I welcome the Minister, Deputy Michael McGrath, back to the House. Committee Stage of this Bill is to be taken at 1.15 p.m. and to adjourn at 4.45 p.m., if not previously concluded.
Protected Disclosures (Amendment) Bill 2022: Committee Stage
SECTION 1
Amendments Nos. 1, 2, 42, 63, 73 and 77 are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 1:
In page 5, between lines 20 and 21, to insert the following:
“(3) Notwithstanding subsection (2), the provisions of this Act, upon commencement, shall apply to protected disclosures made under the Principal Act or any other relevant enactment prior to this enactment.”.
These amendments attempt to make sure that the provisions of this Bill will apply to protected disclosures made before the Bill is enacted. This is the top recommendation that came from pre-legislative scrutiny by the Joint Committee on Finance, Public Expenditure and Reform, and Taoiseach. It is also a key concern for whistleblowers when a process is under way that has affected and impacted them in an ongoing way. Many of them have never received anything in terms of payments as regards making a complaint. I believe those people should be entitled to any support possible in the legislation.
I am delighted to be here for Committee Stage of this important Bill. I will speak to this group of amendments. This is a very important area of the Bill and a very important set of issues have been raised that I am anxious to address insofar as I can. These amendments concern the retrospective application of the protections of the legislation to workers who have reported wrongdoing prior to the enactment of this Bill. This is the main item outstanding from the recommendations I have accepted from the pre-legislative scrutiny report.
The first amendment inserts a new section, section 32, into the principal Act providing that the transitional provisions set out in Schedule 7 shall apply. The second amendment inserts a new Schedule, Schedule 7, into the principal Act, which sets out how the retrospective provisions shall operate under a number of scenarios. These amendments fulfil the commitments I gave in the Dáil to provide protections retrospectively to the greatest extent possible. There is a hard limit on how far retrospective provision in legislation can be applied. Any retrospective application that goes further, particularly where proceedings in the Workplace Relations Commission, WRC, or courts have been initiated or completed, runs into constitutional difficulties. Article 15.5.1° of the Constitution states: "The Oireachtas shall not declare acts to be infringements of the law which were not so at the date of their commission."
The point at which this limit is reached varies depending on: who is reporting; whether they reported before or after enactment of this Bill; whether they suffered retaliation before or after enactment of this Bill; and when proceedings were initiated or completed under the Act. The amendments make different provisions depending on whether the worker was already protected by the 2014 Act or is to be added to the scope of the legislation by this Bill. I will refer to persons already protected by the Act as “old workers”. These include employees, contractors, agency workers and trainees. I will refer to persons who are to be added to the scope of the Act as “new workers”. These include shareholders, board members, volunteers and job applicants.
Paragraphs 2 and 3 of Schedule 7 apply to old workers who reported before enactment but suffered retaliation after enactment. Given that old workers are already protected by the 2014 Act, the additional benefits these provisions confer are reversal of the burden of proof during proceedings at the Workplace Relations Commission and the courts, and access to interim relief at the Circuit Court against penalisation. Paragraphs 4 and 5 apply to new workers who reported before enactment but suffered retaliation after enactment. Since new workers had no entitlement to protection prior to this amendment being made, this cohort will receive the greatest benefit from these provisions as follows: protection from penalisation at the WRC, including reversal of the burden of proof; the right to sue for damages in court, again including the reversal of the burden of proof during proceedings; and access to interim relief at the Circuit Court for dismissal and other forms of penalisation.
Paragraphs 6 and 7 apply to old workers who reported and also suffered retaliation before enactment, provided the worker has not initiated proceedings at the WRC or the courts at the time of enactment. Given that old workers are already protected by the 2014 Act, the additional benefit this confers on them is they will be entitled to the reversal of the burden of proof during proceedings. It is possible to provide the protections of paragraphs 6 and 7 to old workers because the 2014 Act already prohibited any act of penalisation against such workers. There is, therefore, no conflict with Article 15.5.1° of the Constitution. Unfortunately, it is not possible to extend these protections to new workers because penalisation of this cohort was not prohibited under the 2014 Act at the time the penalisation occurred. Any retrospective provisions would therefore be in conflict with Article 15.5.1° and, I am advised, would be unconstitutional.
Paragraph 8 provides that the protections against civil and criminal liability in sections 14 and 15 of the principal Act shall apply to new workers who have reported prior to enactment, provided that at the time of enactment no proceedings have been initiated against them. Old workers are already protected by sections 14 and 15, so no retrospective provision is required for them here. Paragraph 9 provides that the obligation to protect the identities of reporting persons and persons concerned under sections 16 and 16A, respectively, and the data access restrictions under section 16B, shall apply to all reports made by both old and new workers prior to enactment.
I do not propose to accept amendments Nos. 1, 2, 42 and 63. As I said, there is a hard limit, unfortunately, on how far retrospective provision in legislation can be applied in the context of Article 15.5.1°. The amendments I am bringing today fulfil the commitments I gave in the Dáil to provide protections retrospectively to the greatest extent possible. This is something to which the Attorney General has given detailed consideration over a period. The amendments being proposed by Senators Higgins and Flynn provide for a complete application of all the protections of the Bill to any protected disclosures made in the past. I am advised by the Attorney General that this would be in conflict with Article 15.5.1° of the Constitution, as I said. Unfortunately, therefore, I cannot accept these amendments.
I have examined this issue in great detail. It was raised during the Dáil debate at considerable length. I asked the Attorney General to stretch the limit, insofar as possible, to retrospective application. What we have arrived at represents very significant progress. The key test is, if somebody has initiated a case before the WRC or the courts, the new protections in the Act cannot constitutionally apply to him or her. In other cases, however, the protections can be applied retrospectively. That is the very limit of what we can do within the parameters of the Constitution.
Amendment, by leave, withdrawn.
I move amendment No. 2:
In page 5, between lines 20 and 21, to insert the following:
“(3) Notwithstanding subsection (2), the provisions of this Act, upon commencement, shall apply to protected disclosures made under the Principal Act prior to this enactment.”.
Amendment, by leave, withdrawn.
Section 1 agreed to.
Sections 2 and 3 agreed to.
