Before I invite my colleagues to speak, I have a few questions.
The first relates to the points Mr. Butler made and which were echoed by Ms Newton. Members of the committee will understand this important question of reputation and integrity of corporate decision making. I was a little surprised that they did not state - I expect that this is their view but seek merely to balance the reasonable points they make about reputation - it is vital to protect reputation and the reputation of this country as a place to do business and it is for that precise reason that we need whistleblowing legislation in order to protect the integrity of good businesses and good public services. It seems the experience in this country has been that the good reputation that most businesses and public bodies have deservedly has been undermined by some serious wrongdoing and in order to protect the integrity of the overall system, we need whistleblowing legislation. It goes to enhance reputation as much as there is any risk of it undermining reputation. That would be an important point that, perhaps, ought to be brought out.
Mr. Butler spoke of the possible down side. In fairness, he did not state there is a downside; he stated that he is in favour of the legislation but that he would be worried that there could be a down side or risk. We are interested in hearing how that possible downside can be identified and dealt with in the Bill. We, and most who come before us, including IBEC, start from the proposition that this is important and necessary legislation. If it needs to be improved, let us see how it can be improved. That would be the approach that most would take.
On the specifics, I suppose we can only deal with Ms Newton's point about the relationship with other legislation and how it would co-exist with other legislation if she points to a possible conflict. There is always the point about the proliferation of regulation, protective legislation, etc. Is that merely a general point or are there specific areas at which we need to look where there is a possible conflict or an undue level of regulation that could be solved, in other words, is Ms Newton saying, why not amend existing legislation instead of bringing in this legislation?
On the question of stepped protection and the requirement, perhaps, with exceptional circumstances, to go to the employer first, the committee has discussed this with some of the other witnesses and there are definitely concerns on both sides of that argument. With the relatively small employer, for example, it would almost be absurd to suggest that an employee would go to his or her employer because maybe the employer is the only other person in the building or maybe it is the employer who is suspected of being involved in the wrongdoing. It seems there is a genuine problem for some employees in saying that they would be required to go to their employer first.
IBEC sort of states that it should be a requirement to go the employer first but there would be some exceptions. These exceptions are not particularly exciting. One would be where the employer has refused or omitted to deal with the matter within an agreed timescale and the other is where the worker is not satisfied that the matter has been rectified appropriately. The worry would be that this issue could be bogged down at the level of the complaint to the employer and there might never be a realistic opportunity for the employee because he or she may be ground down in whatever way. I am only trying to give the argument from the other perspective, that employees would end up being, or worry that they would be, ground down and the wrongdoing would never be exposed, which is the purpose.
The question of good faith and motive is one on which we held a debate here a couple of weeks ago. We understand that, in the reference to the making of the report in good faith, "good faith" refers to the belief in the truthfulness and validity of what is contained in the report, not to their motive. IBEC is saying that we should introduce the notion of the motive. That is quite controversial because an allegation can be true although made for a bad motive, and we take this on board. Somebody can do it for bad reasons but the allegation can, in fact, be true or otherwise necessary to bring forward. One needs to consider that. The legislation contemplates good faith going to the belief in the validity of the allegation rather than going to the motive and I think that is why IBEC states motive should be brought in to it. IBEC thinks it should be changed, and would agree that is what it means at present but that motive should be brought in.
Ms Newton used the word "grievance" at one stage. I appreciate this is like employment legislation but it is not about grievances. It can be characterised as a grievance, and person could have a grievance as well, but this is not a new set of legislation for persons to bring forward grievances. This is to get material that should be exposed out into either a regulator or, in certain circumstances, the media, and it would seem to some that it should not be to do with from where that individual worker comes in making the allegation. The objective is to get the bad stuff out and get it dealt with.
On the trial-by-media point under head 8, would Ms Newton accept that head 8 is replete with conditions. One must jump through a good many hoops in order to be protected for going to the media. That should be emphasised. There are the initial points, then there are three sets of conditions, etc. It is, rightly, a much more detailed head than any of the others. The protection that should be given to somebody for going to the media ought not to be as automatic, as Mr. Butler might say, as it would be, for example, for going to the employer, and it seems that it is not. It seems that there are a few boxes that must be ticked there.
On the question of including an apprehension that something was likely to happen, it seems the only difficulty about dropping that is that if there is an apprehension or concern that there is an imminent danger of some wrongdoing about to occur, it would be difficult to see a justification for excluding that completely, in other words, the wrongdoing would have to be wrongdoing that had already happened. A person could state that something very serious is about to happen, that somebody is about to do something which is seriously wrong and if he or she is not stopped within hours or days, the wrongdoing would go ahead. I would be uncomfortable about excluding completely the "likely" in that regard.
On where Ms Newton suggests that the subhead should be extended to include "or ought to have known", and then that the worker, essentially, really should be expected to conduct a certain level of inquiry into whether or not something is true, I might have a slight concern, depending on what she states in response, that we are requiring the worker to jump through a good many investigative hoops and to engage in an inquiry. I understand what Ms Newton means. If it is good faith to believe in truth, it is certainly true that it must be based on something, but to conduct inquiries into it before one makes the allegation is something that concerns me a little.
The public interest point is well taken but this all should be in the public interest. Corporate responsibility is in the public interest, even if it is a very small company. A business should be run properly, not improperly. Broadly speaking, that seems in the public interest. I do not know about the idea of the rights commissioners being asked to decide whether it is in the public interest. It is not a bad point. We do not want a crank's charter but sometimes cranks are useful. Look at what has happened over the past ten or 12 years. If there were a few cranks here or there, some of the wrongdoing might have been revealed. I am not advocating for a crank's charter but I think Ms Newton is referring the officious citizen who is inclined to complain compulsively. We should not discount the possibility that they can also perform a useful public function. I am merely trying to offer a balanced perspective.
Yesterday we were told the heads of Bill do not go far enough in protecting confidentiality. It was claimed that it would have a chilling effect because people will not come forward unless they are sure their confidentiality will be protected and an amendment to strengthen protections was strongly advocated. Is there not a danger that people will not come forward without at least some protection of confidentiality? They will not want to come forward if their identities are going to be exposed and they will face serious consequences for their careers.
I do not quite understand Ms Newton's final point about contractual confidentiality. There is a common law duty of confidence between an employer and employee. Is Ms Newton arguing that if a confidentiality clause is included in a contract of employment or other contractual provision, nobody should be allowed to avail of the protections set out in this Bill? I would not agree with that assertion.