General Scheme of the Protected Disclosures (Amendment) Bill 2021: Discussion

I welcome our guests. We are joined by: Mr. Seamus Clarke SC, vice chairman, and Mr. Raphael O'Leary BL, junior counsel, from the Bar of Ireland; Mr. Ray Merrick, executive director, and Mr. Ronan Kennedy, policy officer, from the Irish Council for Civil Liberties; and Mr. John Farrelly, chief executive, Ms Orla Keane, general counsel, and Ms Joanna Macklin, senior panel manager, from the Mental Health Commission.

I wish to advise witnesses who are physically present or who give evidence from within the parliamentary precincts that they are protected, pursuant to both the Constitution and statute, by absolute privilege. Witnesses attending remotely from outside the parliamentary campus have been made aware that full privilege may not apply. Witnesses are reminded of the long-standing parliamentary practice that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable, or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. Therefore, if witnesses' statements are potentially defamatory to an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative that they comply with all such directions.

Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the House, or any official by name or in such a way as to make him or her identifiable. I remind members who are attending remotely of the constitutional requirements that members must be physically present within the confines of the place in which parliament has chosen to sit, namely, Leinster House, in order to participate in public meetings. I invite Mr. Clarke to make his opening statement.

Mr. Séamus Clarke

The Bar of Ireland welcomes the opportunity to come before the committee as part of its ongoing examination and analysis of the 2021 general scheme of the Bill in question and seeking to amend what has already been an important and impactful protected discourse regime. Effective transposition of any EU directive requires a thorough understanding of the local and national context and that is so with respect to EU Directive 2019/1937, which is being transposed by way of this amendment Bill. As part of its first session, the committee heard testimonies and contributions from Mr. John Wilson, Mr. Noel Grace and Mr. Philip Brennan of Raiseaconcern. All those contributions pointed to the need and value of a protected disclosure regime in the public interest and in the interests of those directly involved.

As a representative body of lawyers, the Bar of Ireland is not as concerned with the rationale and policy behind certain legal protections and will leave that space for other capable invitees, some of whom are with the committee today. Instead, our submission has focused on ways in which the proposed 2021 Bill could be improved from a legal drafting and utility point of view. Clear and effective legislation makes our jobs as lawyers much easier when advising clients. It has the potential to prevent or reduce disputes, remove uncertainty and empower individuals. Therefore, the purpose of our contribution is to highlight particular areas which we believe could be improved as well as some areas which we fully support. These are set out more comprehensively in our written submission but our key observations can be summarised as follows. The first observation relates to the definition of a worker. The council is of the view that the proposed Bill could be improved by a more comprehensive and inclusive definition for the persons entitled to whistle-blowing protection. Therefore, the council recommends that the term "worker" be replaced by "reporting/disclosing person" and to enumerate the term a "reporting/disclosing person", as is the model of the Protected Disclosures Act and the proposed Bill at present, with the various categories of persons who ought to be caught by the protections. The reason we say this is that jurisprudence and other statutory definitions of "worker" general relate to relationships narrower than what is envisaged in the proposed Bill. The expansion of the understanding of "worker" to include a shareholder or applicant for a role is of some concern on the basis that to stretch the meaning of "worker" beyond its traditionally understood meaning could result in persons who would otherwise be protected not believing they classify as a worker and therefore not making a protected disclosure.

I will speak now about the treatment of interpersonal grievances. As the committee will be aware, the EU directive and purpose of the amendment relates to breaches of EU law, and the wide scope that entails. Head 5 of the Bill sets out an exclusionary definition taking inspiration from recital 22 of the directive on the issue of interpersonal grievance, as follows:

A matter is not a relevant wrongdoing if it is a matter concerning interpersonal grievances exclusively affecting the reporting person, namely grievances about interpersonal conflicts between the reporting person and another worker and the matter can be channelled to other procedures designed to address such matters.

The council, in principle, welcomes the addition of this exclusion and expects that it will provide much needed clarity to certain disputes. The use of the word "exclusively" is important as it narrows the scope of the exclusion. Therefore, for example, an employee could be protected if they made a disclosure concerning their boss who they claimed was bullying them if they also believed and disclosed that the boss was bullying other employees. This type of disclosure is not captured by the exclusion and would arguably be a protected disclosure depending on the particular circumstances.

The council recommends that efforts be made to clearly define the term "interpersonal grievance". Failure to provide such a definition could lead to differing views amongst employers and employees as to what qualifies as interpersonal. The legislation should provide for an objective definition with less room for individual interpretation.

The council advises the repeal of section 13(2) of the Protected Disclosures Act 2014, which creates a mandatory exclusion on persons bringing a claim to the Workplace Relations Commission for redress for having been dismissed or penalised at work and a tort claim in the courts based on detriment suffered by them arising out of their making of a protected disclosure. This section goes too far in preventing a form of double recovery by a whistleblower. It is possible to envisage a situation in which a person has been dismissed for whistleblowing, but against whom a detriment is also caused. It is more in keeping with the purposes of the directive for the availability of remedies to be maximised. We recommend that this provision be repealed, particularly as the courts are well equipped to address legal issues concerning the crossover of reliefs with the Workplace Relations Commission.

Head 9, subsection (11) of the proposed Bill seeks to amend section 6 of the Protected Disclosures Act 2014, which provides for a public disclosure by a worker to their employer, and states: "The reporting person shall cooperate, where required, with any investigation or any other follow up procedure initiated in accordance with the proposed section 6(9)(d)." This subsection is vague as to what type of co-operation is envisaged. Further, the consequences for such a failure are also unclear. While the Council approves of the general approach in heads 9 and 10 of the general scheme, it is concerned about the ambiguity within the proposed sections, as I have set out, which could benefit from greater clarity as the proposed Bill is progressed.

The Council supports the creation of the protected disclosures office. This is in the interests of an efficient and whistleblower-friendly regime, identifiable by the public through appropriate awareness raising and adequately resourced. The council views this as especially worthy development in light of the increased complexity and range of regulatory matters over which protected disclosures can now be made under this new regime. As the directive aims to cover breaches of European law in a number of complex areas, including public procurement, animal and food safety and many others, the council expects the protected disclosures office will act as a safe and effective clearing house, which would simplify the process for potential whistleblowers.

Finally, the council recommends the provision of legal aid to certain persons making or contemplating making a protected disclosure given the complexity and sensitivity of this area. The council views the provision of legal aid and psychological support as consistent with the ethos of the directive, which seeks to empower would-be reporting persons into making a fully informed decision as to whether they will make a report or protected disclosure and for them to be supported thereafter. We look forward to engaging with the committee and our colleagues here on this important discussion.

Mr. Liam Herrick

The Irish Council for Civil Liberties, ICCL, welcomes the opportunity to appear before the committee to discuss this important draft legislation. I am joined by my colleague, Ronan Kennedy, and we thank the committee members for their invitation. The ICCL has previously made written submissions on the draft heads of Bill and I will use this opening statement as an opportunity to offer a summary of the main points of that submission.

Article 19 of the Universal Declaration of Human Rights guarantees the right to seek, receive and impart information and ideas through any media and regardless of frontiers. Article 19 of International Covenant on Civil and Political Rights enshrines the same rights. That article emphasises the freedom applies to information and ideas of all kinds. These key human rights instruments and principles form the basis of the ICCL’s submission on the Bill.

It is worth reiterating from the outset that Ireland enjoys, as Mr. Clarke acknowledged, a high standard of protection for whistleblowers in a comparative perspective. The 2014 Act is often cited in policy and academic literature as being effective for the protection of whistleblowers. EU Directive 2019/1937 offers an opportunity for the Oireachtas to go further in the protection of those who make protected disclosures. Whistleblower should, however, be seen as a regulator of last resort. Effective oversight is a more responsible manner for the state to prevent wrongdoing.

The ICCL has had the benefit of seeing the earlier session. It is important for us to acknowledge that in our work, we see the value of whistleblowers in many areas of policy on an ongoing basis, not least with regard to An Garda Síochána and the technology sector. It is the view of ICCL that a number of opportunities to strengthen the 2014 Act have, unfortunately, been missed in the process of transposition thus far. Steps can and should now be taken to remedy this. Our submission contains a number of practical recommendations to improve the legislation. I will briefly outline them now.

