Prevention of Corruption (Amendment) Bill 2008: Committee Stage (Resumed)

SECTION 4
Debate resumed on amendment No. 1:
In page 5, line 21, after "opinion" to insert "or suspicion".
— (Senator Ivana Bacik).

Given the circumstances, I withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments Nos. 2 and 4 are related and may be discussed together, by agreement. Is that agreed? Agreed.

I move amendment No. 2:

In page 5, line 23, to delete "has been or is being" and substitute "may have been or may be being".

Amendments Nos. 2 and 4 relate to a similar concern in respect of the whistleblower protection in section 4. Again, we felt the onus is being placed, under the Minister's wording, on the whistleblower to be clear that he or she had formed an opinion that an offence under the Prevention of Corruption Act has been or is being committed. Using the Minister's wording, the onus is placed on the whistleblower to form an opinion that an offence has been or is being committed. In our view, that is too heavy an onus on a potential whistleblower. It seems as if it requires the whistleblower to know what sort of offences are envisaged under the Prevention of Corruption Act before he or she would report any opinion to anyone in authority about his or her view.

Our amendment would give greater protection to whistleblowers and create a more encouraging climate for potential whistleblowers. Instead of stating the whistleblower must have formed the opinion that an offence has been or is being committed, it would be somewhat more nuanced and would state that an offence "may have been or may be being" committed.

We cannot presume that every potential whistleblower, including, as Senators Norris and Regan said, very young people who may be very vulnerable and easily intimidated, would know the law on corruption offences — in fact, we cannot presume anyone knows what the Prevention of Corruption Act states in terms of offences. Therefore, it would be a more appropriate approach to state they must have formed an opinion or suspicion in good faith that an offence "may have been or may be being" committed. This does not change the substance of the section but it creates a little more space for a whistleblower to form an opinion in good faith and to be clear he or she will be protected if he or she reports or discloses that suspicion to somebody in authority.

Amendment No. 4 refers to subsection (3), where "a person has committed or is committing an offence". The amendment seeks to introduce the term "may have committed or may be" committing an offence. To put it in plain language, if a potential whistleblower thinks somebody may be committing an offence of corruption, the person can report that in good faith. It does not require that the person believes an offence of corruption has been or is being committed. It is a nuanced amendment, which we believe creates a more welcoming and encouraging climate for potential whistleblowers, whom we want to encourage to make disclosure in good faith of suspicions and opinions about corruption.

I support the amendment, which strengthens the protection of whistleblowers. As Senator Bacik said, it is a nuanced view. One could say that having an opinion that "it" has been committed does not require "it" to have been committed. At the same time, this will offer reassurance to people who have a suspicion or an opinion that something may have gone wrong, where the person is not in a position to state objective facts with clarity but believes something sinister is or may be occurring.

As we have got to a situation where there will be time for reflection, I urge the Minister to take the amendment back for reconsideration rather than rejecting it. It is all of a piece with the earlier amendment, as Senator Bacik argued very effectively. This would be a practical way of dealing with this important matter, if it is reserved for further discussion.

I agree with these amendments, which are on the same lines as the previous amendments we have discussed. The manner in which the section is framed is too onerous on the whistleblower and the amendments are well grounded.

This amendment is closely related to the previous amendment proposed. It might be of use to think of this in terms of a situation where a person has second-hand rather than first-hand knowledge. Are we discussing the facilitation of potential whistleblowers who do not have a direct handle on the evidence of wrongdoing but who are, say, approached by a person they trust within an organisation who tells them something has happened, and who then feel an obligation to report what they heard? Such evidence might be regarded as hearsay in the view of the courts but would and should, in the whistleblower's view, facilitate an investigation into what the person has heard. Is that useful in terms of considering the distinction between what is contained in the legislation and what Senator Bacik has proposed?

I am minded to accept the amendments, although some of the documents before me would suggest they are not necessary. As I said, opinion encompasses belief and suspicion; it does not connote certainty. Therefore, there is no need to change "may" to "may have been or may be being". The whistleblower is not required to prove that corruption has been or is being committed. He or she is not required to be certain. He or she is clearly protected when communicating an opinion, which includes suspicion, that corruption has been or is being committed. The only requirement is that the whistleblower avoids knowingly or recklessly being false, misleading, frivolous or vexatious. It is really a balance between, on the one hand, encouraging whistleblowers and, on the other hand, protecting people against whom an allegation has been made.

