Protected Disclosures in the Public Interest Bill 2012: Discussion (Resumed)

We are in public session to deal with the draft heads of the general scheme of the Protected Disclosures in the Public Interest Bill 2012. I welcome Dr. Elaine Byrne lecturer, department of political science, Trinity College Dublin.

I advise members that briefing documents were circulated by e-mail in advance of today's presentation. The joint committee will first hear some opening remarks by Dr. Byrne, following which we will have a questions and answers session. I remind members, witnesses and those in the Visitors Gallery that all mobile telephones must be switched off.

I advise the witness that by virtue of section 17(2) of the Defamation Act 2009, she is protected by absolute privilege in respect of her evidence to the committee. If she is directed by the committee to cease giving evidence on a particular matter and she continues to do so, she is entitled thereafter only to a qualified privilege in respect of her evidence. The witness is directed that only evidence that is connected with the subject matter of these proceedings is to be given and is asked to respect the parliamentary practice to the effect that, where possible, she should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable. Similarly, members are reminded of the long-standing ruling of the Chair to the effect they should not comment on, criticise or make charges against a person outside the House or an official in such a way as to make him or her identifiable.

I now invite Dr. Byrne to make her presentation.

Dr. Elaine Byrne

My apologies for being late but there was a mix-up in the times allocated.

Given incidents in Irish political culture over the past ten to 20 years and in every section of institutional authority, be it the church, obstetricians, the health sector or the Garda Síochána in the context of the Morris tribunal, there is an obvious need for greater protection of people who wish to come forward. It would be a mistake to assume that there has never been a culture in Ireland of people standing up and questioning matters; rather the culture has been that when people did stand up they were generally punished for doing so. There is now a change in culture in Ireland with the new impetus by this Government to look at whistleblowing and the recent ratification of the United Nations Convention Against Corruption, in particular Article 33 thereof, which deals with the protection of reporting persons and states that "Each State Party shall consider incorporating into its domestic legal system appropriate measures to provide protection against any unjustified treatment of any person who reports in good faith and on reasonable grounds to the competent authorities any facts concerning offences established in accordance with this Convention". There is both domestic and international recognition that protection of whistleblowers is more necessary now than previously.

It is interesting to note that the United Nations Convention Against Corruption refers to "reporting persons" rather than "whistleblowers". In many cultures, including in Ireland, there is a fear around the word "whistleblowing" and a reluctance to acknowledge in legislation what people would in other times have termed as "informing against the political culture". There is a need for a cultural as well as a legal change. Legislation on its own will fail. There is a need for a culture within wider society that acknowledges and rewards whistleblowing and people standing up in greater abundance. It would be important for this committee to address not alone legislative needs in this regard but cultural change which would allow such legislation to work.

There is also a recognition that whistleblowing has tended to be gender specific. For example, the TIME Person of the Year 2002 award was awarded to three individuals, Ms Coleen Rowley who had worked for the FBI for 21 years prior to her testifying to the Senate Judiciary Committee about how that agency had ignored 9/11 warnings about terrorist activity in the US, Ms Sherron Watkins, Enron Vice-President who also testified to a US Senate Committee about the failures of Enron and, Ms Cynthia Cooper, the Vice-President of Finance for WorldCom who alerted that company's board to internal accountancy and bankruptcy failings. It is interesting to note that the TIME Magazine Person of the Year award 2002 was awarded to three women in respect of their whistleblowing activities and similarly, in the context of the Morris Tribunal and Dr. Neary cases in Drogheda, women were centrally involved. The committee might in its deliberations consider what is it about women that facilitates this to happen, which in turn might address how we approach questions around political culture.

I thank Dr. Byrne for her presentation. I will circulate the paper she submitted earlier to the committee.

I thank Dr. Byrne for appearing before us this afternoon. I would like to make a few observations.