SECTION 4
Amendments Nos. 3 and 6 are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 3:
In page 6, between lines 19 and 20, to insert the following:
“(fa) an undertaking can also be defined as a local authority, for the purposes of this Act,”.
I will speak to amendments Nos. 3 and 6. First, I welcome the Minister and his officials to the House. I thank them for this legislation, which I broadly welcome. I think it is very positive. I have tabled amendments Nos. 3 and 6 mainly as a scoping exercise and to have some brief discussion on the matter because there seems to be a conflict in advice being issued. I have engaged with the Association of Irish Local Government, AILG, and the Local Authority Members Association, LAMA, the representative bodies of city and county councillors. From time to time, members have raised concerns in respect of how they are covered by protected disclosures. There is some suggestion that councillors are not directly employed by the councils but are elected members, as we well know. At times, there are issues of concern. They may fall within the scope of a protected disclosure. We have heard the terrible stories of people - not necessarily city and county councillors - who have attempted to get to the bottom of an issue that they are not happy about or highlight where they think wrongdoing may have occurred. We have heard how these people have become victims in that process. It is a terrible shame for the people who try to do the right thing by the State and bring an issue to attention that requires further investigation.
The Minister is aware that the city and county councillors work at the coalface of our communities. They are active. They are the eyes and ears of many of our citizens, and many issues come to their attention and arrive on their desks. I ask the Minister to clarify whether the two amendments are necessary. Does the scope of the legislation protect or include councillors? That is the assurance that I am seeking. I do not know what legal advice the Minister has sought or what engagement he has had with the Attorney General on these issues. I am asking for the Minister's reassurance that the members of the AILG and LAMA, our city and county councillors, are protected by and fall within the scope of this legislation. If the Minister can confirm that, I will be happy to withdraw my amendment. I have tabled it to prompt discussion on the issue, get the clarification I am seeking and have the Minister put something on the record of the House that will give the elected members of the city and county councils some comfort.
I support Senator Boyhan's request on this issue. It is a very practical measure and I hope the Minister will see fit to include it in the legislation.
I thank Senators Boyhan and Davitt for raising the issue. The Protected Disclosures Act 2014 protects workers from penalisation if they report concerns about wrongdoing or potential wrongdoing in the workplace. The term "worker" is defined in section 3 of the Act as being an individual who is or was an employee, a contractor, an agency worker, a work experience student pursuant to a training course or a trainee. The Protected Disclosures (Amendment) Bill before us provides, under section 4, for a significant expansion of the definition of worker to include individuals who are shareholders, members of the administrative management or supervisory body of an undertaking, volunteers, as well as individuals who acquire information on a relevant wrongdoing during a recruitment process or any other pre-contractual negotiation. This expansion of the definition of worker means that local authority elected members will be protected under the legislation, once enacted. Specifically, this is by virtue of paragraph (f). It covers an individual who is or was a member of the administrative, management or supervisory body of an undertaking and includes non-executive members. The Bill provides a broad definition of "worker" in line with the provisions of the EU whistleblowing directive. It is not appropriate to narrow this definition by listing specific entities. Therefore, I do not propose to accept the amendments but I am happy to confirm, on the record of the House, that local authority members are in scope and will benefit from the protections of the legislation, once enacted.
Some of this has come about from engagement and conversation with Transparency International Ireland, which I am sure the Minister is well aware of, and how it observes and manages these issues. As I said, a number of councillors who engaged in the protected disclosure process found it difficult. I accept the Minister's assurances, which he has placed on the record, that city and county councillors will be fully covered when this legislation is enacted. That is my understanding. Is that correct?
That is correct.
Amendment, by leave, withdrawn.
Amendments No. 4 and 5 are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 4:
In page 7, between lines 10 and 11, to insert the following:
“(ha) bringing vexatious proceedings against the worker,”.
This amendment would mean that bringing vexatious proceedings intended to penalise a worker would be included in the definition of penalisation under the Bill, as per recommendation No. 9 of the pre-legislative scrutiny report of the Joint Oireachtas Committee on Finance, Public Expenditure and Reform, and Taoiseach. Transparency International Ireland has also recommended that this measure be included in the legislation. Through this amendment, the bringing of vexatious proceedings against a worker to keep his or her quiet in the context of a protected disclosure process would be recognised in law as penalisation.
Amendment No. 5 seeks to clarify that psychiatric or medical referrals without reasonable cause should be recognised as a penalisation where the requirements for having reasonable cause are not met. Basically, we are trying to protect whistleblowers.
I thank Senator Flynn for raising these issues. On the proposal to include bringing vexatious proceedings against a worker in the definition of penalisation, it is already a penalty under section 24 of the Bill. It does not need to be specifically included in the definition of penalisation.
My officials gave detailed consideration to the pre-legislative recommendation on medical and psychiatric referrals. They consulted the Attorney General who highlighted that the proposed amendment is not the language of the EU whistleblowing directive. The Attorney General advises that there is a risk that such an amendment could be interpreted as narrowing the scope of application of this form of penalisation. I know that is not the intention behind the amendment but the view of the Attorney General is that it could actually narrow the scope of it. That would be incompatible with the directive. I should point out that the issue is not whether the referral is founded or unfounded; it is whether the referral is a form of penalisation for having made a report. The burden of proof to show that the referral was based on justified grounds will now fall on the employer, as required by the directive. The employer must show that the referral was not prompted by the making of the report but was made for another reason. That is a very significant shift that is provided for in the Bill. Therefore, I do not propose to accept the amendments. We have adequately addressed the issues in the Bill.
Is the Senator pressing the amendment?
I will withdraw the amendment and seek to reintroduce it on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 5:
In page 7, line 26, after “referrals” to insert “without reasonable cause”.
Amendment, by leave, withdrawn.
I move amendment No. 6:
In page 8, between lines 17 and 18, to insert the following:
“(ha) an individual who is an elected City and/or County Councillor,”.
Amendment, by leave, withdrawn.
Section 4 agreed to.
Section 5 agreed to.
SECTION 6
Government amendment No. 7:
In page 11, between lines 35 and 36, to insert the following:
“(a) in subsection (1), by the substitution of “subsection (6)” for “subsections (6) and (7A)”,”.