I am inclined to accept the amendments today. There is a time constraint because we want to get the Bill passed and, if I accept the amendments, we have to go back to the Dáil. We want the Bill passed by 14 December because there is an OECD deadline. I will accept the amendments, and on Report Stage we will have to find time to go back to the Dáil. They do make sense.

Bravo. Well done to the Minister. That is brilliant.

Senator Norris has put it very well. I am very grateful to the Minister for being so open to accepting the amendments and for indicating he will do so. They will strengthen and improve the quality of section 4 of the Bill and will encourage a greater culture of disclosure in good faith by whistleblowers. That is an important change of mind and I am grateful to the Minister for accepting the amendments, which will send a very welcome signal to potential whistleblowers that they will be given adequate and appropriate protection where they disclose in good faith their belief or opinion that an offence may have been or may be being committed. I thank the Minister.

As I have accepted the amendments, for logistical reasons we would have to have Report Stage today.

I am happy with that.

Are we talking about these amendments and Senator Bacik's previous amendments?

We will have to deal with them all today due to logistical reasons in regard to bringing the Bill back into the Dáil.

As the person who fought that battle on the issue, if Senator Bacik, whose amendment this is, is satisfied, I will certainly accept it, as I am sure she will.

The House will decide that at the end of Committee Stage. We cannot decide on it now. That is the procedure.

Amendment agreed to.

Amendments Nos. 3 and 6 are related and will be discussed together.

I move amendment No. 3:

In page 5, lines 26 to 29, to delete all words from and including "misleading," in line 26 down to and including "vexatious," in line 29.

In many ways, what we have been discussing recently and what I am proposing concern different paths up the mountain. We want to achieve a culture of transparency in which people will not feel there will be a chilling effect in reporting their belief there has been corruption. The same motivation underlies Senator Bacik's amendments and mine.

We must recall the critical role played by whistleblowers in fighting corruption. PricewaterhouseCoopers estimates that some 40% of all cases of corruption and fraud are exposed by whistleblowers. Individuals such as Eugene McErlean at AIB and Sherron Watkins at Enron have in the course of their work reported concerns or evidence of wrongdoing or harm to others. It is important to remember they are motivated to do the right thing in the common good. That is what we are talking about in this debate. It is to fulfil international obligations that the Government has brought forward this legislation. It is important to remember that the role of whistleblowers has been recognised by the United Nations, the Council of Europe and the OECD. It is because these organisations place whistleblowing at the heart of a national strategy to prevent the abuse of power that we have this Bill. We need to be very careful, therefore, about what we include in and leave out of it.

I have not addressed the sectoral approach taken by the Government to whistleblowing, as addressed by other Senators. The approach is folly. We will be left with very diverse and confusing standards of protection for whistleblowers and significant gaps in legislation. Irrespective of whether one is talking about child abuse, corruption, fraud or mismanagement, it should be possible to identify certain principles that apply to all of these areas. It should be possible to identify whether allegations are made in good faith and establish a mechanism for people to report to an authority beyond their employer because of fear or possible intimidation by that employer or employees. One can pretend that the drafting of general legislation would cause problems, but I do not believe it would. The same principles generally apply to whistleblowing across the board. I refer to what whistleblowers need in order to do what they must do and the wider need of society to prevent the making of many vexatious, irresponsible, worrisome or unfounded claims. I am concerned the Bill will not protect individuals such as Eugene McErlean or a single whistleblower in our banks reporting fraud, overcharging or reckless dealing. It is remarkable, given what we have discussed incessantly in the past few months, that these issues remained unaddressed in this legislation. That is very noticeable and odd, to say the least.

The Bill will not hold unscrupulous employers to account for covering up wrongdoing of many shades other than what is prescribed in it. When one considers the penalty imposed on individuals such as Mr. Noel Wardick, a former director at the Irish Red Cross who drew attention to serious issues of mismanagement and a failure to discharge funds properly, one realises it is remarkable that we are not taking the opportunity this legislation presents to establish more general principles pertaining to whistleblowing. It is vital that we do so, bearing in mind that the Irish Red Cross almost has a statutory function and significant national responsibilities at certain times and in certain ways. It is a classic example of a case in which somebody feels the need to report beyond his or her employer and the Garda in order that the best interest of his or her organisation and the public would be served.