First, it is our recommendation consideration be given to including in the eventual Bill an explicit recognition of the value of whistleblowing outside of the context of employment and work as provided in the UN Convention against Corruption to which Ireland is a party. This could allow the inclusion of categories of whistleblowers such as patients who blow the whistle on wrongdoing in hospitals or parents who might witness wrongdoing in a school. We very much concur with the points made by the Bar in Ireland about the problematic definition of "worker" in the current draft.

Second, we suggest that the existing text contained in the draft heads designed to amend section 10 of the 2014 Act, should be altered to provide protection to those who seek to disclose wrongdoing or information which is in the public interest, regardless of their relationship to the organisation they are reporting.

Third, the ICCL recommends the decision to derogate from the directive by limiting the requirement to establish internal whistleblowing channels for private sector firms with fewer than 49 employees should be reversed. Small companies should be in a position to put in place the requisite policies. The ICCL, which has 13 staff, has such a policy in place.

Fourth, head 8 should be amended in order to ensure legal entities are obliged to investigate and follow up on anonymous disclosures where sufficient evidence is provided to act.

Our final recommendations relate to the proposed disclosures office. The ICCL submits that further consideration should be given to how this office could potentially examine protected disclosures arising outside of work and employment. Failing this, the office should be required to report to the Minister each year on the number and type of disclosures it has received, in addition to the investigative status relating to them.

Finally, the disclosures office should be tasked with providing a one-stop shop for whistleblowing information and support that could complement the existing resources in place, such as those offered by Transparency International Ireland and others. Article 20.3 of the directive contains a specific commitment to the provision of psychological support for whistleblowers and this should be included in the eventual legislation. It is the view of the ICCL that a commitment to resourcing these supports, as well as the provision of appropriate legal aid, is essential.

In choosing to derogate from a number of areas of the directive, the Oireachtas might pass up the opportunity to set a gold standard for protected disclosure internationally. We are choosing, unfortunately, to ignore a number of key provisions of international conventions to which Ireland is a party, including the UN Convention against Corruption, the International Covenant on Civil and Political Rights and the European Convention on Human Rights. Every effort should be made to ensure that the final version of the Bill respects those conventions to which Ireland is a party and is amended by this committee and the House in such a way as to ensure that the right to freedom of expression is to the forefront of an enhanced whistleblower regime in this jurisdiction.

Mr. John Farrelly

On behalf of the Mental Health Commission, MHC, I thank the committee for the opportunity to address it. I am joined by my colleagues, Orla Keane, general counsel for the Mental Health Commission and the decision support service and Joanna Macklin, decision support service senior panel manager and protected disclosures officer and recipient.

As part of the MHC's strategic plan up to 2022, our vision is the highest-quality mental health and decision support services underpinned by a person's human rights. We welcome the introduction of clear and enhanced protected disclosure procedures that will assist in protecting these individual human rights and bring us forward into a more transparent Ireland.

The principal functions of the MHC under the Mental Health Acts are to promote, encourage and foster the establishment and maintenance of high standards and good practices in the delivery of mental health services and to take all reasonable steps to protect the interests of persons detained in our approved centres. As a regulator, we welcome any legislative provisions which will support staff and other parties to raise concerns about the safety and quality of care for patients and other vulnerable service users throughout our country.

The remit of the MHC was extended by the Assisted Decision-Making (Capacity) Act 2015, which provides for the establishment, we hope, of the decision support service. The latter will support decision-making by and for adults with capacity difficulties and will regulate individuals who are providing support to people with capacity difficulties. It is the MHC's hope that this Bill will result in a continuing of the change in attitude to protected disclosures in the workplace by ensuring there are sufficient safeguards and protections. Organisations in that way will be less apprehensive of the possibility of false or vexatious disclosures and, most importantly, individuals will be empowered to expose wrongdoing without fear of retaliation.

In considering the general scheme of the protected disclosures (amendment) Bill 2021, we have confined ourselves to commenting on matters within our remit. In that context, the MHC welcomes the retention of the existing obligation that all public bodies must establish internal reporting channels. This is in line with section 42 of the Irish Human Rights and Equality Commission Act, which requires all public bodies to have regard to the need to eliminate discrimination, promote equality of opportunity and protect human rights in carrying out their functions. The MHC recommends that there be the possibility of local authorities and smaller public bodies pooling resources and sharing internal reporting channels. After all, it is our State's money and it is possible to do it. We have seen it in other areas. Over the past ten years or more, there have been increased obligations in the area of compliance. This proposal would allow for centralised expertise, increased efficiency, assistance with training and reduced costs for smaller agencies and, ultimately, help the person who wants to try to identify the wrongdoing.

The establishment of a protected disclosures office within the Office of the Ombudsman is a further proposal that the MHC especially welcomes. This centralised system is critical and should ensure consistency in reporting, investigation and communication. In addition, the MHC believes that this centralised office could provide supports to and guidelines for public bodies and people who want to identify wrongdoing. At the same time, it may be appropriate to make strengthened provisions for public bodies to decline or to redirect a protected disclosure where they do not believe it is within their remit.

The MHC notes that a number of issues need to be addressed: clarification on the issue of legal aid, the limits to liability of reporting persons, the timeframe for disclosure of a wrongdoing, limiting protected disclosures from job applicants and establishing more details on penalties under the Bill.

The MHC supports the transposition of the directive through the proposed amendments to the Protected Disclosures Act, which shall enhance the protections and scope available. We hope that doing this will continue to develop a more transparent, open Ireland where wrongdoing is identified and eliminated.

I thank the witnesses for those very interesting presentations and comments. I found them very useful. I will start with Mr. Clarke on a number of things he mentioned that I found quite interesting. He mentioned that the definition of "worker" is too narrow. I, too, am concerned about that because it seems to be silent on people working for voluntary organisations, external contractors, directors and so on. I assume from what Mr. Clarke said - and this is my view but I am interested to hear his - that he would be in favour of expanding that definition to include these types of workers. I am interested to hear his views on journalists as well. He might be aware, with recent things happening-----

(Interruptions).

-----attempt to sanction journalists who publish information in the public interest that has been leaked to them. Of course, I-----

(Interruptions).

-----impact on journalism, but I am interested to hear Mr. Clarke's views on those two things first of all.

Mr. Séamus Clarke

We do not really have a view as to whether the scope of the legislation should cover other areas such as journalists. However, I will make the point that, as things stand, workers are protected under the protected disclosure regime currently in place. Because the new changes will expand that to situations that are not traditionally associated with workers - shareholders, members of a board and potential employees who are merely job applicants - the general scheme attempts to deal with the directive as the directive is, so it deals with the new areas that are set out in the directive. There is nothing stopping a legislature going further than the directive because the directive simply sets out the goals of the European Union legislation. There is nothing stopping the Legislature from using the opportunity it now has before it to expand the various types of persons it wants covered in a protected disclosure regime. I noted in the contribution made by the ICCL that it has given an example of somebody who might be in the health service as a patient and who might have a disclosure they want to make. The benefits of having a definition of a reporting person which includes within its enumeration a worker mean that the Legislature can now, or even at a future date, easily include other persons it wants to enjoy the protections of protected disclosure. Therefore, we think it is just more sensible from a drafting perspective to have a cleaner version called "reporting person" and to include in it a worker and other persons, as in the directive, which effectively involves three other persons, and then the Legislature can decide if it wants to expand that further now or at any future date.

I thank Mr. Clarke for that. That is very interesting. My colleagues and I have been looking at and working on this, so-----

(Interruptions).

Regarding the concept of the interpersonal grievance, I share Mr. Clarke's concern about the clause whereby a disclosure characterised as arising from an interpersonal grievance could be dismissed. It should be clear that this could have the power to reject disclosures where circumstances such as bullying and unfair discriminatory treatment or dangerous working conditions arise. When somebody attempts to reveal wrongdoing, there is often a reflexive reaction on the part of those against whom the allegation is made, and they would be concerned about this. I worry that it offers an easier mechanism to dismiss the concerns because the whole concept of an interpersonal grievance is not that clear-cut. Does Mr. Clarke share my concerns in that regard?