Dr. Byrne might find it interesting to hear that at a meeting of the joint committee in private session a couple of weeks ago on this topic, I suggested that we needed to invite in some females to talk to us about this issue. In that regard, I cited the examples of Enron and the incidents in nursing homes in Dublin over the Christmas period. I also pointed out that much of the whistleblowing to date has been by women. Men in an organisation think things should be done a particular way. Perhaps women have more to their lives than being workaholics and they think more broadly about matters. There is definitely a correlation between whistleblowing and gender. Men are more inclined to be part of the buddies group in an organisation. I am pleased that our attention was drawn to that observation because it is a view I have long held.

Dr. Byrne contrasted culture with legislation. Every society has its own traditions and because Ireland was a planted country, the idea of being an informer has been deeply embedded in the Irish psyche over the generations, to a greater extent than in other countries. People who inform on their neighbours or colleagues were often regarded unfavourably even where they were telling the truth. I accept we are not discussing that at present but some countries may have a more open culture in this regard.

Sometimes legislation is required to change the culture. Drink driving was common in Ireland until we faced the threat of losing our licences. Legislation brought about a change in the drink-driving culture. The same applies in respect of speeding, in that safety cameras are bringing about a change in driver behaviour.

Sometimes immunity for whistleblowers is good but it can also be a source of anxiety. Deals were struck in some of the tribunals. In the American crime dramas people are forever getting immunity for turning state's evidence. The guy who agreed to sing was occasionally given immunity from prosecution by the tribunals in return for making statements that implicated him or herself. It is fine in an organisation if a whistleblower sees something wrong but the individual might have previously been part of the culture. One of the reasons men have not been as good at whistle blowing might have been because they were part of the culture and believed the finger would ultimately point at them. How does Dr. Byrne see that playing out if people are afraid to implicate themselves?

The purpose of our meetings is to hear from a variety of people and explore their views in order to enable us to produce a report prior to the legislation being finally drafted. If Dr. Byrne does not have a specific view that is fine but she may be able to say something that can help us.

Dr. Elaine Byrne

Those three points overlap. Research indicates that outsiders tend to be whistleblowers. I outlined in my submission the various individuals who blew the whistle on Irish institutions over the past ten or 20 years. Many of these individuals had lived outside the country for significant periods. I refer in particular to institutional inquiries in the church, in respect of which many of the key whistleblowers were Irish people who lived in London before returning to Ireland. In the case of the beef tribunal, it was an accountant who had lived in Canada. Every scandal involved an individual who had been an outsider in one way or another. Perhaps that reflects the Deputy's comments on group think. The whistleblowers are often women because they were on the outside of the normal structures of decision making throughout much of Irish history.

I accept the point about the other category of whistleblowers, namely, individuals who have an agenda. We saw examples of this in the tribunals and the immunity they granted to certain individuals. The legislation needs to draw a careful distinction between three categories of individuals who whistleblow. The first category comprises those who disclose information in the public interest because of a genuine belief that wrong doing has occurred. The second category comprises individuals whose claims are ultimately proven to be without foundation or cannot be proven. Every organisation, whether the Standards in Public Office Commission or the Ombudsman, has to deal with malicious complaints. The third category comprises those who are genuine in their belief but are not necessarily motivated by the public interest. The first two categories are easily distinguishable and dealt with in terms of demands for immunity. Complications arose in the Morris tribunal because of the third category. Other gardaí became demoralised to some extent because they perceived a disproportionate focus on certain individuals before the tribunal. Certain witnesses were subject to less scrutiny than others because they had availed of immunity. The unequal treatment of individuals meant that when the tribunal's findings were published an underlying sense of unfairness remained. The long-term consequence within the force was a feeling that justice had not been granted to everybody involved. The outcomes, evidence and motives of a whistleblower falling into the third category should be of no significance provided he or she can satisfy the good faith test that he or she honestly believed, on reasonable grounds, that his or her disclosure was true at the time it was made.

This is where a woman speaks up and looks at the three gentlemen in the corner, as I would do if I was in a lecture hall, and asks them to -----

Through the Chair, please. I will deal with those matters.

Dr. Elaine Byrne

It is important to make distinctions on those three grounds. If they are not made clearly in law, there may be long-term consequences in that procedures will be perceived as unfair, as was the case in some of the tribunals.

Can Dr. Byrne comment on the influence of legislation on culture? Is my example valid?