Section 3 outlines repeals, including the repeal of section 5(7A). This is a technical amendment to remove a reference to subsection 7A of section 5 of the Principal Act.
Section 5(7A) was inserted into the Principal Act by the European Union (Protection of Trade Secrets) Regulations 2018, which provided for the transposition of the trade secrets directive. This directive required that a person who made a protected disclosure could only disclose information deemed to be trade secret if he or she acted for the purpose of protecting the public interest. Article 21.7 of the whistleblowing directive clarifies the legal position vis-à-vis the trade secrets directive, on the one hand, and the protection of whistleblowers, on the other hand, and makes clear that a person who makes a disclosure of a trade secret, in accordance with the rules of the whistleblowing directive, should not be subject to this public interest test. Accordingly, this provision can and should be repealed.
Amendment agreed to.
Amendment No. 8 in the names of Senators Gavan, Ó Donnghaile, Warfield, Boylan, Higgins and Flynn has been ruled out of order as it involves a potential charge on the Revenue.
Amendment No. 8 not moved.
Amendments Nos. 9 and 10 are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 9:
In page 12, between lines 22 and 23, to insert the following:
“(d) by the insertion of the following subsection after subsection (5):
“(5B) A matter concerning interpersonal grievances exclusively affecting the reporting person, as described in subsection (5A), shall constitute a relevant wrongdoing where such interpersonal grievances arise out of the reporting person having made a protected disclosure or where the interpersonal grievance has arisen due to penalisation of a reporting person.”,”.
The Minister has our notes in front of him so I will not hold up proceedings. I withdraw the amendment and reserve the right to resubmit an amendment on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 10:
In page 12, between lines 22 and 23, to insert the following:
“(d) by the insertion of the following subsection after subsection (5):
“(5C) For the avoidance of doubt, an interpersonal grievance shall not preclude a person from making a protected disclosure under any relevant section of this Act.”,”.
Amendment, by leave, withdrawn.
Section 6, as amended, agreed to.
SECTION 7
Amendments Nos. 11 to 13, inclusive, are related. Amendments Nos. 12 and 13 are logical alternatives to amendment No. 11. Amendments Nos. 11 to 13, inclusive, may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 11:
In page 12, to delete lines 27 to 32 and substitute the following:
“ “5A. (1) Without prejudice to the provisions of any other enactment relating to anonymous reporting of wrongdoing, a person who receives an anonymous report of wrongdoing, made in a manner specified under section 6, 7, 8, 9 or 10 shall be obliged to regard such a report as a protected disclosure described in section 5.”.
Amendment, by leave, withdrawn.
I move amendment No. 12:
In page 12, to delete lines 27 to 32 and substitute the following:
“ “5A. (1) Without prejudice to the provisions of any other enactment, a person who receives an anonymous report made in the manner specified in section 6 shall accept such an anonymous report and if he or she considers it appropriate to do so, followup on a matter which is the subject of that anonymous report.”.
Is the Senator pressing the amendment?
Yes.
Amendment put:
The Committee divided: Tá, 5; Níl, 24.
Tá
- Flynn, Eileen.
- Higgins, Alice-Mary.
- Ó Donnghaile, Niall.
- Sherlock, Marie.
- Warfield, Fintan.
Níl
- Ahearn, Garret.
- Buttimer, Jerry.
- Byrne, Malcolm.
- Byrne, Maria.
- Carrigy, Micheál.
- Casey, Pat.
- Cassells, Shane.
- Clifford-Lee, Lorraine.
- Conway, Martin.
- Crowe, Ollie.
- Cummins, John.
- Currie, Emer.
- Daly, Paul.
- Davitt, Aidan.
- Doherty, Regina.
- Dolan, Aisling.
- Fitzpatrick, Mary.
- Gallagher, Robbie.
- Hackett, Pippa.
- Horkan, Gerry.
- Kyne, Seán.
- Murphy, Eugene.
- Seery Kearney, Mary.
- Wilson, Diarmuid.
Tellers: Tá, Senators Eileen Flynn and Alice-Mary Higgins; Níl, Senators Seán Kyne and Robbie Gallagher.
Amendment declared lost.
I move amendment No. 13:
In page 12, to delete lines 27 to 32.
Amendment, by leave, withdrawn.
Section 7 agreed to.
SECTION 8
I move amendment No. 14:
In page 13, line 11, after “procedures’)” to insert “within six months of the commencement of this section”.
I will ask Senator Higgins to speak to the amendment.
This is a simple amendment placing a time obligation on companies with more than 50 employees within which they must establish internal reporting channels. This is a time-specific amendment and we reserve the right to bring further amendments on Report Stage on the question of timely restitution or timely response. Many whistleblowers have expressed concern that there are times specified for the commencement of an investigation, but not for the period of time within which resolution or a response is to be given or in which redress should be provided.
People who have made a whistleblowing complaint often wait a very long time, as the Minister has heard. I am glad he gave some acknowledgement in his earlier amendment. Some people who made a complaint many years ago are still awaiting the information on what happened and the result of that action. For those who have experienced penalisation or retribution, the consequences have continued year after year and the process of getting restitution payments has been very long. This is a very specific amendment relating to companies. I reserve the right to table further amendments on some of the timings in the Bill on Report Stage.
I thank Senators Flynn and Higgins for this amendment. We had some discussion earlier on the retrospective application of the Bill and I am sure we will revert to that on Report Stage.
This amendment provides that employers with 50 or more employees shall establish, maintain and operate reporting channels and procedures within six months of the commencement of this section. The core provisions of the Bill, including the requirement for employers to establish and maintain internal reporting channels of the Bill, are intended to be commenced as soon as possible following enactment.
This amendment is in direct conflict with the derogation delaying commencement of this section for employers with 50 or more employees but fewer than 250 employees until 17 December 2023. Ireland has chosen to adopt the derogation from the EU whistleblowing directive and the date of 17 December 2023 is set in Article 26.2 of that directive. Therefore, I cannot accept this amendment.
