Prevention of Corruption (Amendment) Bill 2008: Report and Final Stages

Before commencing I remind Members that a Senator may speak only once on Report Stage, except the proposer of the amendment, who may reply to the discussion on the amendment. On Report Stage each amendment must be seconded. Amendment No. 1 arises from Committee proceedings and amendment No. 2 is related; the amendments may be discussed together, by agreement of the House. Is that agreed? Agreed.

I move amendment No. 1:

In page 5, line 21, after "opinion" to insert "or suspicion".

We had a full debate on these amendments on Committee Stage and I do not propose to go back over all of it. We have a different Minister of State in the House — he is welcome — and I should mention that the aim of these two amendments is to widen the protection to whistleblowers and encourage potential whistleblowers to make disclosures in the public interest in good faith. Currently the Minister has included just the word "opinion", and whistleblowers would be protected against liability where they inform or disclose an opinion that an offence has been or is being committed.

I am grateful to the Minister for Justice and Law Reform because he accepted two other amendments on Committee Stage which will also significantly widen the protection for whistleblowers. That will cover an offence which may have been or may be being committed, which is a great improvement on the language in the original Bill. Opinion should not be left as bare opinion because that places the bar too high for the whistleblower, and it would require that a whistleblower would form an opinion. A potential whistleblower may have something which he or she regards as no more than a mere suspicion but if it is genuine and made in good faith, we believe the person should be protected from liability where there is disclosure. There is also the provision that such people will not be protected where they make a disclosure knowing it to be false, misleading, frivolous, vexatious or reckless in that regard. There is already a protection against any misleading or frivolous allegations.

It seems that "opinion" is setting the bar too high and it is not the same as "suspicion". We had a long debate earlier about the meaning of the two words and I am grateful to Senator Regan for his support for the amendment. Senator Regan and I are right in arguing that "opinion" is not the same as "suspicion", as an opinion is more than a suspicion. We agree that an opinion includes a suspicion and may be formed on the basis of a suspicion but it requires more than a suspicion to form an opinion. This may sound like semantics but we want to ensure that those who believe they should make a disclosure in the public interest in good faith are not discouraged from doing so because they believe that what they have is no more than a suspicion and they do not have enough to have a full opinion.

Inserting "opinion or suspicion" would create an atmosphere and context that is more encouraging to potential whistleblowers. We have already had a full debate on the value of whistleblowing and the enormous importance of the deed in a range of areas from institutional sexual abuse to banking and medical malpractice to corruption in the planning process. I will not go back over that ground but the Minister for Justice and Law Reform indicated earlier that he would consider the argument made by Senator Regan and me before coming back to us with a view on whether "opinion" could be broadened to "opinion or suspicion". I hope the Minister of State has good news for us and I would be very grateful if he considered accepting these two amendments, which strengthen the protection for whistleblowers afforded by section 4.

I second the amendment. I made my arguments earlier and it may be a question of the period of reflection which the Minister has had that determines if he is minded to accept the amendments at this stage.

I wish I was the bearer of good news. The Minister gave a commitment to reflect and consult the Attorney General. I apologise to the House as the Minister could not be here but on his behalf I thank Senators for their contribution to the debate on this amendment on Committee Stage earlier today. It was an interesting and useful discussion which contributed greatly to clarifying some matters.

The Minister admitted there is a certain difficult balance to be reached in encouraging whistleblowers in good faith including, as Senator Bacik mentioned, those who are young and possibly vulnerable. The Minister appreciates that for those people in particular it takes a great deal of courage to come forward to act as whistleblowers. For that reason the Minister, Deputy Dermot Ahern, accepted on Committee Stage the amendments which made it clear the protections under section 8A encompass offences which may have been or may be being committed.

With regard to amendments Nos. 1 and 2, the Minister promised this morning to give further consideration, as mentioned by Senators Bacik and Regan, to include the words "or suspicion" that an offence is being committed. This would amend the current term, which provides protection in respect of those communicating their "opinion" that an offence under the Corruption Act has taken place.

Senators will be aware that the Minister considered these amendments previously in the Dáil and did not accept them on the basis that the extended wording would broaden the existing meaning of the provision. The Minister reverted to the Attorney General on the matter and the query over lunch resulted in a mini-conference on the issue. The advice received was that "opinion" encompasses suspicion and to include "or suspicion" could cast doubt on the meaning of both terms as it becomes necessary to differentiate between them. This could result in it being difficult to decide when the protections are to apply. In light of the advice the Minister is of the view that we cannot accept the amendments.