The amendments propose to delete the words "misleading", "frivolous" and "vexatious" such that the section would provide that a person would not be liable for damages, save where, in communicating his or her opinion to the appropriate authority, he or she knows his or her opinion to be false. Let me reassure the Minister and others in case there is any doubt. It is not that I have any sympathy for someone who knows what he or she is saying is in any way misleading, frivolous or vexatious. One must consider the two amendments together. We are not just talking about the person escaping liability in the courts but also about the circumstances in which a person might escape penalisation by his or her employer. I am worried that the legislation, as drafted, will lead to a chilling effect on potential whistleblowers. They may consider it may be said what they are doing is misleading or vexatious. I am uncomfortable with the subjectivity associated with these concepts. The test should be one of falsity. Transparency International has advised that it is highly unusual and worrying for a provision such as this to be inserted in such legislation. It believes the Bill, as presented, will silence potential whistleblowers.

The Bill provides that damages may be sought against an employee if what he or she reports is deemed to be reckless in the sense of being false, misleading, frivolous or vexatious. This type of provision is not included in any other whistleblower legislation, in Ireland or overseas. One must ask why anyone would come forward if he or she believed he or she could be penalised by his or her employer. That is the point that causes me particular concern. I refer to the raising of a concern that one's employer deems to be reckless, vexatious, frivolous or misleading. Even where an employee makes a genuine mistake in reporting, would it not be easy to brand the report as frivolous or reckless? Such mistakes are possible and may even be inevitable, but a whistleblower should not be punished according to such a subjective and unfair standard.

What constitutes reckless behaviour? Would a person mistakenly reporting a concern of corruption to a non-designated body such as the Standards in Public Office Commission or the Office of the Comptroller and Auditor General be deemed to be reckless? The standard runs contrary to the common law principle of good faith, which implies a person believes the substance of the report to be true and does not act maliciously. Would that not be a better standard to apply? The good faith principle is at the heart of the United Kingdom's whistleblower legislation and has been tested in British courts for the past decade. The new test of recklessness and frivolity will serve only to dissuade those who have genuine concerns from reporting for fear of being branded as reckless. That is my concern. It is not that I want to provide comfort for those who in any way know or believe what they are saying is frivolous, vexatious or misleading.

One must be careful about the overall context and import of this legislation. My fear is that it could have a chilling effect on those who genuinely have a matter to report. Why not simply require that what they report must not be false? If one considers the imposition of criminal liability, one will note it just applies to circumstances in which one knows one's statement is false. If that is the threshold at which the law intervenes, should it not be the threshold applied across the board when offering protection from civil litigation and penalisation by an employer?

I listened with interest to what Senator Mullen had to say. I believed initially these amendments were absurd, dangerous and self-contradictory and the Senator has not persuaded me that they are not. He has completely undermined his own case, particularly in the context of the words he used. Earlier I urged the Minister to reflect on this matter and was successful in getting him to do so. I urge the Senator to reflect on it also.

There might be a tiny margin for arguing about whether something is reckless. However, it is not possible to state anyone who makes an allegation and knows it to be vexatious, misleading or frivolous should be protected. I have always stood up for principles and whistleblowers. I have even blown the odd whistle myself. However, it would be outrageous to protect someone who knows that the allegations he or she is making are vexatious and who makes them merely to upset the person who is the subject of them. That is arrant nonsense and I am 100% opposed to it.

It is wrong to invoke the names of Mr. Eugene McErlean who worked for AIB and Mr. Noel Wardick, a former director of the Irish Red Cross. I have raised issues on behalf of these individuals and it is seriously damaging to their reputations to suggest they require such protection. The allegations made by the two gentlemen to whom I refer made were certainly not misleading, frivolous or vexatious.

That is not the point I was making.

If the legislation has a chilling effect in preventing people from knowingly making vexatious, misleading or frivolous allegations, so much the better. That is what legislation should do.

There is a minor argument which can be made in respect of the second amendment, but I urge Senator Mullen to withdraw both of them.