We should be seeking to have the most ambitious interpretation possible. It is a pity for us to seek derogation in any area. I know there has already been discussion about concerns with other articles of the directive and there will be further discussion later. We will press the amendment. The Minister has given his reasons but for those waiting for very long time and for the kind of culture shift that we want to see happen, time is really important. We hope that even on the back of this legislation happening, a strong signal for early action is sent to companies. It is always better to keep momentum going. A longer timeframe may unfortunately lead to the issue falling off the table and many companies failing to deliver on these obligations. While the heat is on, let us keep it on.
I acknowledge the points the Senator has made. However, the derogation on the issue has been sought, and the time set out in the amendment is in conflict with that. Therefore, I cannot accept it. I understand the point the Senator has made. We are anxious to put the Bill into operation as quickly as possible. Detailed guidance will be issued and there will be an information campaign. I know we will discuss more of those issues later in the debate. As a result of the derogation on that aspect, I cannot accept the amendment.
I understand the Minister’s position. I hope the information campaign will contribute to that momentum.
Amendment put and declared lost.
Amendments Nos. 15 to 17, inclusive, are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 15:
In page 13, line 14, to delete “or”.
Amendment No. 15 is a technical amendment to ensure the subsequent amendments are grammatically correct.
Amendment No. 16 seeks to bring more accountability. The 50-employee threshold for the creation of internal reporting channels would not apply. A company would not have an exemption from the reporting channels just because it had 30 or 40 employees if it is performing a public contract with a value of more than €1 million. The Minister will be aware that I have taken a keen interest in public procurement and have had constructive engagement with some of his colleagues on how we might strengthen, improve and reform equality in public procurement. The crucial principle is that the public duty in respect of equality and human rights, for example, transfers on to procurement.
Extraordinary financial issues have been highlighted by whistleblowers in the past. With my Joint Committee on Finance, Public Expenditure and Reform, and Taoiseach hat on, I understand there may be an implication for the State with a contract worth €1 million or more. That the company performing that contract has 20, 30 or 40 employees should not be a reason not to require a reporting channel in respect of whistleblowing. In terms of due diligence but also in terms of how much public money is spent, it is really important that the companies getting large contracts have internal reporting channels in respect of whistleblowing so that we can be confident they have mechanisms to identify issues early.
I urge the Minister to consider that practical amendment. None of us wants to be constantly fixing issues after the fact and reviewing what went wrong. This means there would be a flagging system for concerns built in for those who are getting contracts above a threshold. I have specified contracts of €1 million; it probably should apply to any company with a State contract. I have sought to place it at a reasonably high threshold and close to the thresholds under the EU procurement directives.
Amendment No. 17 would ensure that the 50-employee threshold for creating internal reporting channels would not apply to a company with an annual turnover of more than €1 million. In the first case I have specified companies with a public contract worth more than €1 million. I know that €1 million might not seem like much in the scale of some companies but it is a lot compared with most small businesses. It is important that they would be required to have accountability. A company with that scale of business should have the capacity to put in place appropriate reporting channels. We know of companies in Ireland with very few employees but which have been associated with bad practices.
On the international level, the Minister will be aware of the debates that are happening at the moment around due diligence legislation in the EU. There is a concern that only 1% of companies in the EU came under the due diligence legislation because of some of the thresholds involved. Companies which have been highlighted in respect of supply chain abuses include the Correjón coal mine in Colombia. It technically has a very small number of employees even though it is linked to substantial human rights abuses. It is important to highlight big issues that emerge. There is a capacity issue when we consider the effect on every corner store. However, a company with major money, and dealing in major money, should be able to include the due diligence of an internal reporting structure.
I note that during the debate around the Gender Pay Gap Information Act there was some discussion of the fact that size-based thresholds should not be the only measure to determine where scrutiny is needed.
I thank the Senator for raising the issue. If I set out our thinking, we can then have a discussion and exchange on these matters.
These three amendments propose to remove the 50-employee threshold for employers performing a public contract with a value of more than €1 million and employers that are companies with an annual turnover of over €1 million. This would mean that any employers in these categories would be obliged to establish formal internal reporting channels and procedures. I am not proposing to accept these amendments.
There was insufficient time since the amendments were received to fully explore how many employers would be captured by these amendments. However, given that the value of public contracts can be calculated in many instances over a four-year period, I expect that they would lead to a significant expansion of the requirement for formal reporting channels and procedures. Before I go into the precise reasons I will not accept the amendments, I want to make it clear that the obligation on some employers to have internal channels and procedures is an administrative requirement separate from the rights of workers to report wrongdoing to their employer.
Section 6(1) of the Protected Disclosures Act provides that a worker is protected if he or she reports a relevant wrongdoing to an employer. This applies irrespective of the size of the organisation for which the worker works and the Bill does not change this. Regardless of whether the employer has a formal reporting channel, all workers, public and private, remain entitled to all of the protections of the legislation.
Workers will also have access to supports such as the Transparency International Ireland speak-up helpline to help them to understand how to make a report. Implementing the requirements as regards internal reporting channels will create a compliance burden for industry. The European Commission’s impact assessment of the directive in 2018 estimated that the initial set-up costs for a typical small to medium enterprise would be €1,374 in the first year with an ongoing annual cost of €1,054 in subsequent years. That was based on estimates made in 2017. With inflation, the true cost is now considerably higher.
Implementing the requirements is not a simple matter of printing down a generic policy document. The directive and the Bill are clear that internal channels must be designed, established and operated in a secure manner that protects the confidentiality of the reporting person and the information they have reported. In practical terms, this will require firms, for example, to appoint and train dedicated staff to operate these channels. It will also require the deployment of dedicated, separate and secure channels such as mailboxes, encrypted emails or web forms, and dedicated phone lines and voice messaging systems. Firms will be required to ensure the designated persons have sufficient resourcing and independence to conduct investigations, maintain confidentiality and access to senior management to effect necessary action in response to reports of wrongdoing. All of these will impose costs on organisations.
A wider imposition of the requirement to have internal channels would be disproportionate, particularly given the impact of the pandemic and Brexit on the SME sector in Ireland as well as the pressures they are facing from high inflation.