Mr. Séamus Clarke

The first point I will make is that, in fact, Article 22 of the directive simply states that "Member States could decide to provide that reports concerning interpersonal grievances exclusively affecting the reporting person" could be excluded, so there is no mandatory obligation on the Legislature to include interpersonal grievances at all as something to be excluded. I agree with the Deputy, however, that sometimes in employment law grievances can overlap with disclosures of wrongdoing. For example, somebody could have had a previous grievance or may have a protected disclosure that has newly come to light to him or her and may try to bring it in as part of his or her interpersonal grievance. We have a concern that employers might attempt to shoehorn what is effectively a protected disclosure into a grievance procedure and, therefore, the protected disclosure may not come to light. We think, therefore, that if the Legislature decides to include interpersonal grievances, which is within its discretion, this would need to be defined very tightly in order that it would cover merely a clear interpersonal grievance between one person who is a worker and another worker and that it would not have any sort of tailing into a protected disclosure. Obviously, the spirit of this regime is to encourage reporting. We would not want to have anything that might discourage that at all, particularly in the case of somebody who, as I said, may be involved in a long-standing interpersonal grievance but has new issues to bring to light.

The Deputy gave a good example. One could think of a situation whereby somebody raises a grievance in respect of bonuses or expense claims. That may feed into some sort of financial impropriety. It is important that an employer could be able to not use interpersonal grievances to avoid dealing with bigger issue.

That is interesting. In some ways it leads me onto my final question for Mr. Clarke. Obviously, one concern many people have for those who make protected disclosures is the financial resources that a person must have to win the redress. That is an obvious a matter of concern for people who make protected disclosures. The income of an individual who is considering revealing a perceived wrongdoing should not weigh on his or her mind. The reality is that it does, however. I ask Mr. Clarke for his views on this. Does he think that access to free legal aid for whistleblowers would help them?

Mr. Séamus Clarke

That is clearly something that we are concerned about. Recent history has shown us that persons who make protected disclosures can have an uphill battle to bring those disclosures to bear. Also, they are sometimes isolated and incur great financial expense, particularly if there is retaliation brought to bear upon them. Having the added problem of having to resource a potential case against another party that is well funded and well able to carry on a battle through the courts or elsewhere means that a person could be dissuaded from bringing forth a protected closure because he or she knows that there is a long battle ahead. There is a high price to pay, both personally and financially, because of making a protected disclosure. We feel that not only should psychological support be made available to persons who make protected disclosures, but that civil legal aid should also be available to them. We use a recent example of where Minister, Deputy McEntee, has allowed the civil legal aid to be used by victims of sexual crime, so that they could get legal advice. There is precedent for extending civil legal aid to cover vulnerable persons. Often, persons who are making protected disclosures, in our view, could also be classified as vulnerable persons.

I have a question for Mr. Herrick on a matter I would like to tease out with him. It follows on from what Mr. Clarke stated to the effect that many people who make protected disclosures face an uphill battle. Last week, some brave people who faced just such a battle were before the committee. We heard their individual stories. One thing that came across quite strongly was how protracted and arduous the process was for the individuals in question. Given that Mr. Herrick has represented whistleblowers, I assume that he would accept that it can be a long and arduous process for people.

Mr. Liam Herrick

We certainly would agree. We would be minded in this regard of the contribution of our colleagues at Transparency International Ireland and the research they have done on the low proportion of whistleblowers whose cases reach successful resolutions. My colleague, Mr. Kennedy, might have something to add about our recommendations in respect of the process.

There is a particular issue I would like to tease out with Mr. Herrick, which specifically relates to that. I would be interested in Mr. Herrick’s views. I have some concerns regarding section 8 of the principal Act. The general scheme contains a provision which attempts to remove the right of a public sector worker to make a protected disclosure to the responsible Minister and the corresponding protections that that worker would get. Given that the principal Act allows such a worker to make a protected disclosure to the relevant Minister, does Mr. Herrick believe that the internal process of investigation was either insincere or was entered into bad faith? One had, in essence, another avenue to blow the whistle if one felt that the internal process was being deliberately dragged out or handled in a stage-managed way. The proposed Bill will remove that avenue, meaning that in most circumstances one would first have to exhaust the internal processes and procedures before going external. We have heard the stories of brave people who have come forward to make protected disclosures. However, people are only human. As we know, many whistleblowers have often faced penalisation. We, as human beings, can only take so much. Would Mr. Herrick agree that this would provide an additional barrier and that many whistleblowers would likely give up before ever reaching the point of going external? I would be interested in his views and those of his colleague on that matter.

Mr. Liam Herrick

Mr. Kennedy might have a point to make about that.

Mr. Ronan Kennedy

I thank the Deputy for that. Our submission comes from the stepped support perspective whereby internal channels should be the first port of call. When these are exhausted or seem to be ineffective, the matter should then be escalated to external channels or to the general public. I agree that in the context of the reporting mechanisms, the bar is potentially set too high to be able to move to an external reporting channel. The new proposed protected disclosure office could have a role to play in that regard. Some of my colleagues made submissions and raised the possibility that protected disclosures could be made directly to that office and not, for example, directly to a line Minister. The bar is potentially set a bit too high in that regard in the draft Bill, as it stands.

Mr. Liam Herrick

I would add that the issue of anonymous disclosures is relevant here, too. This is an area where the Bill could go further in terms of mandating bodies to investigate anonymous disclosures, acknowledging the acute vulnerability of many people who might be in a position to make disclosures. Stronger protections for anonymous disclosures and encouraging anonymous disclosures would be an important procedural safeguard that could be put in place.

I have concerns about that being removed. It would lower the standards not to have that direct reporting to a Minister. If anything, it is a case of “hear no evil, see no evil, speak no evil”. I have concerns in that regard. I would be concerned that it will lower the standards. It also goes against Article 25.2 of the EU directive. I have concerns that standards will be lowered if the option of reporting to a Minister is removed.

I have question for Mr. Farrelly. I have met with a number of whistleblowers in recent years. Many of them have told me about the huge toll the process has taken on their mental health. Some people felt – and you do not have to meet with a whistleblower to hear this – that their lives destroyed and that their careers were ruined. It is difficult to watch people who sought to act in the public interest suffering such personal hardship. We often hear about the importance of mental health, but what we need to see now are the necessary resources being put in place in that regard. Could Mr. Farrelly describe the psychological damage that he has seen people who have made protected disclosures endure? Access to free and independent psychological services, especially for those lower down the income ladder, could help ameliorate that damage. How could that be dealt with? I feel strongly that psychological services should be free for people who are doing something so good for the public interest.

Mr. John Farrelly

We said in our statement and submission that we believe that support should be given, so that there is a balance. An individual who identifies wrongdoing often goes up against people who usually have power and authority. In my previous career as Charities Regulator, I saw wrongdoers at work. Wrongdoers will use any tactic and to press down upon someone who identifies that. We therefore need protections in place for the individual. Legal aid was mentioned. It is about changing the culture in Ireland. We do not have to go back too long to think of Ireland, Great Britain and the culture of informers and traitors. Now, we are looking at how we in Ireland can accept that and support people who are acting in the public interest.

It involves getting our heads around that and ensuring that we have such supports in place. I am happy to hand over to my colleagues if they wish to comment further.

Ms Orla Keane

I am grateful for the opportunity to speak. Regarding the issue of supports, we made a submission to the Department in 2020. In that document, we stated that when looking at such supports that it is necessary to determine if those supports will be the difference between someone making a protected disclosure or not. If it is, then those supports must be provided. We went on to refer to a report from the European Commission that looked at the cost-benefit analysis in this regard. That showed that it was in everybody's favour to provide such supports. Therefore, the cost of doing so was outweighed by the benefits. I apologise to the members of the committee because I have not reviewed whether there is an updated report on that issue. It is important information, however, because much of the time when people are discussing supports, and especially in the case of the Government, getting value for money is an important consideration. In that context, though, there must be an examination of what supports will ensure that more protected disclosures are made and if those protected disclosures will ensure that there will be less wrongdoing. That is an important and useful perspective. Regarding the supports, as well, they may be financial but they could also be psychological. We should not necessarily pigeonhole them into one box. It would be very useful if the new office was given the power to provide those supports and was funded to do so.

Gabhaim buíochas leis na finnéithe.

I call Deputy Durkan.

I welcome our witnesses and thank them for their submissions. I hope that between us we can improve the legislation. We have all dealt with situations involving unfair treatment, bullying and-or sexual harassment, whatever the case maybe, within the workplace and outside it. The speed with which an issue can be dealt with is important. Are the witnesses satisfied that a review will deal with an issue in such a way as to ensure that it will be possible to have a rapid appraisal of a situation to allow for the content of disclosures or complaints to brought to the appropriate authorities with a view to resolution? Would the witnesses like to hear all my questions at once? I think taking one at a time might be easier.