Transparency International has pointed out——

I do not care about that matter. Mentioning the name of an organisation does not mean anything. The Senator has not sustained his argument.

I took the trouble to——-

There should be no interaction between Members.

I would be extremely surprised if Transparency International wanted to incite people and protect those who knowingly make misleading, frivolous or vexatious allegations.

The Senator is intent on disagreeing with the amendments and did not listen to what I said.

The two Members should address their remarks through the Chair. There should be no interaction between them. Let us deal with our business in a proper way. Has Senator Norris concluded?

Yes, I believe I have made the point. The language is clear. Protection is not afforded to people who make allegations which they know to be misleading, vexatious or frivolous for corrupt reasons. The import of Senator Mullen's amendments would be to open a blackmailer's charter. If Transparency International stands over the amendments tabled by the Senator, it has made a mistake. I am certain the Senator has tabled the amendments in good faith. However, I do not understand the logic behind them and he certainly has not persuaded me by his arguments.

Transparency International wants another test to be applied.

The Senator will have the right to reply when everyone else has contributed.

I appreciate what Senator Mullen is seeking to do with these amendments which is similar to what I was trying to do, namely, ensure adequate protection for whistleblowers who disclose in good faith. However, I am not sure that removing the relevant words and making the test one of knowing something to be false and excluding the test for recklessness would be the best way to proceed. The amendment the Minister accepted will enhance the protection for whistleblowers to a sufficient degree and ensure a balance is struck. While I appreciate the aim of the amendments, the balance to which I refer must be established. It is important a message is sent to potential whistleblowers that they will be encouraged to disclose information in good faith. We must also ensure we do not——

Would the Senator afford protection to persons who knowingly make vexatious allegations?

That is my point.

I agree that there is a difficulty in respect of recklessness. In our criminal code it is clear a different form ofmens rea applies. On the other hand, we are referring to civil liability, particularly in the context of section 4(1)(a). A balance has been struck.

I wish to clarify two points. In the context of what Senator Bacik stated, I am not proposing that we remove the test relating to recklessness. I am, however, proposing that the test relating to knowledge and recklessness be confined to the issue of falsity.

Senator Norris's contribution was both entertaining and dramatic. However, he fails to comprehend the import of what I am saying about removing the words "misleading", "frivolous" and "vexatious". I am not suggesting we should protect those who knowingly make misleading, frivolous or vexatious claims or reports. I am concerned instead with establishing a context in which people will not feel unduly burdened, particularly in the context of their potentially being penalised by their employers, when it comes to making such claims or reports. An employer could, for example, decide, on a subjective basis, that what a whistleblower did was misleading. I suggest we adhere to the principle established under the criminal law, namely, that a person who does something which he or she knows to be false will get into trouble. That would pretty much cover matters. By including the words to which I refer, it adds in some way to the chilling effect.

The psychological context in which whistleblowing occurs provides the key to understanding what I am saying. With respect, I believe Senator Norris did not pay adequate attention to my arguments in this regard. I am proposing that we replace what is contained in the Bill with something along the lines of the British model. In such circumstances, the legislation would refer to making claims in good faith and not being malicious. The Senator did not appear to comprehend that aspect of my argument either. I am not seeking to establish a blackmailer's charter or give comfort to those who make misleading, frivolous or vexatious claims. I thought that should have been very clear to the Senator. However, I believe he chose heat over light — or perhaps drama over substance — in the context of the approach he chose to take to my amendments.

I reiterate that the test of falsity should be maintained. If a person knows that what he or she is saying is false or if he or she is reckless as to whether something is false, that should be sufficient to prevent irresponsible or dishonest whistleblowing. We should opt for a test of good faith and presume an absence of malice.

While I accept that Senator Mullen tabled thee amendments in good faith, the net effect of what he is suggesting — which he readily admitted — would be that the test would be restricted to one of falsity. In deleting the words to which the amendments refer, he would, in effect, be providing protection for persons who knowingly or recklessly make communications or offer opinions that are misleading, frivolous or vexatious. I could not accept this.