The point is that there are real costs involved in placing this obligation on small businesses. It is important to underline the point that it does not mean a protected disclosure cannot be made. There remains an absolute right to make a protected disclosure even if an employee is working for a small employer and the obligations to follow through and so on remain in place.
Because of the issues the Senator has raised, and she has made some very fair points, the Bill provides at section 8 by way of the insertion of a new section 6(6) into the 2014 Act for a regulation-making power to lower or remove the threshold for certain firms or categories of firms, subject to a risk assessment and public consultation. The Senator has made the point that there may well be situations where an employer has a very small number of employees but is strategically important and potentially very high impact. There is the capacity and facility within the Bill as proposed for them to be brought within the reach of the legislation in respect of the need to have internal reporting channels.
The Minister has eloquently made the case for dedicated structures. The fact that one can make a report is not the same as being able to make it through that kind of administrative channel. The Minister referred to the guarantee of confidentiality, encrypted channels and designated email addresses. All of those things are technical. They have a reasonable cost for what they do. It is not enough for people to know they can make a disclosure when all that is available is the capacity for them to email their boss or their boss's boss and hope nobody else sees it. It is different when a proper channel is available. The Minister described quite well the kind of small but specific things that go into a proper administrative channel, which is why I think we should be pushing for more companies to have it and why the simple right to make a disclosure is not the same as having a good mechanism to do so.
I still believe we should stretch where this applies. I acknowledge that the Minister has pointed to the fact that there are regulation-making powers under section 6. There are small areas with implications for human rights and due diligence. The Minister will be aware of the review of ethics in public life and some of the work that has been done in the Joint Committee on Finance, Public Expenditure and Reform, and Taoiseach. We have been looking at areas of particular vulnerability, including lobbying and other areas. This is something that is considered. Transparency International Ireland has highlighted that certain sectors have particular sensitivity and vulnerability. However, I also believe that one of the things that should be looked at through those regulations is an obligation, or at least minimum weighted criteria, around the presence of such structures relating to public procurement and public contracts. Perhaps that is a space that could be explored.
I am going to withdraw the amendments but I might engage a little more with the Minister's office between now and Report Stage around how he envisages those regulation-making powers might be used to address the concerns I have highlighted. I will, with the leave of the House, withdraw my amendments but reserve the right to come back to these issues on Report Stage having engaged with the Department.
I thank the Senator for her constructive approach on this issue. I do not think there is a fundamental difference of opinion between us on this point. I am concerned about imposing additional costs on very small businesses. The Senator mentioned the example of a local corner shop or the local plumber. There are costs involved in requiring these processes to be established.
The Senator also mentioned particular sectors that have significant impacts. It is also provided for within the Bill that the threshold does not apply in certain named areas. Those exceptions include, for example, financial services, aviation safety and oil and gas safety. Of course, there has never been a threshold in the public sector either. It would certainly be our intention-----
Public procurement is almost a loophole in that regard.
I take the Senator's point. It is our intention that the threshold will not be applied across the public service. We would be more than happy to tease out with the Senator in a technical way how we envisage the regulation-making power will work and how it might go some way, at least, to addressing the concerns the Senator has raised.
Amendment, by leave, withdrawn.
I move amendment No. 16:
In page 13, between lines 14 and 15, to insert the following:
“(aa) is performing a public contract with a value of more than €1million, or”.
Amendment, by leave, withdrawn.
I move amendment No. 17:
In page 13, between lines 14 and 15, to insert the following:
“(aa) is a company with an annual turnover of over €1 million, or”.
Amendment, by leave, withdrawn.
I move amendment No. 18:
In page 13, line 20, to delete “17 December 2023” and substitute “30 June 2023”.
This is another amendment that relates to timings. It seeks to change the date by which companies with 250 employees must establish, maintain and operate internal reporting channels and procedures. It proposes a shift in the timeline from 17 December 2023 to 30 June 2023. It just shifts the time because we have waited a very long time for this. Something that is 18 months away feels too long and 12 months is more than adequate. These are companies with 250 or more employees, so they are quite large. They can do this in a year. We have seen what companies can do in just a few months under circumstances such as Covid. It should be possible to establish the kinds of practical steps the Minister has outlined within a 12-month period. It is more than sufficient.
The issue here is that the date is set in Article 26.2 of the EU whistleblowing directive. For countries that avail of the derogation, the date of 17 December 2023 is enshrined in that. It is the case we have at this point signalled to employers that fall within this category of between 50 and 250 employees that this is the intended date for this provision to come into effect. Given we have availed of that derogation, we do not have discretion to vary the date in the directive of 17 December 2023. It is a reasonable lead-in period. Some lead-in period is needed. It can be argued employers could do it in less time but some of these are still quite small businesses and they are facing a challenging time. It is a significant change but a necessary one. We very much support putting in these formal channels and imposing these obligations on employers. Giving them that lead-in period is appropriate.
While understand the constraint the derogation that was sought places on the Minister, in order to mark that this would be a better timeframe, I will press the amendment.
Amendment put and declared lost.
Amendment Nos. 19, 20 and 22 are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 19:
In page 14, line 37, to delete “250” and substitute “50”.
I believe there is a technical drafting error in the amendment, so I will withdraw it. I have to move it because the other amendments in the grouping are attached to it. Otherwise I probably would not move it.
Amendment No. 22 seeks to add a condition around the provision that employers with fewer than 250 employees may share resources in terms of the receipt of reports under this session. While I fully understand the desire to share resources, we do not want to get a kind of outsourcing of the reports whereby lots of companies move to a "problem go away" type of reporting structure. Everybody has been sent through one complaints structure to another to eventually land in a kind of box somewhere. We do not want dealing with reports and protected disclosures to become a problem-solving service that is provided for companies. Alternatively, we do not want to have smaller companies being permitted to say they are not able to do anything about it because they have people who do that and you need to talk to them. It then becomes a further piece of the labyrinth, which is exactly what we want and need to undo. We must also bear in mind that where protected disclosures have been made, it is not solely about individuals accessing their rights. These are matters of concern that are being highlighted in many cases with really significant impacts for society. It is important, therefore, that they are dealt with in a timely, transparent and trackable way.