I will add to that last question that we have all dealt with issues involving almost every profession, including the legal and education professions and academia. Every facet of life has brought to our attention various forms of discrimination within the workplace and between workplaces as well over the years. My point in this regard is that a parliamentary question posed by a Deputy will sometimes draw out the information. However, we have come to rely more on the freedom of information legislation and access through that route. In recent years, there has been a tendency in that regard for there to be a reluctance to give the information by way of reply to a parliamentary question and to rely on other avenues instead, such as that provided for by the Freedom of Information Act 2014. That undermines the authority of Parliament, however. Undermining the authority of Parliament, in whatever way, is not a good thing. I am trying to broaden the nature of my question by coming at it from that perspective. Any of our guests can answer.

Mr. Séamus Clarke

I will address that question first. Deputy Durkan raises a good point concerning the speed that an issue can be dealt with. We welcome in that regard head 21 of the proposed Bill, that allows for interim relief to be sought in the courts in more circumstances than have traditionally applied, which were essentially cases where people were potentially going to be or had been dismissed. In such instances, one can now go before the courts for interim relief if one is to be penalised in any way and not just by dismissal. An opportunity, therefore, is being provided to get into the Circuit Court and to get interim relief to prevent penalisation taking place. That can be done relatively rapidly. The Circuit Court will have to be resourced properly, because if this type of litigation becomes popular, then the strain on the Circuit Court will continue to manifest. One case involving a protective disclosure being dealt with will mean that another case is not being dealt with. The provision of interim relief in a more expansive way, therefore, will assist people to get before the courts who need to do so rapidly.

In addition, new procedures will now apply. People must have the receipt of protected disclosures acknowledged within seven days. There is also a requirement for such disclosures to be followed up diligently. Feedback must also be provided to the reporting person of the actions taken or envisaged within three months. This depends on the size of the organisation, though, and that is what is mandated as a potential to bring out from the directives. For example, the obligation is placed on organisations with 50 or more employees to establish formal channels and provide for employees to make protected disclosures, with a derogation until 17 December 2023. It is for the Members of the legislature to consider whether they want to set that number at 50 employees or to reduce it to include smaller organisations. There has been a history of wrongdoing in, for example, charities, where the number of employees in such an organisation would be much smaller. That is a qualitative decision to be made by the legislature.

We agree wholeheartedly, though, with Deputy Durkan's comments regarding speed being of the essence. There are shoots in that regard in these heads of the proposed Bill in the form of the potential interim relief measure and the speed at which follow-up must take place once someone makes a protected disclosure. It is potentially important, though, to consider whether there might be a need to reduce the number of employees in respect of those organisations covered by the provisions of this proposed Bill to allow for the maximum speed of response to people making protected disclosures.

I will take that point into account. I thank Mr. Clarke. I will expand that aspect further. Speed is important. From the perspective of employees making protected disclosures, are we happy that sufficient protections are available to people initially to ensure that they are not isolated or pushed into a situation where they might be seen as agents provocateurs or constant complainants? Are we satisfied that the means and structures exist to enable a proper, authoritative and full appraisal of cases and their merits to be made at the earliest possible stage and potential attempts at possible resolutions? Do those elements exist now? If not, why is that the case?

Mr. Ronan Kennedy

I will address this part of the Deputy's question. This aspect emphasises the importance of the possibility of anonymous disclosures for people within an organisation. The Deputy made the point that people could be viewed as agents provocateurs or as having a particular set of grievances, etc. That really emphasises the point concerning why anonymous disclosures should be provided for in this potential legislation. The emphasis should always be on the content of protected disclosures rather on the people making them. I say that because this drifts into the area that was previously discussed involving issues of personal grievances and things like that. I think the point the Deputy is making that anonymity should be facilitated insofar as possible in order to ensure that people can be protected to the maximum degree and to prevent concerns from being dismissed as arising from particular grievances about X, Y or Z. It is important point to make.

That is fine. The other part of that question concerns the thoroughness, or otherwise, of an investigation in response to protected disclosures from complainants. How will it be possible to know that sufficient time, effort and impartiality will be applied to the investigation of complaints?

I am willing to take answers from all witnesses.

Mr. John Farrelly

My colleague, Ms Keane, our general counsel, will speak to that point on behalf of the commission.

Ms Orla Keane

A number of the points raised by Deputy Durkan are linked. We are of the view that it would be useful to have a code of practice in place. This is where we envisage the new protected disclosures office having a role. We welcome the additions to the internal reporting channels but they could be enhanced. For example, while seven days are afforded to acknowledge a protected disclosure, the code should be clear on what should be done, how long a report should take, and it should contain more defined timelines. When feedback is provided, what is the format of that feedback?

I agree with my colleague, Mr. Kennedy, in the context of his comment about it being about the content and not the person. There should be a clear code of practice setting out issues of confidentiality. In the commission, for example, we have an email address to which protected disclosures are sent. When a person makes a protected disclosure, it goes onto a system and only one person can view that documentation on the system. That person does not discuss it with other people in the organisation. There should be clear guidelines for the protected disclosure recipients about how they deal with these matters and if a case of improper conduct arose, perhaps the new office could address that. Supports are needed on both sides. The protected disclosure recipients should have clear codes of practice on how to deal with disclosures within a specific period of time. If they do not have the expertise, they would have to send the matter externally. I expect that many smaller organisations will not have the expertise to deal with this matter and they should be obliged to put their hand up to say they do not have the expertise. Likewise, the protected disclosure recipients may be on the same team as or knows the person making the protected disclosure or may have had an issue with him or her. If they are in a small office, there may be issues of bias. They need to know when to refer the matter externally. The code of practice would be useful and if the new office provides that, it will go a long way in assisting us with those queries.

I refer to the issue of impartiality. If a person makes a genuine complaint, he or she has a right to be able to depend on the issue raised being dealt with impartially. The guidelines and regulations may change this. Guidelines are not much good because they are only guidelines. In the case of statutory guidelines or orders, it is somewhat different. We have all dealt with cases on reporting a matter by way of a parliamentary question where complainants know, and can point out quickly, why a certain answer was given. They have said it was because of A, B and C, which in turn suggests they did not consider the case was dealt with impartially. How do the witnesses feel about the impartiality of the current or required structures? Do they consider they are reliable?

Mr. Séamus Clarke

I invite my colleague, Mr. O'Leary, to respond to that.

Mr. Raphael O'Leary

If an employee is concerned about the impartiality in which his or her protected disclosure would be received, in the working context, head 10 of the general scheme provides for external reporting channels. The worker could avail of this option. The external reporting channels sets out a list of prescribed suitable bodies - these would be regulators - and if there is not an appropriate regulator for that given area of concern, the worker can make the protected disclosure to the newly formed protected disclosures office. That will act as a safeguard and default suitable authority in the event of there not being an appropriate regulator for that area of governance. It is for would-be whistle-blowers to determine whether they believe they will get a fair hearing in their workplace. If they fear they will not, the external reporting channels are available to them and, if not, the protected disclosures office is the default authority.

Does Deputy Durkan wish to conclude? The Deputy is on mute.

A vital button: the silence button. I apologise for that. There are some situations where women, particularly in cases of nuisance or unwanted sexual advances, are reluctant to go outside, when taking the immediate step of reporting, the appropriate authority within the structures of the profession or the business. How do we respond to those kinds of situations? I do not wish to encourage frivolous reporting either, however, at the same time we have to protect the people who encounter an illegal experience, and do so effectively. Some people are reluctant to go to what they perceive as unnecessary lengths to prove their case and may shy away from reporting it. Have we prepared for that situation sufficiently or do we anticipate it?

Mr. Ronan Kennedy

I will offer an opinion on that. To build on what Mr. O'Leary said, if disclosers believes the internal reporting channels are insufficient or have not been responsive to their complaints, the option is open to them to go to a regulatory body or similar body. Failing that, the protected disclosures office would be an option for them. I sound a note of caution on that. The experience in the Netherlands suggests that a centralised disclosures office, such as the Dutch House for Whistleblowers, can become completely overwhelmed with cases and significant backlogs can develop. This occurred in a state where, traditionally, funding for such regulatory bodies has been consistent and generous. The experience in Ireland suggests, unless the protected disclosures office is adequately funded and is able to deal with the volume of complaints it could potentially receive, it could become a serious choke point.