When the Bill was originally published, the test of whether a whistleblower would receive protection was simply based on whether he or she had acted reasonably and in good faith in forming an opinion and communicating it to the appropriate person. I proposed an amendment which was accepted on Committee Stage in the Dáil in respect of this test. As a result, the Bill now provides that a whistleblower will be protected unless, when communicating an opinion, he or she does so knowing or being reckless as to whether that opinion is false, misleading or frivolous or if he or she furnishes information in this regard that he or she knows to be false or misleading.

I also tabled an amendment on Report Stage in the Dáil in respect of allegations of whistleblowing which are false. As a result, the test as to whether a person is guilty of an offence rests on whether he or she actually knew an allegation was false as opposed to whether he or she ought to have known it was untrue. I am satisfied, therefore, that the section, as it now stands, strikes the correct balance.

Senator Mullen referred to the treatment, from a civil point of view, of employees. I refer him to section 6 which inserts a new Schedule 1 in the principal Act and which states:

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.

Again, protection is provided for employees who must obviously make complaints in good faith. While Senator Norris may have been overly colourful in what he said, I agree with his opinion on this matter. Deleting the words in question would have an adverse effect in that it would provide protection for someone who knowingly or recklessly makes vexatious, frivolous or misleading allegations.

I thank the Minister for his response, which I note is also in good faith. We have a civil disagreement here about the overall impact this Bill would have. The House is in danger of forgetting the psychological context in which whistleblowing must take place and the environment we need to create. We are coming from behind here. Let us remember what there has been in this country on issues such as sex abuse and fraud and mismanagement in State institutions and in institutions such as banks. That is key to understanding.

It is helpful what the Minister said about the presumption issue, that the employee will be presumed to have acted in good faith. That is certainly useful and I thank the Minister for drawing my attention to it.

I speak as someone who was subjected to certain frivolous and vexatious claims about myself that had to be adjudicated on by a committee of this House over the summer and I do not take lightly the irresponsibility of those who make misleading, frivolous or vexatious claims. I have given the reason I believe these words, while in one sense logical, may be unhelpful in their overall context to the cause of encouraging whistleblowers to do their work.

If the Minister is so sure it is necessary to include the words, "misleading, frivolous or vexatious" in order that a person who either knows or is reckless as to whether what he or she has stated or reported is misleading, frivolous or vexatious will be liable to damages, why does he not also make them liable to prosecution? Why does the Bill state in section 4(3): "A person who makes a communication under subsection (1), which the person knows to be false", and if it is so serious, why does the Minister not also include that the person knew it to be misleading, frivolous or vexatious? Why the inconsistency? I would welcome the Minister's reason in that regard.

The Bill states that an employer shall not penalise or threaten penalisation against an employee except where he or she knew the allegation to be false. Will the presumption that the employee acted in good faith be sufficient to prevent an employer from forming a subjective opinion that the employee knew the allegation to be, or was reckless as to whether it was, misleading, frivolous or vexatious? Is there sufficient protection in that section the Minister quoted, given that this area is one which allows for some degree of subjectivity in the formation of judgment? I would be especially grateful for an answer as to why there is a distinction between the safeguard against civil liability and the safeguard against criminal liability.

There is no conflict in this regard. The start of the section states that a person who, apart from this section, would be so liable shall not be liable in damages in respect of a communication unless he or she makes it knowing it to be false, misleading, etc. or is reckless as to whether it is such. That, ultimately, is an offence. It is very narrowly drawn because it is a criminal offence. It must be. There is no conflict between civil and criminal liability in that respect.

I would not necessarily accept Senator Mullen's point that we are coming from behind. In a recent Transparency International report, Ireland scored highly in terms of corruption perception index. The report points out that Ireland's score, on its most recent corruption perception index published at the end of October, remained at eight out of ten and that Ireland sits in 14th place on the table of 178 countries. This indicates low levels of corruption and places Ireland in the same band as Sweden, Canada, the Netherlands, Australia, Switzerland, Norway, Iceland and Luxembourg, and ahead of countries in the next band — Austria, Germany, the UK and the United States. I would not accept we are coming from behind in this regard.

On the distinction between the civil and criminal standard, is the Minister stating that the words "misleading, frivolous or vexatious" do not add anything? Would he object, for example, if subsection (3) were to provide that a person who makes a communication under subsection (1), which he or she knows to be false, misleading, frivolous or vexatious, to the effect that another has committed or is committing an offence under the Prevention of Corruption Acts, shall be guilty of an offence? Would the Minister have a problem if those other words were also in the criminal provision in subsection (3)?