My two amendments seek to add some conditions as I am a little concerned about what the sharing resources might look like. In the first amendment, I suggest they could be shared resources where it is a linked company or set of companies. Again, the accountability is there in that if it is with a linked company or there is a way of tracking the same parent company, for example, it will still be ultimately responsible if one of the companies under it may be sharing it. As such, the chain of accountability will not be lost into a chain of service provision. There could be an incentive for companies to provide instruction, which would allow other companies to avoid their obligations under the Bill.
Amendment No. 22 provides that where an employer shares resources and potentially materials around the receipt or investigation of a report with another company, as is provided for here, before such materials or resources are shared, there should be a data protection impact assessment in relation to the sharing of such resources. If a company receives a disclosure and then has another company deal with that report or disclosure, there are potentially important data protection impact concerns. This is especially so if we have a company receiving multiple reports from multiple other companies because then the question of firewalls and suitable practices arises. The amendment simply provides that there would be a data protection impact assessment where resources are shared in respect of the receipt and investigation of reports.
To make a general comment on GDPR, we know that with anything that has implications, a data protection impact assessment is appropriate.
I will set out the formal response and we can perhaps engage on it then. The amendments will limit the ability of employers to share resources for receiving reports and conducting any investigations needed as part of follow-up. The Bill currently provides that employers with fewer than 250 employees can share resources. These amendments would limit that flexibility to employers with fewer than 50 employees and where companies are linked. Furthermore, the amendments add an obligation to carry out a data protection impact assessment in relation to the sharing of such resources. The resource-sharing provisions in the Bill are in place to transpose Article 8.6 of the EU whistleblowing directive. The Senator is seeking to further define and limit how that would take place. The provisions reduce the administrative burden on employers. They allow for companies to share resources and build a centre of best practice for receiving and following up on reports received. On the Senator's requirement that this be limited to companies that are in some way linked, that would exclude the possibility of an employer using a third-party company that might specialise in providing this service. If there is not a link between the companies, they would not be allowed to use that service and that would limit their ability to put in place proper processes and procedures. The provisions reduce the administrative burden on employers, allow for companies to share resources, as I said, and to build a centre of best practice for receiving and following up on reports received.
The data protection impact assessment adds another criterion that is not necessary in our view as section 16 on the duty of confidentiality and section 18 on data protection apply to all channels and actions set out in the Bill. Therefore, we do not see a need to restate that obligation as it is one that is already provided for elsewhere in the Bill. Irrespective of the channel used, that obligation applies, including in a case where resources are shared. Article 8.6 states the resource-sharing option "... shall be without prejudice to the obligations imposed upon such entities by this Directive to maintain confidentiality, to give feedback, and to address the reported breach".
For those reasons. I do not propose to accept the amendments.
The Minister has described those who might be experienced in receiving the reports. The danger is that where this involves those who are experienced in receiving reports but whose clients are effectively other companies, there is a little bit of a power imbalance. If a company is engaging somebody because they have a particular expertise in dealing with the reports, the concern is that it would incentivise certain kinds of results coming out of those reports, if the Minister knows what I mean. It would be wrong for this to become any form of troubleshooting or perceived service provision.
The centre stage piece in any disclosure and report needs to be what is being disclosed - the subject matter and content of it - rather than a matter of how a company will manage it. The mechanisms we have discussed internally are important in that regard. I worry that we will end up with people who get very good at that process, for example, of assessing whether it is a substantive report and disclosure or whether it needs to be followed up. There will be people who get very good at filtering those out. That would be regressive. I know that is not in any way the intention of the Minister.
I am sorry to go to a bad case scenario but, unfortunately, we have to do so. In general, this is part of the long legacy of whistleblowing in Ireland, from which I hope we are moving forward. The Minister is aware, however, that if all the significant energy the State and various entities and private companies have put into making disclosures and concerns and issues that have been highlighted disappear had, instead, been redirected to addressing the problem, many areas of public life and private company life would be much better. That is why I need to highlight that concern.
I am not attached to these two particular ways in which I have tried to tackle it. I have tried to make sure we do not create that dynamic. I am not tied to these two ways of approaching it and I may come back on Report Stage with further thoughts on how we can avoid situations such as the one I described which, it is to be hoped, will not arise. All present can imagine how such a situation could arise, however.
Between now and Report Stage, my officials and I will reflect on the Senator’s remarks. I make the point that it is a provision of the directive that resource-sharing is provided for. That is an obligation within the directive, and for good reason. Although it is important to have these processes in place, we do not wish to impose an unnecessary administrative burden on employers and I do not think we should exclude the possibility that they might use the support and services of a third-party company.
The Senator raised several issues in respect of the group context. It is the case that where the group structure is used as such, feedback to the person who submits the protected disclosure, that is, the whistleblower, must be given at subsidiary level. It is important that direct relationship is maintained in the work-out and follow through of each protected disclosure that is made. We can revert to it again. We will reflect on what the Senator has said. We do have the limitation that the directive provides for resource sharing, so we have to provide for it in some way.
Neither of my amendments remove the existence of resource sharing but seek to add a few conditions and caveats in that regard. I will withdraw the amendments for now but come back to the issue on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 20:
In page 14, line 39, after “resources” to insert “with a linked company or companies”.
Amendment, by leave, withdrawn.
Amendments Nos. 21, 27 and 43 are related and may be discussed together by agreement. Is that agreed? Agreed.
Government amendment No. 21:
In page 15, line 3, after “6A(1)(e)” to insert “and (f)”.
This is a series of minor amendments to provide that the rules applying to employers in respect of sharing resources shall be without prejudice to their obligations to give further feedback if requested to do so by the reporting person, in accordance with section 6A(1)(f). Under the procedures, a prescribed person shall set out the type and content of any further feedback requested by the reporting person and the procedures of the protected disclosures commissioner shall set out the type and content of any further feedback requested by the reporting person.
Amendment agreed to.
I move amendment No. 22:
In page 15, between lines 3 and 4, to insert the following:
“(c) Where an employer shares resources in respect of the receipt and investigation of reports under this section, they shall, prior to sharing such resources, carry out a data protection impact assessment in relation to the sharing of such resources.”.
Amendment, by leave, withdrawn.