Dr. Elaine Byrne

The Deputy gave the example of drink driving. One could also refer to the example of smoking. In these instances, a clear and demonstrable political will decided the policy. However, recent events suggest that even where ethics legislation is robust, if the political will is lacking or if contrary signals are sent to the public about leaders' attitudes, the law will be undermined.

I welcome Dr. Byrne. The points presented in the paper are interesting and highlight the cultural change and development as well as the legal and mechanistic or algebraic approach to wrongdoing. Many of the cases that are the platform for this legislation have been public-interest cases as distinct from behavioural cases within private institutions. Admittedly, some commercially and cultural unacceptable practices came to light in the tribunal investigating the Larry Goodman beef empire. We have national societies, international societies and the world society. Last weekend saw the coming together of the Bilderberg group, which has its own culture and is opaque. These powerful people do not share their deliberations with the rest of the world. They are powerful people and provide an example of how closed and cultural norms may develop, which may be unhealthy. The term culture has as its first syllable "cult", which often signifies improper and unacceptable behaviour.

In schools and other organisations, we have health and safety handbooks and notices. Perhaps this legislation can introduce the fairness and honesty handbook for conduct in businesses and organisations, whether State, public, semi-State or private. This would create an awareness of what is fair and right. It boils down to what is right and proper in behaviour. Professor Honohan's report on the banking crisis involved visitation to institutions. To take it further to the next stage of the investigation and scrutiny required courage because of the culture, atmosphere and behavioural acceptability of following through. That is a sad reflection on society because it goes without question that people must be brave and courageous in their work with the fire brigade service. Why can professional people not have the same degree of courage and professionalism to scrutinise or discuss something uncomfortable, such as the taking of the inside leg measurement?

Besides having the legislative framework and the algebra of what is right and wrong set out in law, we could have an add-on. It could be like the safety cameras on the road, as distinct from the speed trap camera. The right and honest work culture could be encouraged.

Perhaps Dr. Byrne can hold any responses she has to these points.

I welcome Dr. Byrne to the committee. I would like her thoughts on two matters, one of which concerns the Bill itself. Is she concerned by anything she has seen in the heads of the Bill? Is anything missing from the Bill, which is relevant to the Joint Committee on Finance, Public Expenditure and Reform? The second point refers to the culture of whistleblowing, which Dr. Byrne refers to in her submission. If we get it right, it would provide part of a new set of rules and protections. What other tools, as part of a package of policy responses, can we use to change the culture? I refer to training and public awareness campaigns. Does anything else that works successfully in other jurisdictions need to happen in order to maximise the success of what the Bill is trying to achieve?

I know the Chairman prefers questions to statements. There should be repercussions for those who have been informed by whistleblowers of inappropriate behaviour in an institution or Department.

Deputy Spring can put a question mark at the end of it.

I can do that. Do the heads of this Bill cater for that sufficiently? The whistleblower may feel he has done his job once the information has gone to a higher place. What should be the repercussions for those who do not act upon whistleblowing reports? In her academic experience, has Dr. Byrne examined countries with best practice for whistleblowing? Which countries are the best and what are they doing that Ireland does not do? I understand cultural differences exist between countries.

In Dr. Byrne's opening statement, she referred to the fact that it is not just Departments or financial institutions. Inappropriate behaviour exists in universities and many institutions throughout the country, including legal firms. There is no place in which one can say it does not exist. To focus on politics and finance is inappropriate. Is the legislation holistic enough to cater for everyone?

I invite Dr. Byrne to respond to any of those questions or observations before we take Deputies Dooley and McNamara.

Dr. Elaine Byrne

The cultural question covers some of the observations made already. The Standards In Public Office Commission has had a complaint mechanism for number of years yet, in comparison to other similarly sized jurisdictions, very few people in Ireland complain. The complaints mechanisms exist but by habit or by culture, people do not complain. One of the reasons for that may be that, since the Ethics in Public Office Act was introduced in 1995, Ireland has one of the most robust systems of ethics and accountability in the world. The UK would give its right arm for some of the legislation we have; it has been struggling to implement legislation on political funding over the past year.