This must be narrowly focused on falsity. It could well be difficult to prove something is frivolous in a criminal context and that is why that subsection is focused specifically on falsity whereas the other includes a wider gambit of situations. As I stated regarding a criminal offence, it would apply to the situation where the person knows it to be false.

Does that mean the Minister is giving a lower level of immunity to the whistleblower? If the Minister is saying the reason he is not including it in the criminal part is that it would be more difficult to prove what a person said was misleading, frivolous or vexatious, does it not follow that the Minister is exposing such a person to something that would be easier to prove in a civil context and that he is putting such a person at a greater disadvantage? Should we target whistleblowers only for that which they could be prosecuted under the criminal law? If the Minister exposes them to civil liability, is he exposing them to accusations that are easier to prove and is he, therefore, lessening the potential protection for them?

I do not accept that. Proving misleading, frivolous or vexatious in a criminal context is much more difficult than proving a falsehood, and that is why there is that distinction. It is correct that there is a distinction but it is because of the requirement under the criminal code to prove an offence beyond all reasonable doubt, which may be difficult in the context of a person making a misleading, frivolous or vexatious accusation. At the end of the day, this comes down to the words "knowing" and "reckless". While there might be a different standard in some of these words, ultimately a person must pay the price for making an allegation and knowing it to be false or being reckless in making it.

Amendment, by leave, withdrawn.

I move amendment No. 4:

In page 5, line 41, to delete "has committed or is" and substitute "may have committed or may be".

The Minister indicated he will accept the amendment along with amendment No. 2.

Is the amendment being accepted?

Amendment agreed to.
Amendments Nos. 5 and 6 not moved.

I move amendment No. 7:

In page 8, between lines 23 and 24, to insert the following:

"(b) an official of the Standards in Public Office Commission,

(c) an official of the An Garda Síochána Ombudsman Commission,

(d) an official of the An Garda Síochána Inspectorate,

(e) an official of the Office of the Director of Corporate Enforcement,

(f) an official of the Central Bank and Financial Services Authority of Ireland,

(g) an official of the office of the Comptroller and Auditor General,

(h) an official of the Competition Authority,

(i) a solicitor registered with the Law Society of Ireland,

(j) a chair of the relevant Oireachtas Committee on Members’ Interests,”.

Very simply, in many ways much of what I stated earlier also applies to this; therefore, this will be a short contribution. Having regard to the cases I cited earlier, I mentioned the case of Noel Wardick, the former director of the Irish Red Cross, who found that in order to serve his organisation and the public interest what he had to report was something to be reported beyond his employers and the Garda Síochána. Limiting the definition of the appropriate person to receive such a report to only the employer or the Garda Síochána fails to meet the requirement of whistleblowing.

It is worth drawing attention to the role of other agencies in receiving reports of corruption. The Comptroller and Auditor General springs to mind as do the Standards in Public Office Commission and the Office of the Director of Corporate Enforcement. Best practice in whistleblowing worldwide shows the importance of allowing people to report to more than their employer or the police. It would be unfortunate if this legislation were to create confusion over whether the Standards in Public Office Commission could receive calls relating to corruption in public office or whether the Comptroller and Auditor General could receive reports relating to the abuse of public resources. It would also help in promoting whistleblowing if a disclosure to a solicitor was protected, as happens in the UK.

On this basis, I ask the Minister to consider widening the scope of eligible organisations. In my amendment I list the Standards in Public Office Commission, the Garda Síochána Ombudsman Commission, the Garda Síochána Inspectorate, the Office of the Director of Corporate Enforcement, the Central Bank of Ireland, the Office of the Comptroller and Auditor General, the Competition Authority, a solicitor registered with the Law Society of Ireland and the Chairman of the relevant Oireachtas committee on Members' interests. I would be grateful to hear the Minister's views on this.