On the Deputy's previous point, delays could occur there and if a person is not comfortable reporting to internal channels or regulatory bodies associated with his or her industry, this could become a potential bottleneck. It speaks to the idea that there is a role for civil society also. Organisations such as Transparency International Ireland operate services whereby people can make reports to. There should be a multitude of channels to which people can make their disclosures, not just regulatory bodies or the new office, but also in civil society.

I have to move on. I have one last question, if the Chairman will allow. We all have dealt with cases where situations developed which required the disclosure to be made in the normal way. We also know cases in which people make allegations that are not well grounded. This brings me back to the initial examination of the complaint and who examines it, and the degree to which a clear conclusion can be reached as to the merits, or demerits, of the complaint, in addition to being fair to both sides, which is important.

In the event of a situation emerging whereby action is required, that should be referred to the appropriate authorities as a matter of urgency. Who wishes to respond on the merits of the case in the first instance? We may have some data to refer to here as to the number of cases previously dealt with, the number of cases that were deemed not to have any merit and the number that were deemed to have merit. Have we any data to enlighten us in that regard?

Is there any data available on the issues raised by Deputy Durkan? The answer is "No".

Chairman, I think there should be. It is important, particularly if we want a responsive situation in terms of the questions raised by the complainant. In the event that the complaint is not valid, that needs to be dealt with at an early stage in order to protect the complainant and the person against whom the complaint is made. Do we have procedures in place in that regard at present? If not, why not?

Mr. Ronan Kennedy

Under the current protected disclosures regime, public bodies are required to issue a report on the number of protected disclosure cases that are forwarded to them every year. I am not sure about the rest of the public service but I know that in local authorities, for example, the level of such reporting has not been great in the past few years. In 2018, only 54% of local authorities actually put forward their reports and in 2019 the figure was 45%. It would be a good start if those reports from public bodies included data on false disclosures or disclosures that were not actioned through lack of evidence. As the Deputy said, that could be a good start. I am not sure about private sector bodies. The protected disclosures office could have a role in receiving those reports and then issuing a report to the Minister annually so we can see how the legislation is actually operating. In terms of the reports coming in, data on whether there are any disclosures that are not actioned due to lack of evidence and the speed with which disclosures are dealt would be useful so that we can see how we are progressing, year on year.

I thank the witnesses for coming before the committee and for their presentations. Obviously, our purpose is to carry out pre-legislative scrutiny on this important legislation. We want to improve it as best we can before it is enacted by the Houses of the Oireachtas. I would point out that we must engage in a balancing act in terms of ensuring that the procedure is fair for the person making the complaint, to make sure the method of making a complaint more appropriate and relaxed while also ensuring the rights of the person against whom a complaint is made. In fairness to the witnesses, Deputy Durkan asked why we do not have the data we need but that is really the responsibility of the Oireachtas. It is our job to ensure that if complaints are being made and if we are setting up a new protected disclosures office, that the office provides the relevant data to the public.

My first question is for Mr. Herrick. I am interested in one of the ICCL's recommendations in respect of ensuring that legal entities are obliged to investigate and follow up on anonymous disclosures. In fairness to the ICCL, it is not saying that all or any anonymous disclosures should be followed up but that they should be, where sufficient evidence is provided. Does Mr. Herrick think that is something that would need to be written into the legislation? Should the Bill state that a certain threshold of evidence is required or could the ICCL's concern about anonymity be overcome if there was a requirement that the name and identity of the complainant would not be released by the protected disclosures office or whoever is investigating?

Mr. Liam Herrick

I will invite my colleague, Mr. Kennedy, to address that question.

Mr. Ronan Kennedy

I thank the Deputy for what is an interesting question. I made the point previously in response to another question that the emphasis with regard to protected disclosures should always be on the content of the disclosure being made and not the individual in question. There could be very good reasons for a person choosing to make a disclosure anonymously. Our colleagues in Transparency International found that either the first or second most important reason for people coming forward to make a protected disclosure is that their anonymity can be guaranteed. While I take the Deputy's point that if a name, a position or similar had to be given to the protected disclosures office on the understanding that it would be kept confidential, requiring that in a situation where there is enough information provided in order to at least assess the validity of a disclosure could potentially prevent people from coming forward. As the Deputy pointed out, the ICCL is not saying that all anonymous disclosures should be followed up but where there are reasonable grounds for investigation or a reasonable threshold of information required, then a follow-up should be required.

I thank Mr. Kennedy for that answer. My next question is for Mr. Clarke and the Bar Council. I was very interested in the point he made about section 13 of the Protected Disclosures Act and how it limits the options available to a person who has been discriminated against as a result of making a protected disclosure. He also referred to the capacity that exists for a person who has made a protected disclosure to apply for interim relief. If an employee applies for interim relief before the Circuit Court, does he or she have to, under statute or common law, give an undertaking as to damages, as is the case in most applications for an injunction? If that is the case, is that a deterrent for employees to seek that interim relief because of the threat hanging over them of an undertaking as to damages?

Mr. Séamus Clarke

Absolutely. That is a very good point. Persons seeking interim relief or injunctive relief traditionally have to give an undertaking as to damages should they not succeed in their litigation and that in itself could potentially be a deterrent to somebody going before the courts for interim relief. It is something that would have to be considered by the Legislature because I do not think it is something that could be covered by Circuit Court rules, for example. We are dealing with new territory, with situations where interim relief would be opened up in circumstances not traditionally seen before and the Circuit Court would have to deal with that. Again, as I have often pointed out, the resources of the Circuit Court would have to be there too. We are talking about people in the Circuit Court dealing with a complex area which will have to be newly thought through by judges, which could prevent other cases being heard on that day. Therefore, it would have to be properly resourced but I agree with the Deputy that having to give an undertaking as to damages in an injunctive case could potentially be a deterrent to an applicant.

I thank Mr. Clarke for that. I wish to pose a rhetorical question but I do not expect the witnesses to answer now because it would require much more consideration. One would have to also consider the extent to which the constitutional protections that an employer would have would be preserved if there was no requirement to provide an undertaking as to damages but that is not a matter for the witnesses or for me today.

My final question is for Mr. Farrelly of the MHC. What would he like to see done to ensure that the public at large is made aware of the existence of the protected disclosures office, that their rights can be protected and that the statutory entitlements they have under the Protected Disclosures Act are available to them? Is this something that should be publicised? Should it be done through the public sector or the private sector separately?

Mr. John Farrelly

I will pass that question over to my general counsel colleague, Ms Keane, but I believe that public bodies and most corporate bodies tend to look after themselves more than they look after individuals. Where an individual is raising a wrongdoing, careers may be at stake and systems may be called into question so there is a defensive instinct among people who have power and those at the top, as we have seen over the last ten or 20 years. There is a defensive instinct so the idea of a Leviathan or an oversight or scrutiny body that people can go to, with guaranteed impartiality, would add value. I will now pass over to my colleague.

Ms Orla Keane

If the office is being established, it provides an opportunity to review the key functions the office could do. For example, the new service the commission is setting up is the DSS. One of its functions as set out in the legislation is to provide information and to add to the code of practice. Additional functions could be added into the Bill to specify that it is a function of this office to provide information by whatever means and to specify the extent to which it provides information. It could also clearly set out that one of the functions of this office is to produce codes of practice. As we said in our submission, we welcome this new office but we also think it is a prime opportunity to expand the role. As this office is just being set up, let us take the opportunity now to set out what functions it can be given.

I also spoke about providing supports. I understand that has financial implications. I also referred to the cost-benefit analysis report that was done in Europe. This is an opportunity from the outset to set out all the functions this office could do to provide supports to both sides, as Deputy Durkan mentioned, to both the employee and the employer, the person making the protected disclosure and the person who is handling the protected disclosure. All those functions could be added to that office.

I thank Ms Keane for that answer.

I thank all the speakers who have given some very interesting answers. Some of my questions have already been asked, but I will follow up on a few of them. Ms Keane just spoke about the functions. Mr. Kennedy spoke about a report on the kinds of disclosures that are being made. Should there be a function to try to identify patterns in disclosures? I know we rightly have clear caveats on the retention of individual information so that they would only be for the individual disclosure being investigated. To identify patterns of financial abuse, workplace abuse and so forth, could it potentially be part of the function of the protected disclosure body to try to knit together the patterns? Rather than individual instances, we could perhaps begin to identify the kind of cultural shift we need. We have seen the recent example with the Army. We should not need to have a whistleblower, followed by another whistleblower five years later and another one ten years later.