The Minister accepted the Senator's amendment on Committee Stage making it clear that the whistleblower may report an opinion that an offence may have been or may be being committed. The Minister has taken the advice of the Attorney General and is sticking to the original wording.

I am grateful to the Minister of State for giving a full response. I am also glad the Minister has consulted further and impressed that a mini-conference with the Attorney General was held at lunchtime. I still contend, however, that opinion is not the same as suspicion because while an opinion may encompass suspicion, it amounts to more than a suspicion. The requirement to have more than a mere suspicion may have an off-putting effect on potential whistleblowers. The use of the words "opinion" and "suspicion" would not create confusion. The Bill contains examples of the use of several words with slightly different meanings — for example, the words "false", "misleading", "frivolous" and "vexatious" — to convey a more nuanced meaning. While I am pleased to learn that the Minister has consulted, as promised, and appreciate his decision to do so, I propose to press the amendment.

Amendment put.
The Seanad divided: Tá, 18; Níl, 28.

  • Bacik, Ivana.
  • Bradford, Paul.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Cannon, Ciaran.
  • Coffey, Paudie.
  • Coghlan, Paul.
  • Cummins, Maurice.
  • Donohoe, Paschal.
  • Hannigan, Dominic.
  • Healy Eames, Fidelma.
  • McFadden, Nicky.
  • Mullen, Rónán.
  • O’Reilly, Joe.
  • Phelan, John Paul.
  • Regan, Eugene.
  • Ryan, Brendan.
  • White, Alex.

Níl

  • Boyle, Dan.
  • Brady, Martin.
  • Butler, Larry.
  • Callely, Ivor.
  • Carroll, James.
  • Carty, John.
  • Cassidy, Donie.
  • Corrigan, Maria.
  • Daly, Mark.
  • Dearey, Mark.
  • Ellis, John.
  • Feeney, Geraldine.
  • Glynn, Camillus.
  • Hanafin, John.
  • Keaveney, Cecilia.
  • Leyden, Terry.
  • MacSharry, Marc.
  • McDonald, Lisa.
  • Mooney, Paschal.
  • Ó Brolcháin, Niall.
  • Ó Murchú, Labhrás.
  • O’Brien, Francis.
  • O’Donovan, Denis.
  • O’Malley, Fiona.
  • O’Sullivan, Ned.
  • Ormonde, Ann.
  • Walsh, Jim.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Ivana Bacik and Eugene Regan; Níl, Senators Niall Ó Brolcháin and Diarmuid Wilson.
Amendment declared lost.

I move amendment No. 2:

In page 6, line 9, after "opinion" to insert "or suspicion".

I second the amendment.

Amendment put and declared lost.

I move amendment No. 3:

In page 14, line 12, after "contravened" to insert the following:

", or in any action in damages of the kind specified in section 8A(1)".

Section 3(7) of the Schedule provides that: "In proceedings under this Schedule before a rights commissioner or the Labour Court in relation to a complaint that section 8A(5) has been contravened, it shall be presumed, until the contrary is proved, that the employee concerned acted reasonably and in good faith in forming the opinion and making the communication concerned." That section 8A(5) provides that: "An employer shall not penalise or threaten penalisation against any employee or cause or permit any other person to penalise or threaten penalisation against an employee ... for ... having [among other things] formed an opinion of the kind referred to in subsection(1) and communicated it". It is only in the case that the person formed the opinion and communicated it knowing it to be false, misleading, frivolous or vexatious, or was reckless as to that, that an employer may penalise or threaten penalisation.

Subsection (7) of the Schedule referred to by the Minister simply tracks the normal employment law position. For example, in the case of unfair dismissals legislation, where it is established that a person has been dismissed, the dismissal is presumed to be unfair. In employment law the presumption operates to the benefit of the employee. In a sense, this subsection seeks to achieve that in so far as section 8A(5) is concerned. Where an employee makes a complaint that he or she has been penalised for allegedly making or engaging in a false, misleading or vexatious act of whistleblowing, the presumption lies in his or her favour. The onus is on the employer to prove the employee had not acted reasonably and in good faith. The effect of my amendment would be to seek to extend in an explicit fashion the same protection to an employee where he or she was the defendant in an action in damages brought, for example, by an employer in regard to an allegedly false, misleading, frivolous or vexatious act of whistleblowing.