Amendments Nos. 23 to 26, inclusive, 44 to 46, inclusive, 67 and 68 are related and may be discussed together by agreement. Is that agreed? Agreed.
Government amendment No. 23:
In page 15, line 9, to delete “coming into operation” and substitute “commencement”.
This is a series of technical amendments to replace the phrase “coming into operation”, in all provisions in the Bill where it occurs, with the term “commencement”. This is to ensure the terminology used in the Bill is in line with the most up-to-date drafting conventions used by the Office of the Parliamentary Counsel. There is no change to the effect of any of these provisions. The Interpretation Act 2005 provides that “commencement”, when used in respect of an enactment, means the time at which the enactment comes into operation.
Amendment agreed to.
Government amendment No. 24:
In page 15, line 13, to delete “coming into operation” and substitute “commencement”.
Amendment agreed to.
Government amendment No. 25:
In page 15, lines 16 and 17, to delete “coming into operation” and substitute “commencement”.
Amendment agreed to.
Section 8, as amended, agreed to.
Sections 9 and 10 agreed to.
SECTION 11
Government amendment No. 26:
In page 19, line 3, to delete “coming into operation” and substitute “commencement”.
Amendment agreed to.
Government amendment No. 27:
In page 22, line 14, after “feedback” to insert “(including further feedback)”.
Amendment agreed to.
Section 11, as amended, agreed to.
NEW SECTION
Amendments Nos. 28 to 39, inclusive, are related. Amendments Nos. 29 to 39, inclusive, are physical alternatives to amendment No. 28. Amendments Nos. 28 to 39, inclusive, may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 28:
In page 23, between lines 25 and 26, to insert the following:
“Amendment of section 8 of Principal Act
12. Section 8 of the Principal Act is amended by—
(a) the deletion of “and” in paragraph (a), and
(b) the insertion of the following paragraphs after paragraph (b):
“(c) the making of a disclosure is in the public interest, or
(d) the worker reasonably believes that their own manager or the head of the public body concerned is complicit in the relevant wrongdoing concerned.”.”.
This relates to a substantial issue of significant concern. It relates to an issue we have discussed previously and will discuss later, that is, consideration of Article 25.2 in the context of the commitment that there should be no regressive steps in terms of protections for whistleblowers. Many persons - not solely whistleblowers but also experts in transparency, accountability and governance – have strong concerns that the changes under the Bill to section 8 of the principal Act will constitute a regressive step. There are concerns in respect of the fact that it will become more difficult for persons, both whistleblowers and civil society, to make a disclosure directly to a Minister. That has significant implications for those seeking to make a disclosure and in terms of public accountability.
Amendment No. 28 is probably the largest change option. The Minister will see that I have tabled a couple of substantial suggested amendments and I have also suggested a few changes. I fundamentally believe we should be going for a bigger change on this but I have tried to come up with a few smaller proposals that would ameliorate slightly some of the concerns. Amendment No. 28 would return to the original section 8. Under the new section 8, it is proposed that public servants will be required to report to their employer in most circumstances, removing the automatic right of public servants to make a public disclosure directly to the Minister. This could involve issues of significant local or national concern that should be allowed to be disclosed directly to a Minister.
We know that many of the whistleblowers who are motivated to make a disclosure do so out of public concern and for the public interest, at great personal cost. There should not be a wrong door in terms of those making this disclosure. This is not people applying for something or seeking to gain something; it is people who are bringing and offering something in public service for the public good. They should not face a situation in which they find themselves excluded from the provisions or protections of the legislation or discouraged from proceeding in highlighting an issue that may be of great public significance.
Transparency International Ireland has cited a number of concerns about the new section 8. The amendment would delete the new section 8, and return to the previous section 8, while adding two small elements from the new section 8 that I believe are progressive, one being the deletion of "and" in paragraph (a) and the insertion of the provisions after paragraph (b) to include categories where: "the making of the disclosure is in the public interest" or "the worker reasonably believes that their own manager or the head of the public body concerned is complicit in the relevant wrongdoing". The reference in the Bill is to "the head of the public body", and I will address the issue of the manager later. The point is that it keeps it as is, where a person has the right to make a complaint to the Minister, but specifically names the issue of public interest within the previous version of section 8.
Amendment No. 31 is a technical amendment that relates to the other amendments. Amendment No. 33 seeks to improve the provisions in the current Bill. At the moment, there is a provision whereby a worker may go directly to the Minister if he or she believes that the head of the public body he or she works for is complicit in the wrongdoing concerned. For many public servants, especially in very large public bodies with multiple branches and iterations, the head is often a very far distance from people, but what does act as a chilling effect is how people feel about making a disclosure to their own manager. This amendment would allow the same exception, whereby a worker who believes the head of the public body is complicit in any wrongdoing concerned. We must bear in mind the significant penalties that we have for people who make disclosures based on false information. People must be very careful, and they will be very nervous. They may not ever have met the head of the public body concerned. Many people will be in a situation where they believe their own manager or their manager's manager are complicit in wrongdoing and that in itself should be sufficient for a person not to have to take up an internal channel within a public body but to be able to go directly to a Minister. If a person does not have confidence in the manager closest to him or her to be someone who can be honestly and properly trusted in regard to an issue of wrongdoing, it is a lot to ask of him or her that he or she would assume that the managers above the person, who presumably promoted the person, are going to necessarily give them fair treatment. Again, that is often in light of a situation where they may never have met the head of the public body or the senior staff. In that context, the provision that refers to the head of the public body is too limited a power. It should be simply sufficient that if a person is concerned that his or her manager is complicit in a wrongdoing of public concern or if a person wants to highlight an issue as an act of public service, he or she should be able to contact the Minister about it.
