shared with us? As the Minister knows, many of the whistleblowers we have heard from feel completely and utterly let down by the way they have been treated. I included my amendments because I do not believe it is right to exclude a section of whistleblowers. The section I am referring to includes those whom the Minister mentioned, namely those currently engaged in live proceedings. I fear the message they will receive from this Bill will be that they have been left behind again. They have been failed so many times and we must not let that happen again.

The reality is that, throughout the committee hearings, we heard from whistleblowers about how they have been penalised. We should not exclude those engaged in live proceedings from this greater protection whereby any penalisation is presumed to have occurred as a result of the whistleblowing. The issue of the burden of proof is undoubtedly a fundamental aspect of the enhancement of provisions in this Bill and there should be an extension to the cohort in question.

I would like to ask the Minister a number of questions on this. I understood what he was saying but have some questions I hope he can answer. We have spoken about the issue of retrospectivity at length. If there can be retrospective application for some, why can there not be for others? I understand this issue falls under Article 15.5.1° of the Constitution, as the Minister mentioned. It states the Oireachtas cannot declare that certain actions contravened laws that were not in place at the time of those actions.

When the Minister introduced the amendments in the Seanad he said that constitutionally they could not include people who are before the Workplace Relations Commission or the courts. Will he explain why this is the case? I do not understand how it would be the case with Article 15.5.1°.

I will give an example of where it was possible to make a retrospective ruling for a live proceeding. It was through the European Court of Justice in the Max-Planck-Gesellschaft case, C-684/16. The case was brought by the German court. After the termination of employment a company refused to pay the employee for annual leave not taken. The German courts were unsure whether the EU law precludes national legislation providing for the loss of paid annual leave not taken. The European Court of Justice ruled the employer must prove it gave the employee the opportunity to take the leave in the time allocated and particularly to have provided adequate information on doing so. The point is that the burden of proof lay with the employer and in this case it was granted in a live proceeding. Again, I question why this cannot be done in this case. Would the denial of this right lead to cases similar to the Max-Planck-Gesellschaft case? I was also struck when reading about the case that the German courts were unsure as to whether EU law precludes national legislation providing for this. Would this mean EU law has primacy over our domestic law and, therefore, the directive would have primacy here?

Another issue I know the Minister is acutely aware of is that of reporting directly to the Minister. I want to mention this as the Minister spoke on it. It is regression not to have direct reporting to the Minister.

I am conscious I did not deal with the Bill as my colleague Deputy Nash did. He is unavailable today because of Covid. I am familiar with the Bill. I will not go through all of the legal advice I have but I will mention some of it. There is a clear distinction between the retroactive creation of a legal right and the retroactive outlawing of a breach of such a right. The latter would offend Article 15.5.1° of the Constitution but the former would not. I can quote legal cases where this has been determined in the courts. In other words, we can retrospectively confer rights but we cannot retrospectively withdraw those that have already been adduced in the courts. I am very conscious the Minister has embraced this with a very open mind. He has engaged with the committee. He has done a fine job. That is why it is unfortunate we have only ten or 11 minutes to resolve these matters. There are no time constraints on us in respect of this Bill, which is not time-sensitive. Will the Minister give additional time for these matters to be worked through to the point of satisfaction?

I was not involved in the Bill on Committee Stage either. I am not a member of the relevant committee. It is very unfortunate that what is otherwise a very good and progressive Bill is being marred by the amendment the Minister has tabled. I fully support the amendment to the amendment tabled by Deputy Farrell.

This is about retrospective application. There are many examples of schemes that are introduced where there is cut-off point whereby people are in the system and have started proceedings or a case or they have not. That is fair enough. The door has to close at a certain point. The fact the Minister will not allow people who are already before the Workplace Relations Commission or the courts to be included in the provisions is fundamentally unjust. What is the Minister saying to these people? He is telling them to cease their proceedings and go back to square one. The implications of that are enormous, timewise and for costs. Without doubt, these people are being denied the justice to which they should be entitled. We have to take their concerns and rights into consideration and I do not believe the Minister is doing so. I urge him to accept the amendments tabled by Deputy Farrell to protect, and ensure the rights of, those people already in the system. It is a reasonable request. The Bill would be stronger for it.

There is no doubt that the Oireachtas Joint Committee on Finance, Public Expenditure and Reform, and Taoiseach, which dealt with the Bill, did a very detailed analysis of it and that most of the recommendations made in its report were taken on board by the Minister. During the course of the hearings, the sincerity of the Minister was clear with regard to stating he would seek legal advice on applying a retrospective position. I have not seen the legal advice. I do not know whether it was published. A debate on this that will conclude within five minutes is simply unfair not only to the House but to the whistleblowers caught in the process of a court case. John Barrett, who has been mentioned in the House numerous times, is one such individual caught in it.

The Bill flies in the face of the directive we are transposing into Irish law. We need to look at it. As legislators we need to tease out the issues of concern to us relative to this aspect of the Bill. Otherwise the Minister has done a very fine job and so have all of those who have had an input. Reflecting on what the whistleblowers told us during the course of the hearings, I am very concerned about the rush to conclude this. I am very concerned about the difficulties that will now be faced by those before the courts. It is simply unfair and unjust. It is bad to rush this legislation given what the Minister has done so far on reform.