Deputy Donnelly referred to what we can do to make people more aware of it. The Standards in Public Office Commission has called for consolidation of the legislation so that we can find a way to show off the legislative architecture in place. Kissinger used the phrase "Who do I call if I want to call Europe?" Who do I call if I have a complaint about corruption or whistleblowing? There are many levels of organisations and bodies and it is often quite complex. If an individual feels strongly about something, the layers of bureaucracy can be quite confusing.

John Devitt in Transparency International Ireland has a similar experience to me. I get between five and ten calls or e-mails per week from people who have queries but do not know where to go. I am sure Deputies have the same experience. Perhaps it should be made more clear through consolidation of the legislation and through a website where people can find out in a clear way how to make a complaint. My criticism of the anti-corruption website, anticorruption.ie, which is the implementation of the recommendations by the Group of States Against Corruption, GRECO, is that it is opaque and does not help the citizen when he or she wants to make a complaint or manoeuvre through the architecture of Ireland’s very good ethics framework. That would be in line with Articles 3 and 8, although I might have the numbers wrong, of the Convention against Corruption under which there is a provision that one must not only implement particular laws but one must also educate the public about them. This brings me back to the point made. Ireland has a three Ps policy when it comes to legislation dealing with ethics, accountability and so forth - one prints it, publishes it and prays to God that it will work. Perhaps there should be greater emphasis on educating people about the legislation in place in the first instance. Last week, for instance, when the information was released on the donation system, it was being said political parties were hiding their donations. They are not because there are legislative limits. There is often very little education about the existing legislative provisions. I ask that the legislation be consolidated and that there be a clear way by which citizens can make complaints about whatever issue they consider they should raise. If we implement whistleblowing legislation, which I consider to be quite robust as it stands, it will be pointless unless people feel comfortable that they can make complaints.

As to what to do with the proposals to make the legislation better, a great failing within the existing conflict of interest provisions within the codes of conduct for public officials lies in the distinction made between them being voluntary and one being compelled to do something. The case of the Dublin Docklands Development Authority, in particular, shows that where there were voluntary provisions within a code of conduct on conflicts of interest, they were simply ignored, according to the report of the Comptroller and Auditor General. There must be a degree of compulsion regarding what one does with a complaint from a whistleblower.

I join my colleagues in welcoming Dr. Byrne. Section 33 refers to appropriate protection for whistleblowers, while head 16 refers to confidentiality and states it must be protected to the greatest extent possible. If whistleblowing goes a step further and results in a civil or criminal prosecution, inevitably the whistleblower might have to give evidence. As I understand it, there are no provisions whereby a judge can make an order in that regard because justice must be carried out in public, people are named and the courts are open to the media. Does Dr. Byrne think appropriate protection would include a provision whereby a judge could make an order to the media that the anonymity of a whistleblower be protected or that he or she not be named in media reports?

The second matter relates more to what Deputy Fleming said than what Dr. Byrne has said to date, that is, what we see in crime dramas in America where somebody co-operates in a police investigation and charges against him or her on other matters are not pressed . I am not aware of any such provision in Ireland. It is relatively rare that it happens other than the code commonly used in prosecutions whereby a judge, on asking if the person was co-operative, will be told he or she was very helpful. There is then a reduced sentence, but there is no other provision in place. Does Dr. Byrne think it would be useful to provide in Irish law that the Director of Public Prosecutions could decide not to prosecute in return for evidence?

Two points have been made.

I acknowledge the first is more within the remit of Dr. Byrne's presentation.

I have a comment to make which might evoke a response from Dr. Byrne. Like others, I welcome her and her contribution. We have covered the whistleblower aspect well, but I am interested in Dr. Byrne's continued reference to the cultural issue and the necessity to address it. Changing the culture in any organisation or society is often suggested as a solution, but few come forward with a method to do it. While our role in protecting the whistleblower is fundamentally important and we must follow that path and ensure we provide for an appropriate culture, often a person becomes a whistleblower for all sorts of reasons. Some do it because they are asked to do something they know is wrong; they were aware of the practice, but until they were implicated they did not consider it necessary to speak out. Some do it because things do not work out for them within the organisation and they decide to inform. However, the means by which somebody becomes a whistleblower does not matter because it is good that they cry "halt" at some point.