In normal tort matters the onus or burden of proof is on the plaintiff or person bringing the case. To that extent one could say the plaintiff would have to do the proving in any case and the employee or former employee would enjoy that presumption to the extent that the burden of proof would be on the plaintiff. It is worth making more explicit the presumption that the employee concerned was acting reasonably and in good faith. That presumption should also operate in the kind of proceedings specified within section 8A(1), namely, proceedings in damages in respect of a communication or an act of whistleblowing, the substance of which the defendant allegedly knew to be false, misleading, frivolous or vexatious, or was reckless as to all that. It would strengthen the psychological impact of this Bill in favour of whistleblowers were it to be made explicit where an employee is concerned. There are other people who might be the subject or target of proceedings under section 8A(1), but where it relates to an employee, it would be consistent to have this made explicit and the employee would be presumed to have acted reasonably and in good faith until the contrary was proven.

The question has been asked whether this is the appropriate place to extend such protection because subsection (7) relates to the Schedule and to proceedings under the Schedule of an employment nature before a rights commissioner or the Labour Court in regard to a complaint of victimisation or penalisation. I believe the amendment I have drafted is sufficiently stand-alone to allow it to relate to proceedings taken under section 8A(1).

I second the amendment.

I apologise to Senator Mullen and other Senators for the unavailability of the Minister, Deputy Dermot Ahern. While I appreciate the points made by Senator Mullen, section 8A(1) makes it clear that a person who wishes to sue a whistleblower will not be able to hold the whistleblower liable in damages until he or she can prove to the court that the whistleblower communicated his or her opinion knowing, or being reckless as to whether, it was false, misleading, frivolous or vexatious, or that he or she knowingly furnished false or misleading information in this regard. I am of the view that the existing protection for whistleblowers against civil action provides the right balance between encouraging whistleblowers to make reports while at the same time avoiding reckless or malicious reporting which might negate the constitutionally guaranteed right everyone has to their good name. I am, therefore, not in a position to accept the amendment.

I thank the Minister of State for his response. I am not in a position to put the issue any further. I wish he would accept the amendment but I must accept his response.

Amendment put and declared lost.
Bill reported without amendment and received for final consideration.
Question proposed: "That the Bill do now pass."

I thank the Minister of State, Deputy Moloney, and the Minister, Deputy Dermot Ahern, for giving time to this important Bill, in which we are essentially ensuring we are in compliance with our international obligations. It is regularising a situation which has been amiss for some time.

I add my voice to that of Senator Regan in thanking the Minister of State, Deputy Moloney, the Minister, Deputy Dermot Ahern, and his officials for their work on the Bill. We supported the Bill in the Dáil and in this House. As Senator Regan said, it effectively implements and fulfils our international obligations. I am grateful to the Minister for accepting two of my amendments on Committee Stage. Those amendments to section 4 will significantly enhance the protection for whistleblowers in the Bill and I look forward to seeing the Bill, as amended, pass back through the Dáil. I welcome the strengthening of anti-corruption law that the Bill represents. We look forward also to the day when we have a fully codified anti-corruption law in this country.

I add my thanks to the Minister of State and his officials. In particular, I did not get the opportunity to place on record my appreciation for all the Minister, Deputy Dermot Ahern, has done in service to the State. On a personal basis, I am sorry, as we are of about the same vintage, that he is no longer going forward for election. As Minister for Justice and Law Reform, he has been a tremendous and very fair Minister, which was indicated today by his very open acceptance of two Labour Party amendments, for which Senator Bacik praised him. He is one of the Ministers I am sorry to see going. He will be a huge loss not alone to his party but to public life.

I welcome the progress of the Bill and look forward to seeing it enacted. While recognising the intent behind it is to meet our international commitments, we are, however, only scratching at the surface of what is required. I will not reiterate at length what I said earlier, namely, there is the possibility and ought to be an acknowledgement that there are general principles which apply to the protection of whistleblowers, whether in the context of the reporting of corruption or other kinds of wrongdoing or mismanagement.

What we should have before us is not the minimalist legislation this Bill represents but something more substantial that takes account of the weaknesses that have emerged in our society and culture around wrongdoing and our general failure as a population on occasion to take wrongdoing seriously and to take the necessary steps to ensure it stops. We have a journey to go in terms of creating the kind of culture where whistleblowers acting in good faith can do right by themselves, the organisations for which they are working and their society. I look forward to a more open approach on that issue and to the bringing of legislation before these Houses that will go much further than this legislation.

I thank Senators for their participation in the debate. I commend the Bill to the House.

Question put and agreed to.

When is it proposed to sit again?

Ar 10.30 maidin amárach.