I appreciate the comments of colleagues from throughout the House. I acknowledge there has been very good collaboration from all sides. The committee chaired by Deputy McGuinness did excellent work during pre-legislative scrutiny. It identified this issue. It is my view that we have gone beyond the recommendation in the pre-legislative scrutiny report on the retrospective application of the additional protections in the Bill. What we are doing is not in breach of the directive. In fact, the directive is silent on the question of the retrospective application of the protections. It does not make any such recommendation.

As I have said, my clear directive at political level to those involved in drafting the Bill and those providing legal advice was that I wanted to maximise the retrospective application of the Bill to the greatest extent possible. I set out in my initial comments on this set of amendments the various categories of people who will benefit from retrospective application of the Bill and from the additional protections that have been provided. In essence, what I am being asked to do is ignore the advice of the Attorney General and accept the advice of other legal persons. I do not call into question their competence but in the position I have the privilege of holding, it is the advice of the Attorney General that is pre-eminent on legal issues. Colleagues from across the House are aware of this.

With regard to what the advice says, I laid out much of it and its language in the remarks I made earlier. In essence, it is that providing for the burden of proof to shift during pending legal proceedings would involve a substantial interference in the administration of justice. It would be liable to be unfair to litigants and to generate significant uncertainty in the conduct of litigation. This would clearly be an infringement of the right to fair procedures and would undoubtedly not stand up in the courts. The advice I have is that what we are doing is at the limits of what is permissible under Bunreacht na hÉireann and I cannot go beyond it, irrespective of what personal wish I may have as Minister. The advice is the advice. It is not advice that is on the one hand and on the other hand; it is categoric and I cannot go beyond it.

Seanad amendment agreed to.
Seanad amendment No. 2:
Section 8: In page 15, line 3, after "6A(1)(e)” to insert "and (f)”.
Seanad amendment agreed to.
Seanad amendment No. 3:
Section 8: In page 15, line 9, to delete "coming into operation” and substitute "commencement”.
Seanad amendment agreed to.
Seanad amendment No. 4:
Section 8: In page 15, line 13, to delete "coming into operation” and substitute "commencement".
Seanad amendment agreed to.
Seanad amendment No. 5:
Section 8: In page 15, lines 16 and 17, to delete "coming into operation” and substitute "commencement".
Seanad amendment agreed to.
Seanad amendment No. 6:
Section 11: In page 19, line 3, to delete "coming into operation” and substitute "commencement”.
Seanad amendment agreed to.
Seanad amendment No. 7:
Section 11: In page 22, line 14, after “feedback” to insert “(including further feedback)”.
Seanad amendment agreed to.

Amendments Nos. 8 to 10, inclusive, are related and may be discussed together.

Seanad amendment No. 8:
Section 12: In page 23, line 31, after “body,” to insert “and”.

These amendments provide for the deletion of section 8(2)(b) of the principal Act, as amended. Section 8(2)(b) provides that a worker employed by a public body can only report to Minister if the worker reasonably believes the information disclosed in the report and any allegations contained in it are true. The intent behind the amendments the Bill is making to section 8 of the Act is to provide that a public sector worker should report, in the first instance, either to his or her employer or to a prescribed person, before reporting to a relevant Minister. If, having made such a report to his or her employer or a prescribed person, the worker reasonably believes that no action or insufficient action has been taken, there should be no further impediment to him or her reporting to a Minister.

Section 8(2)(b), as provided for in the Bill requires, however, that the worker must also reasonably believe the information reported is entirely true. This imposes an additional test for reporting a Minister on top of the criteria the worker is required to fulfil to report to his or her employer or to a prescribed person. This is not in line with the policy intent and these amendments provide for its deletion in that regard. We do not wish to put any additional barrier in place to prevent a direct report to a Minister.

Ministers will refer any protected disclosures, on receipt, to the office of the protected closures commissioner when it is set up. The office will determine who is the appropriate person or body to assess the protected disclosure. It may well be the case that it comes back to the Minister. If the Minister is the appropriate person to consider the protected the disclosure, he or she will assess and deal with the protected disclosure.

How quickly does the Minister expect the office to be set up? Where does that leave people in the meantime?

We will lay out a detailed implementation plan on the provisions of what will become new legislation and, certainly, later this year, the intention is to have that office up and running. We are engaging with the Ombudsman in that regard. While there may well be disagreements on specific aspects of the Bill, in the round, this represents very significant progress. I again acknowledge the work of Deputy Howlin in bringing forward the initial legislation. It was groundbreaking legislation for its time and it is timely that it be updated and that we learn from the experience of recent years.

We are bringing volunteers, unpaid trainees, board members, shareholders and job applicants into the reach of the protected disclosures regime. There will be an obligation on all private sector organisations with 50 or more employees to establish formal channels and procedures. Employers and prescribed persons will be subject to obligations to follow up diligently on information contained in protected disclosures and to provide feedback. For the first time, that will be an obligation. We will have a new office of the protected disclosures commissioner. We have laid out new offences and we have additional protections with regard to the reversal of the burden of proof, the extension of interim relief measures and so on that we have extended to the greatest extent possible to all those who qualify under the legislation.

The time permitted for this debate having expired, I am required to put the following question in accordance with an order of the Dáil of 12 July: "That the amendments set down to Seanad amendment No. 36 are hereby negatived and the Seanad amendments not disposed of are hereby agreed to in committee, and agreement to the amendments is accordingly reported to the House."

Question put and agreed to.

A message will be sent to the Seanad acquainting it accordingly.

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