I take on board the points Mr. Clarke made about reporting in person. He briefly mentioned members of a board and I ask him to expand on that. People are often told or are under the impression that they are bound by confidentiality in particular contexts. People need to be very clear that their right to make a protected disclosure is not limited by, for example, a confidentiality agreement they may have in respect of certain aspects of their particular role in work.

I would be very interested in any of the speakers' takes on some of the key problems we know we had in the past which seem to be addressed here. One relates to the protected disclosure ending up going back to those about whom the disclosure is made. I am concerned about that point where the person who has received the disclosure is assessing whether it has merit or needs additional information. Is there sufficient protection at that point to ensure they are not making that assessment in a way that exposes the reporting person?

I think this point may be addressed here. We had ambiguity in the past where people made protected disclosures to a Minister and then the Minister changed role. It was not clear if it is the individual who received it that is the recipient, or if it is the role that is the recipient. We had disclosures that were falling between stools. Has that been adequately addressed?

I wish to deal with the question of compensation. I am concerned about the stories we have heard from whistleblowers. The compensatory package is capped at €13,000. We know the damage done to people's lives for whistleblowing in Ireland has often been quite extreme. People have lost their homes, their livelihoods and ten or 15 years of their career in some cases. I ask the witnesses to outline their thoughts on that compensation. We have discussed at length the interim measures but I am asking about that ultimate piece.

This is not about being retrospective, but it is about cases which are almost still in play. Two of the great frustrations we have heard from people is the lack of communication to them about what has happened on cases. I see that improved in this Bill in that they get enough feedback within three to six months and they then would be entitled to know the ultimate end point. However, some of the whistleblowers we have spoken to have gone four or five years without knowing what is happening, sometimes when they are still in the workplace about which they have made a complaint. Is there a need for an interim communication point where they can seek an update on whether the matter is still in process to know what is happening rather than waiting for the end point?

Many of those who sought compensation under the previous system were not able to access it or have never had that claim properly processed. Where the disclosure is in the past but there has never been a final communication as to what happened or there has never been a final resolution of the claim for compensation, should those persons still be able to apply under these new rules? Even though the disclosure point was in the past, they are still effectively awaiting satisfaction from the system under those two particular remits.

Mr. Séamus Clarke

I might respond to two of the issues the Senator raised. The first one related to the member of a board who would now be a person who could make a protected disclosure and seek the protections that are in the general scheme of the Bill. That new category of person who is entitled to protections under the protected disclosures regime is effectively one of the new categories of persons in the directive. The general scheme of the Bill simply puts into the Bill what is in the directive, specifying a member of the administrative, management or supervisory body of an undertaking, including non-executive members.

The Senator raised the issue of a duty of confidentiality a role might entail. Nobody is forced to make a protected disclosure if he or she chooses not to, but if that person chooses to make a protected disclosure, he or she gets the protections that are afforded by the legislation. I suppose the way to approach it is that any duty of confidentiality that person feels he or she has must give way to the greater public interest in receiving information about the relevant wrongdoing. Therefore, I do not believe that person would be bound by their duty of confidentiality whatsoever. In fact, it is quite the opposite.

The directive gives an opportunity for two categories of person to be protected whereby they do not have to make a protected disclosure, those being healthcare professionals and lawyers. One can see why that is the case because a lawyer clearly has a duty of confidentiality which is an ethical obligation in respect of his or her dealings with clients, and it is likewise with healthcare professionals. There may be an opportunity to allow an exclusion for lawyers, in particular, because of their duty of confidentiality. That said, even if that were not there, lawyers still have their overall obligation and duty of confidentiality that would protect them in any event should they not make a disclosure.

I wish to clarify that I certainly was not seeking more exclusions. I just want to ensure people would not have doubt.

Mr. Séamus Clarke

Regarding compensation being capped at €13,000, that is for the new non-traditional categories of persons who are now being encompassed in the legislative scheme, including shareholders, people who have applied for jobs and board members. They are the only ones to have their compensation capped.

I suppose that is a proportionate response to the fact their damages would not seem to be as weighty as another person who was in employment because maybe they are a job applicant, for example. I suppose it is a proportionate response to try to match the balance that is there between employers and employees. The judge could be the ultimate decider of a cap on the merits of a case before the court, but it is a legislative choice for the Oireachtas to decide what cap is relevant in the circumstances.

I forgot to pose one of my key questions, which concerns the interpersonal issue and other procedures. If somebody has had an interpersonal conflict and is engaged in a different procedure in that regard, it may curtail the person in being able to separately make a protected disclosure or vice versa. I just wanted to address a position where people may wish to pursue a route through human resources relating to an interpersonal conflict but may also, separately, want to make a protected disclosure. Are we confident the Bill does not create a position where people might feel they have to choose which course to take?

Mr. Séamus Clarke

On the question of interpersonal grievances, the exclusion put into the general scheme could cause a difficulty for somebody already in an interpersonal grievance process and who has a disclosure to make. That is if the employer was adamant in shoehorning the new revelation into the grievance procedure. Again, that is why we say this must be very tightly defined in order to ensure it is merely an interpersonal grievance issue only. As I stated, there is no obligation on the Oireachtas to even include interpersonal grievance as an exclusion in this legislation. It is a discretion within the member state to do so. We share the concern pointed out by the Senator and we want to ensure an interpersonal grievance is exclusively that.

I have a number of questions. Some of the topics have already been dealt with so I will delve into some specific areas that have not yet been covered. In particular, I am interested in whistleblower legislation and the impact it has on protection and the laws applying to the financial services sector. I am sure our witnesses are familiar with what happened after the collapse of Enron, when the US Congress passed the Sarbanes-Oxley Act in 2002. The latter provides for what could be called extensive administrative, criminal and civil provisions, with significant protection for whistleblowers so that employees could disclose information that was mainly about harming investors, especially in dealing with acts of fraud. It prohibits companies from retaliating against the whistleblowers who provide true information - that is important to note - to authorities regarding potential offences, such as bank fraud. It also provides that prevailing employees are entitled to reinstatement, back pay with interest and also special damages and legal fee costs.

I have raised this before at committee meetings in different forms. Under the Dodd-Frank Wall Street Reform and Consumer Protection Act in the United States, an award programme was created through the Securities and Exchange Commission. That programme provides awards of between 10% and 30% of funds recovered for information provided by whistleblowers. Are any of the witnesses familiar with these legislative reforms in the United States relating to whistleblowers that would incentivise employees in coming forward? There are measures in the financial sector relating to first movers and not being prosecuted when people bring forward information relating to activities in the financial sector. I am speaking about the incentivisation of employees in coming forward with the type of reward we see in the United States, which is between 10% and 30% of the funds recovered. How would the witnesses compare these types of provisions to the Irish system? Is there an opportunity to introduce some of these provisions within the Irish framework for whistleblower protection legislation?

Mr. Séamus Clarke

I can make a brief contribution on that. Head 6 of the general scheme outlines specific rules on the reporting of instances of relevant wrongdoing are provided in the sector-specific union acts and those rules should apply. The Deputy raises a very important context, which is whistleblowing in the financial services sector regarding financial impropriety and a lack of probity in financial matters. That is probably a greater area that we have not dealt with in the same way as they have in the United States. It is absolutely open to the Legislature to deal with this important matter in separate legislation and provide incentivised schemes to encourage people to come forward.

It has been pointed out by many Deputies, including Deputy Doherty, that coming forward with information of this nature can be perilous to one's career, financial stability and relations with family members' mental health. The attraction of an incentivised scheme is that it would really incentivise somebody in going down what is a perilous and difficult road, particularly in areas of financial impropriety, where the gains to the State from recouping where there has been a large degree of impropriety, can also be shared with the person who took the bold move of making the relevant wrongdoing known. It is a greater project to pass legislation in that area and it is of course a path open to the Legislature.

I appreciate that response. I am not sure if anybody else wants to comment on the matter. I have some experience with whistleblowers in the financial sector. There is no incentive for whistleblowing, but it is my firm view that for some of the wrongdoing within the financial sector, somebody on the inside is required to tell the story, or otherwise we cannot get to the crux of the matter. A financial incentive should be considered in the context of gains that would be recouped to the State from a successful prosecution and the stamping out of the activity in question.

I accompanied a number of whistleblowers to the Central Bank of Ireland a number of years ago. They were whistleblowers within the moneylending sector. They were directly employed and blew the whistle about practices in the sector. That led to the highest ever award being made against a company where a whistleblower had acted, which stretched to hundreds of thousands of euro. All the individuals who accompanied me to the Central Bank that day to provide that information, which led to the fine, lost their jobs.