Is there a broader question for society? Must we examine how managers are trained? Must we examine the education system? Is there a requirement to have a module in second level education that seeks to instil a culture of ethics in young adults as they progress to later life, or do we continue to feed the notion that greed is good? In terms of personal attainment, sometimes children are pushed at an early age to outdo their competitors and win at whatever price. Is there an element of this in society that continues to evolve and develop in the minds of children as they move into adult life and has it impacted on their capacity to see right from wrong in a business environment? Does the same desire to beat one's competitor in school apply in the corporate world in loosening one's grip on or understanding of what is right or wrong? In terms of cultural change, is there a duty on the State to examine the education system as a way to address this cultural deficiency, as it were?

As I mentioned, we have a copy of Dr. Byrne's very helpful paper which she sent to the committee this morning. With her agreement, we will place it on our website in the normal way. However, Dr. Byrne raises an extremely interesting point towards the end of it and I wish to provide clarification about a particular development with regard to it of which I am aware. I am anxious to mention it because it is of interest, even if, strictly speaking, it is not a whistleblower matter. It concerns the revelations by two RTE journalists in February 1989 prior to the ITV documentary on the controversy that led to the establishment of the beef tribunal. Dr. Byrne mentions that two journalists ran a television story - in fact, it was a radio story - stating an unnamed Irish company had become involved in a meat fraud investigation and that the Government's export credit insurance facility might have been abused by using it to cover non-Irish meat. She goes on to state, correctly, that Mr. Padraig Mannion, then a journalist at the station, and the late Joe Murray, the head of agricultural programmes on television and radio, had been brought before an internal RTE disciplinary hearing and that disciplinary action had been taken against them. I was their trade union representative at the time. I am drawing the attention of the committee to this story because it touches on the issue of culture that Deputies Dooley and Fleming and others have raised. I will tell the committee about some very recent developments in that story which indicate that culture can change. It is perhaps not always necessary for the law to be changed to change it. In this case, happily, the culture has changed.

I have been careful to make the committee aware that I was the journalists' trade union representative at the time and that I knew both of them very well, but that case was a particularly bad episode for RTE, as many would now agree. There were many suspicions at the time about political pressure on RTE regarding the apologies published about the story. RTE is again going through a bad patch, which is another reason it is important to highlight this. Mr. Murray passed away in May 2011. After his death his family, particularly his daughter Isobel Murray, went through his papers, as a loving daughter would do. She considered everything RTE had done to her father, including the disciplinary action taken, as well as a further step not mentioned by Dr. Byrne. We brought the case to the Labour Court and both Mr. Murray and Mr. Mannion gained considerable vindication which essentially reversed the decision of RTE. Ms Murray pursued the issues and asked RTE for an apology for the way her father had been treated. Initially, it was reticent, as is often the case with large organisations about a matter that happened 20 years ago. However, she persisted and a matter of weeks ago obtained an apology from it. It can only be described as an unequivocal and full apology. I am not speaking out of turn because I have spoken to her and have authorisation to say this.

Great credit is due to RTE, particularly its chairman who has come under great pressure in questioning in another committee of the Houses. That is unfair, but it is a separate matter. It is entirely to his credit and that of RTE that there was a sense of justice. There was full vindication in regard to what had been done to two highly professional, exceptional journalists. This is particularly important in the case of Mr. Murray who passed away one year ago. It is to the credit of RTE and Mr. Savage that this was done in an unequivocal way. I hope it is not too much of an indulgence to take the opportunity to highlight this. It shows how the culture of an organisation can change over time and it has changed in the case of RTE.

We can move from confidentiality and sensitivity in the culture of organisations. These are the terms applied to the behaviour or operations of companies and institutions. Matters can be described as commercially sensitive or confidential and this needs intelligent interpretation. One moves very quickly into secrecy and, with power and authority, it becomes sinister. Dr. Byrne might remember Mr. Joe MacAnthony who was never vindicated and had to emigrate. His was the opposite of the stories being talked about, where people living outside were able to look in with the slight protection offered by distance. Mr. MacAnthony could not do so and had to emigrate, which is sad.