The Bill provides that the appropriate person is a member of the Garda Síochána, an employer or an employer's nominee and, if the whistleblower is abroad, Irish diplomats and foreign law enforcement officers. Given that the whistleblower provisions of the Bill relate to specific criminal offences and protection in the workplace we believe this is the appropriate provision. To expand the list of appropriate persons to include bodies which have no role in the prosecution of corruption offences would, in effect, only insert an additional mediator between the whistleblower and the Garda who ultimately would have to investigate the criminal offence. Similarly, to interpose an additional person between the whistleblower and his or her employer would also add little value. It is the employer who is in a position to protect the whistleblower against workplace penalisation and if he or she fails to do so the whistleblower has the ability to go to a rights commissioner or the Labour Court under the Bill.

A member of the public who suspects a Garda is engaged in corruption has recourse to the Garda Ombudsman Commission. The Garda Síochána Act 2005 allows for suspected misbehaviour, essentially any disciplinary matter or criminal offence, by a member of the Garda Síochána to be reported to the Ombudsman Commission. Where a member or civilian staff member of the Garda Síochána has concerns regarding suspected corruption on the part of one of his or her colleagues he or she has recourse to the confidential recipients under the Garda Síochána (Confidential Reporting of Corruption or Malpractice) Regulations 2007.

The reason for providing for reports to diplomatic or consular officers is that the corruption offences are on an extraterritorial basis and jurisdiction relating to corruption occurring outside the State has been broadened considerably in the Bill. Trans-border corruption is one of the aspects of the Bill. Where previously extraterritorial jurisdiction was limited to cases involving Irish officeholders and officials, under the Bill jurisdiction will be extended to cover virtually all persons having a connection with the State including companies and corporate bodies. In this way, the Bill gives further effect to the OECD convention on bribery of foreign public officials in international business transactions.

Is the amendment being pressed?

I will press this amendment because given the psychological context we are trying to create I do not believe it is sufficient an argument to state this would have the effect of interposing certain organisations. To some extent, it is in the eye of the beholder as to who ought to be the receiver of the information. I can think of many situations where a whistleblower might wish to report to a third party prior to going to the Garda Síochána or would like to be assisted in some way by a third party in going to the Garda. A whistleblower may also wish to put the matter in the hands of a responsible body as he or she sees it. I do not see why we should not include such responsible bodies and make them eligible to receive reports of corruption. In situations where whistleblowers may be under considerable psychological pressure, widening the options for whistleblowers can do only good.

I cannot put it any clearer. The basis upon which we are trying to restrict it to the Garda Síochána, or the employer for civil issues, is because we are trying not to have too many mediators in the process which could complicate it and perhaps lead to information not being passed on appropriately because of mistakes. It would be far better to leave the list of appropriate people as it is in the Bill. I ask the Senator to withdraw his amendment as I do not see how it could add to it. In fact, it could complicate issues.

Amendment put.

Will the Senators claiming a division please rise?

Senators Rónán Mullen, David Norris, Joe O'Toole and Shane Ross rose.

As fewer than five Members have risen I declare the amendment defeated. In accordance with Standing Orders the names of the Senators who stood will be recorded in the Journal of Proceedings of the Seanad.

Amendment declared lost.
Section 4, as amended, agreed to.
Sections 5 and 6 agreed to.
Title agreed to.
Bill reported with amendments.

When is it proposed to take Report Stage?

Not now. It was agreed there would be a break to allow for amendments.

We will take Report Stage at 7 p.m.

Is it agreed that we will take Report Stage at 7 p.m.?

I understand the break was agreed to enable the Minister to revisit an amendment that I had proposed.

We have no more amendments to make.

I am withdrawing my amendment.

I indicated that it was highly unlikely I would be able to accept it.

The proceedings are agreed.

On a point of order, I sought time for the Minister to consider my first amendment. As he subsequently accepted my amendments Nos. 2 and 4, I am happy to withdraw entirely amendments Nos. 1 and 5. As a result, I do not think we require to take Report Stage at 7 p.m.

Amendments Nos. 1 and 5 stand withdrawn. When is it proposed to take Report Stage?

Can we take it now?

On a point of order, I wish to table an amendment on Report Stage in regard to a matter that has been previously discussed.

The Senator is entitled to do so.

I propose that Report Stage be taken at 7 p.m.

Is that agreed? Agreed.

Report Stage ordered for Wednesday, 1 December 2010.
Sitting suspended at 1.40 p.m. and resumed at 2.30 p.m.