What would the witnesses say to somebody in that position? Does this strengthen their rights or the protections involved? Is it the reality that no matter what is written on paper, these individuals in the financial sector are taking a risk in coming forward? There is also another problem because the information may be given to the Central Bank but the bank never communicates afterwards because it the investigation would be life. The bank will not say if it will prosecute or if it reached an agreement with the entity being investigated. A whistleblower is left completely in the dark about the progress or outcome of the investigation. He or she would read about it like any other citizen if a prosecution, administrative sanction or any other sanction is taken by the Central Bank against the entity.

Mr. Séamus Clarke

I can speak about the reliefs available to somebody who has been dismissed from his or her job. As it stands, the cap is up to five years of financial remuneration under the unfair dismissals legislation. It is greater than the normal case, which is two years of financial remuneration.

That is remuneration that is capable of being recouped.

In a difficult environment where somebody is a whistleblower, there may not be a prospect of him or her being reinstated in the job. If the employer has created a situation whereby that person has been dismissed, that has not been a supportive environment for him or her to be working in. I do not think the Workplace Relations Commission would be likely to impose reinstatement in circumstances where, effectively, the employer does not want the person back. It is capped, therefore, at the five years' remuneration. Moreover, the Workplace Relations Commission is probably not well equipped to deal with the other sequelae that follow from being a whistleblower, such as the mental hardship that occurs. It is just not really equipped to deal with those other facilities.

Nevertheless, the Deputy raises a good point. This legislation does not really deal with that issue; it just keeps it in place. There is five years' remuneration, under the unfair dismissals legislation, and that has not been changed or altered by the general scheme.

Without getting into the historical issue of that legislation or how other people are employed, the challenge here relates to the fact that moneylender would claim that it does not directly employ the individuals who sell the loans but that they are self-employed and, therefore, not entitled to that type of protection, which leaves a huge gap in respect of somebody coming forward with the information and the protections that could extend to him or her.

The Government's proposed Bill would exempt private sector firms with 50 employees or fewer but an accountancy firm, for example, with fewer than 50 employees could be dealing with significant volumes of funds. If an employee identified wrongdoing, perhaps in the form of tax abuse or corporate malfeasance, he or she would not enjoy the same protections as public whistleblowers or workers in firms with more than 50 employees. Will this not create unnecessary risks?

Mr. Ronan Kennedy

I might come in on that. I fully agree that it will create an unnecessary risk. Obviously, the financial sector is one where there are particular risks. As for private sector firms in general, in our submission we have suggested that the exemption for private sector companies with fewer than 50 employees should be reversed, given the number of employees who would be actively excluded from protections if that were to be the case. A large number of private sector employees are employed by companies of fewer than 50 employees. As was mentioned, technology companies constitute another area of particular concern to the ICCL. We think of Facebook, the Google and organisations like that, but there are many smaller technology companies that have a small number of employees but a large or outsized impact. Malfeasance and so on in those organisations as well should be called out and channels should be established in that regard. We are very much in favour of extending the protections to companies with fewer than 50 employees.

I have some questions for our guests. How many cases have ended up in court arising from the current legislation?

Mr. Séamus Clarke

There has been one celebrated case in the High Court in respect of protected disclosures, but there has not been a great rush of cases before the higher courts. There have been a number of cases before the Workplace Relations Commission. I do not have the data to hand but others, particularly Transparency International Ireland, have produced reports in which they discuss the number of cases before the Workplace Relations Commission. What is noteworthy is there have not been many successful cases among all the cases that have been brought. Others might know the exact numbers but there have been no more than five, six or seven in the superior courts.

Okay. The one case Mr. Clarke mentioned relates to the private sector. Is that correct?

Mr. Séamus Clarke

Yes.

Is Mr. Clarke aware of the use of mediation in this process? How successful does he think it is in the context of current legislation?

Mr. Séamus Clarke

The Workplace Relations Commission has a mediation facility available. In fact, it tries to-----

(Interruptions).

Mr. Séamus Clarke

-----mediation to take place in cases. The superior courts are always trying to get people to mediate their cases if possible. That is to be encouraged given, as we have often said, the resources of the courts at present. The President of the High Court was seeking additional judges because of the significant volume of work that is anticipated in light of the fact there was not much work over the past 18 months. Mediation is always to be encouraged and, in certain cases in the commercial court, it has to be seen as the first alternative before listing the case for trial. The Bar of Ireland strongly encourages all sorts of mediation in all sorts of cases. A protected disclosure case may not always be the sort of case that will be ripe for mediation because of the particular issues that might be involved. Nevertheless, it should absolutely be encouraged.

Do our guests know how many cases may have been settled without going to court, or on the steps of the court, that included a clause restricting any discussion about the settlement or the issue?

Mr. Séamus Clarke

Again, that would be a difficult piece of data to get because individual cases might be settled well before reaching the steps of the court and, therefore, nobody would even see that they had been on the cusp of going to court. Those sorts of data would not be available or, in my view, even be capable of being made available.

In the main, we seem to be dealing with cases involving Departments or State agencies. They relate to the State itself. One of our guests mentioned power and authority. That power and authority is seen to the greatest extent in cases involving the State. It has the ability to stall the case, destroy an individual or hide the consequences of actions. It appears to me, from the concerned citizens acting in the public interest who have come forward to date, that all of them have been brutally beaten up by the State. Have our guests seen anything in the review of this Bill that will deal with such issues?

Without naming names, in cases where a protected disclosure has gone to a Minister, the person making the disclosure would find it very difficult to have it processed. If a complaint has been made through local government, it is almost the same process. It is a case of defending at all costs, rubbishing the person making the disclosure and preventing resolution. That is according to the evidence given to us by Mr. John Wilson, Ms Julie Grace and Mr. Noel McGree. In fact, in Mr. McGree's case, as the committee heard last week, the Workplace Relations Commission found in his favour but the Department in question still did not pay the person. How can we ensure such cases will be dealt with firmly and adequately in this new Bill? Do our guests have suggestions? Is there another country in whose direction they might point us in order that we could examine its legislation?

Mr. Ronan Kennedy

I might make a comment to begin. My colleague, Mr. Herrick, mentioned that whistleblowers are often the enforcers of last resort when it comes to public sector standards and exposing malfeasance, malpractice and so on.

I believe the point the Chairman is making, which Senator Higgins alluded to previously, is that there is a broader culture in Ireland, which, unfortunately, goes beyond the scope of the proposed Bill, of not being particularly good at accountability or oversight. We are also not particularly good at equipping regulatory bodies with the resources they need to be able to investigate complaints. In some ways, it makes sense that Ireland has very strong existing whistleblower protections. We need them because we do not have a culture of openness and transparency in local or central government. I know that is a very big point which goes beyond the scope of the proposed Bill but I notice that many of the contributors last week also mentioned it. There is a cultural issue that the proposed Bill cannot address, but it is something to consider. I am not sure if anyone else wants to add anything.

I will take Mr. Kennedy up on that point, and I encourage others to contribute. This proposed Bill is being put forward in the Minister's name, but it was, by and large, written by civil servants. These are the very same civil servants who set out to protect the State at all costs, using taxpayers' money, and to vilify the person making the protected disclosure. In trying to get the best out of this proposed Bill and force open that culture of secrecy, which is a bad culture which is alive and well within the Civil Service and the public service, we have to reach out to people like the witnesses to give us a reasonable steer on how we might address the issues that have confronted us as legislators and those who have made a protected disclosure in the past to give them the best chance to have their case heard. If we do not get the information from outside of these Houses, we are going to be landed with legislation that will be stacked against whistleblowers. We have had whistleblowers before the committee. I have given their names. There are many examples. The biggest example is, of course, Maurice McCabe. Is there anywhere the witnesses can direct us to, or is there anything they can advise us to research, to strengthen this Bill beyond where it is currently to give a better chance to whistleblowers?

Mr. John Farrelly

I can speak to that as chief executive of the MHC. I have been a regulator for many years, regulating State bodies in the health sector, the charities sectors and, now, the mental health sector. I have also encountered many private businesses that worked in the charitable sector such as accountants, financial professionals and so on. The protections in the general scheme for people who blow the whistle are key. I am talking about protections for ordinary citizens to allow them to identify relevant wrongdoing. Many of the acts of wrongdoing listed in the general scheme are criminal offences. The idea is that if a good citizen spots a criminal offence or wrongdoing, they should be able to come forward. The reason we are bringing in this proposed Bill is that most people do not seem able to just go to the Garda. We are trying to protect them because they are within a big construct.