There is also the unspoken about pressure on journalists. More recently, Mr. Sam Smyth has had a very uncomfortable year or two, which makes it lonely for the people involved. If every employee received a handbook on best and honest behaviour on starting or leaving a job, he or she would be reminded of the framework, about where to go and how to think about something at the top, middle and lower level.

Dr. Elaine Byrne

I hope I will remember all of the points made.

Deputy McNamara commented on the issue of anonymity and the forbearance required to prosecute the case of an individual who had blown the whistle.

Dr. Elaine Byrne

People excuse too much of what happened in the past because it is part of Irish culture. I would not like to suggest in any way that the emphasis on the issue of culture in my presentation somehow implies legislation should not be implemented; rather they go hand-in-hand. What measures have been taken to celebrate whistleblowers in other areas of Irish institutional life? I accept the point made about individuals, but this is not about politics. The focus has been on politics in recent years, but my submission concerns every sector of society. Individuals who should be commended for their citizenship have been punished for many years. In the case of Mr. Pádraig Mannion, he received an apology, but many individuals have not and are still maligned. One way of changing the culture is finding a way to celebrate the contribution of particular individuals in challenging the culture within an organisation. Examples include Mr. Frank Crummey, Fr. Gerard McGinnity, Ms Sheenagh McMahon, Mr. Eugene McErlean, Mr. Patrick McGuinness, Mr. Pádraig Mannion and Mr. Joe Murray. Through their courage and bravery, many individuals have sought to expose underlying malignant behaviour. Research shows the psychological damage done to individuals in whistleblowing is massive in terms of their personal relationships and long-term employment prospects. One way of challenging the political culture is not just through legislation protecting whistleblowers' employment but is to say the people in question are citizens who have acted with distinction and honour.

Deputy Dooley asked whether we should examine the education system. This point has been raised for a number of years in the context of the introduction of philosophy as a subject for the leaving certificate. As a lecturer of first year students, one's duty is to move them away from rote learning and teach them to think. First year in university is often wasted because of the move from one education system to another. The Minister for Education and Skills is examining new ways to develop the curriculum and the introduction of philosophy as a subject would go some of the way towards this.

Often the media offer the only outlet for many whistleblowers. With robust whistleblowing legislation and internal systems, complemented by an external system when internal mechanisms fail, one would not have to go to the media. That is the worst course of action for an organisation because it is most damaging when the matter becomes public. The position is often better when matters are resolved to the satisfaction of everyone involved, but most whistleblowers believe they have no other avenue open to them other than going to the media. This can lead to expensive tribunals. In that sense, the culture of an organisation will change. People should be trained to receive complaints and, rather than seeing an individual as a repeat complainant, as was the case with Mr. Frank Crummey, complaints should be taken seriously as a way of strengthening an organisation. This involves a change of mindset.

All of the discussions on whether anonymous whistleblowers should be granted immunity damaged the tribunal's investigations because it brought into question the motives of those giving evidence. It was not always clear what level of immunity individuals enjoyed and this undermined their evidence in the public mind because it was believed they had an agenda. It was subsequently shown that individuals had been proved entirely right - one such example being Mr. Tom Gilmartin whose evidence was correct - but at the time their views were not often taken seriously in the media and other places. If there was a clear mechanism for whistleblowers, those difficulties would not-----

Did Dr. Byrne say the media did not take the issue seriously or that Mr. Tom Gilmartin's assertions were not taken seriously?

Dr. Elaine Byrne

I think Mr. Tom Gilmartin was not taken seriously.

Dr. Elaine Byrne

By people in general.

I thank Dr. Byrne for appearing before the joint committee, her paper and willingness to engage with members. Her contribution is extremely useful in our deliberations. We will be preparing a report on this issue in due course.

The joint committee adjourned at 5.15 p.m. until 2 p.m. on Tuesday, 12 June 2012.