With regard to public service bodies, there is a misconception about what protecting the State means. Many people seem to think that protecting the State means protecting politicians. It is about ensuring that our Constitution and our laws are adhered to. I will pass over to my colleagues soon but I genuinely believe that an independent office is required to support this culture of transparency and openness. You can protect the recipients but we should add in the ability to publish the reports. If bodies act glacially and are not prepared to meet the law, offences could be introduced. We could be a little bit more robust in that way. It is really just a recognition. We have to understand that, in fairness, Ireland is changing but the bottom line is that people with power do not necessarily want people without power telling them they are doing things wrong. It all comes back to relevant wrongdoing. Offences are listed here so that we can protect our citizens, good decent working people, and allow these actions to come out into the open. It is a strengthening of the proposed Bill with regard to oversight.

Ms Orla Keane

I will be brief because I see a number of people wanting to get in. Consideration may need to be given to the issue of anonymous complaints and there being an obligation to deal with them subject to certain criteria. That appears to be a stumbling block, as we have seen from Transparency International Ireland. That is one thing I would ask the committee to look at.

While the proposed Bill refers to supports, it is not entirely clear as to what these are. Those supports should be set out clearly and should move to the new office. I emphasise that these supports are important because supports should be given to people at an early stage so that they do not end up in difficulty with their employers. These people should be appropriately advised so that they never end up in litigation or getting fired, as Deputy Doherty said.

The lack of data, which a number of members have mentioned, is another issue. There is a requirement to report in the Bill. Each public body has to report certain matters in its annual report. I should say that, when I did this section of the commission's annual report a number of years ago, I was taken aback by how little information was requested. At the time, we did not have a protected disclosure but additional elements could be included to increase the reporting requirements on public bodies. That should be relatively easy to do. The additional data that is desired should be set out in the legislation. The private bodies with more than 50 employees should also be subject to this and should face reporting requirements. Those requirements could be linked to annual reports or financial reports. Perhaps consideration needs to be given to penalising public bodies where a recipient's name is disclosed and to how that is deal with. That is quite a significant step to take and a major consideration but, if we want to balance the playing field for the parties involved, that may need to be considered.

I will put another question to the witnesses. This is again based on a real example of someone who made a protected disclosure. I am again asking how we can deal with this issue. It was mentioned that a person making a protected disclosure was named. That person was named at the Committee of Public Accounts. I assume a law has been broken. The president of a newly formed technological university refused to meet to try to resolve the issue raised by a particular whistleblower. We have had nothing but stonewalling of the process of dealing with a protected disclosure by the same entity. It is interesting that Ms Keane has put forward the opinion that there should be sanctions. Should those sanctions be directed towards individuals because in Ireland we tend to blame and hide behind the entity? We do not like to blame the person who has actually broken the law or who is preventing the law from being implemented. This affects everything from the Garda to universities to Departments. The process of dealing with most of the outstanding protected disclosures that I have seen is being hindered by senior civil servants.

In the context of addressing that in the proposed Bill, what suggestions do the witnesses have?

Mr. John Farrelly

If we are finding that this is operating at the senior public service level and senior political level, then we have got the process wrong. The process should be happening at the level where the ordinary individual is finding out where the relevant wrongdoing is happening. If one thinks of the Oireachtas, one thinks of the Ministers and the civil servants, policy directions and legislation. Where someone is finding a relevant wrongdoing, where there may have been an offence, that is getting the structure right within the organisation, the checks and balances. What the Chairman refers to is probably desperation on someone's part because the system is not working for them at the appropriate level. I would question the idea that we are protecting one person, or as the Chairman put it, blaming individuals because if we go down the route of blaming, we will not get the just culture or the necessary change. People who are significant wrongdoers over the years are often intelligent, tactical and capable of gaming the system. What we want to see is an institutional approach that creates transparency and accountability. The Chairman referred to different entities which may be legal constructs like companies or charities, for example, which will have individual trustees and directors. There are laws in place to enable them, if there is wrongdoing or a potential criminal offence, to put systems in place to deal with that. Most people are reasonable and decent. We are trying to get structures in place so that the person who is doing wrong is not given a competitive edge.

In terms of the experience to date, if one asks most whistleblowers if they would do it again, without hesitation they will say "No" because their families have been destroyed, they have been destroyed, their careers and their mental health have been destroyed while what they reported, particularly within Government agencies, is still ongoing. That is a terribly bad example to set. We have to find ways, within this proposed Bill, of dealing with these issues so that they do not continue to go on. It is not easy for us, as I have said, because the paperwork and legislation is drawn up, in the main, by civil servants. I ask the witnesses to reflect on what they have said to us today and on the conversation we have had, which has been very good and very constructive. I urge them to reflect on the issues we have raised to see if they would like to make any further comments or written submissions. I direct that comment to each of our witnesses because I found their contributions today very helpful.

Senator Higgins has asked that the witnesses respond in more detail to some of her questions.

Mr. Liam Herrick

I wish to respond to the Chairman's comments and then deal with what Senator Higgins had to say. The Chairman has provided a very important context for the negative experience of whistleblowers in many areas in recent years. In our view, there is a limit to what can be achieved by the legislation before us. That said, our recommendations and the recommendations of all other contributors point out that there is an opportunity for this committee and for the Oireachtas to ensure that we broaden the range of persons who can make protected disclosures and to make provision for important strengthening measures vis-à-vis the protections once people have made disclosures. There are practical steps that can be taken but, ultimately, there is a question here of political will. As has been noted in some of the submissions, we have had a troubling experience to date. Even at the level of reporting on the procedures and policies that public bodies are obliged to have in place, the record of providing that procedural, meta-information has been very poor. Perhaps that is something that this committee and the Oireachtas could take up in terms of holding those bodies to account on their failure to report.

Finally, we must also anticipate the role of the protected disclosures office and this goes to a question raised by Senator Higgins. We have to be realistic about how much can be achieved by this office in the early period. It will take time to be established and properly resourced but potentially, it should be playing the role that Senator Higgins talked about in terms of identifying patterns so that we can proactively and positively identify where in the system there are particular problems and target those areas for proactive action. That is what we would like to get to but without the political will and resources, it will take time to get to that point.

Ms Orla Keane

Senator Higgins raised a number of queries. My colleague, Mr. Clarke, dealt with some of them very eloquently, but there are two points to which I would like to respond. The first relates to data. It is a concern to everybody here that we do not have any data, given that the Act dates from 2014. In response to one of the other questions, very simply, head 26 could be amended to increase the information that needs to be reported back. If there was also some sort of reporting obligation on all private bodies, of plus and fewer than 50 employees, then very quickly the new office could create data. It could also be data that is available to the public when they click onto an entity's website. The first thing to do is put the onus on individual organisation to disclose more of the information and one of those things could be, if it has not progressed a protected disclosure, the reasons it did not do so.

The second issue the Senator raised was a lack of communication. In a previous life, I advised review teams in the context of investigations in the HSE and other organisations. One of the things I always said to them at the outset was that they should keep open a line of communication with the family, patient or individual who raised the issue being investigated. While as lawyers, there may be issues at times that they cannot disclose, that does not mean that they cannot continue to communicate. I told them that they should set out timeframes for when they will communicate with the person, when they think certain things will be done and addressed and if they do not meet those deadlines, they should send a short letter to explain why. That is the minimum level of respect required and it is a matter of respect for the people making protected disclosures. It is crucial that this would appear in any code of practice that is issued. I would expect that as a minimum any public organisation that is dealing with a person who has made a protected disclosure would communicate with them regularly. It may not be obliged or even be in a position to tell the person anything but it could provide progress reports. People like to be told, even if what they are being told is that the report is not complete. They like to be told that it is not complete because there is a need to speak to another witness or because more documentation has been received, for example. People like to be kept in the loop and it is a matter of respect to do so. It is incumbent on all in the public sector to uphold the right to respect.

We are obliged to conclude this part of the proceedings by 2.30 p.m. I thank all of the witnesses for attending. Our engagement has been very informative and helpful.

Sitting suspended at 2.30 p.m. and resumed in private session at 3 p.m.
The joint committee adjourned at 3.15 p.m. until 1.30 p.m. on Wednesday, 6 October 2021.