For clarity, the new section 8 is section 12. Amendment No. 34 relates to the circumstances in which a worker can bring a report directly to the Minister. It should simply be sufficient that a worker did not feel confident to make a report under sections 6, 7 or 8 due to a reasonable fear of penalisation. Again, we must bear in mind that whistleblowers are not people that we are giving things to or who are asking for things. They are people who, through their own goodness, are bringing important information to light and highlighting an issue of public concern. There should be every mechanism to make it possible for them, rather than any sense of an obstacle. That should be the case, especially since we know, although I will not go into, the litany of penalisations that people have experienced. The very fact that we have provisions in this Bill on penalisation, even though they are inadequate, points to the fact that penalisation is a known factor. There is a reasonable fear of penalisation. It may simply be that a person saw other people getting fired and he or she did not know why. Whatever it might be, if a person has a reasonable fear of penalisation, that should be sufficient grounds for him or her to go directly to a Minister. These are workers, but they are not seeking restitution through HR on employee issues. They are acting as citizens and, as citizens, they should be able to go to the Minister who represents them and say they are highlighting this issue from their experience as workers. They should not have to navigate an internal channel if there is a reasonable fear of penalisation.
Amendment No. 35 is prompted by my belief that the language sets an excessively high bar. We could talk about a chilling effect in respect of the bar that is placed here. The public interest, straightforwardly in itself, should be enough of a ground for a person to go to a Minister, but currently the bar in that regard is so high and specifies that is only possible where the relevant wrongdoing may constitute "an imminent or manifest danger" to the public interest, such as where there is an emergency situation or a risk of irreversible damage. I do not know why we are raising the bar so incredibly high here, because that has a chilling effect. I urge the Minister to accept my two amendments in this regard. One would simply remove the phrase "imminent or manifest". It should be sufficient that there is a danger to the public interest. Ministers are not simply there to firefight the emergency. The point is that there is a danger to the public interest and a worker has identified it. What constitutes "imminent"? Is it a month, six months, a year or ten years? If there is a danger to the public interest, that should be enough. Ministers deal with the public interest all the time and most of the issues they deal with are not imminent and manifest; they are part of trying to do things better and to fix the country. On that basis, if there is something that could help, it should be sufficient if an issue is relevant to the public interest. It would be preferable to keep the phrase "danger to the public interest" because putting those extra adjectives in is excessive, similar to an emergency situation or irreversible damage. Are we just saying then that is okay if there is a problem and it is going to have a terrible consequence because we might be able to fix it later and that the Minister should not be told or that it should go through some other channel? Frankly, we have all spent too much time fixing problems. I do not know anybody of any party who likes fixing problems after the fact. "Irreversible damage" seems to me to be an extraordinarily high bar when in fact prevention is always better than cure.
I have two more amendments to address in this large grouping. Amendment No. 39 is intended to make sure that when the Minister or the head of a public body receives a protected disclosure, which is outside the remit of the Department or public body, he or she might consult with the protected disclosures commissioner and with the permission or consent of the reporting person, transfer the report to the relevant Minister or the head of the public body. This is intended to make sure that reports reach the right people and that whistleblowers are not lost in the system when their concerns are being addressed. Someone may go to a Minister because he or she is the Minister in his or her geographical location. They might go to a Minister because he or she is in Cork, Galway or Limerick and the Minister may want to transfer the matter to the line Minister or the public body. What is important is that the Minister would check with the person who has made the disclosure because there may also be reasons somebody has not gone to the line Minister. In terms of the public body in particular, I know multiple examples, but I will not cite them individually.
There have been situations in which persons have made a protected disclosure and the complaints they made have been directed right back to the desk of the person about whom they made the disclosure. In effect, decision-making power on what to do about a disclosure is being given to the person who is its subject. Sadly, there are a few instances in which we can point to that having happened. It is important that if people take a different channel, that is, going to a Minister, they do not find themselves in that situation. That is why communication with the person making the disclosure prior to the forwarding of that disclosure is appropriate.
I hope the Minister will engage with us on these proposals. The general concern is a wider one, which relates to Article 25(2) of the GDPR. These amendments provide specific measures to improve the section.
I welcome the Minister and thank him for his attention this afternoon. Senator Higgins has outlined a similar rationale for her amendments to that applying to our amendments Nos. 37 and 38. I will speak to them briefly in order that we can get to the Minister's response.
Amendment No. 37 seeks to guarantee that where a public sector employee makes a disclosure to the relevant Minister but that disclosure is not in compliance with the requirements for making a disclosure, he or she will receive the same protections as those afforded to someone who makes a compliant protected disclosure. In essence, our amendment proposes to add another provision to ensure greater security for those who are making protected disclosures to a Minister.
Amendment No. 38 seeks to provide greater guidance, oversight and transparency in respect of the new procedure the Bill introduces for making protected disclosures to the Minister. We were not in favour of scrapping this new process whereby the Minister will simply hand on a protected disclosure to the new protected disclosures office, but our initial amendments in this regard were not accepted. We are trying to improve the new process by ensuring there is more clarity with regard to the guidelines on how it is to work. We want to ensure those who handle the protected disclosure on behalf of the Minister have sufficient training and that those who qualify for making a protected disclosure have proper access to the relevant information. Our amendment is about adding additional provisions to the Bill.
I thank Senators Higgins and Ó Donnghaile for their contributions on what I acknowledge is a substantive issue in the Bill. The issue was raised a number of times over the course of the debate in Dáil Éireann. I will set out our thinking, rationale and the background to what is proposed in the relevant provisions.
These amendments provide for the deletion of section 8(2)(b) of the principal Act, as amended. Section 8(2)(b) provides that a worker employed by a public body can only report to a Minister if he or she reasonably believes the information disclosed in his or her report, and any allegations contained in it, are true. I have looked again at this provision on foot of amendments proposed by Deputy Mairéad Farrell on Report Stage in the Dáil and representations made to me by Transparency International Ireland. The intent behind the amendments the Bill proposes to section 8 of the principal Act is to provide that a public sector worker should report in the first instance either to his or her employer or to a prescribed person before he or she reports to a relevant Minister. If, having made such a report to his or her employer or a prescribed person, the worker reasonably believes no action or insufficient action has been taken, there should be no further impediment to his or her reporting to a Minister. However, section 8(2)(b), as provided for in the Bill, requires that the worker must reasonably believe the information reported is entirely true. This imposes an additional test for reporting to a Minister on top of the criteria the worker is required to fulfil to report to his or her employer or to a prescribed person. This is not in line with the policy intent and, for this reason, I am proposing the provision be deleted.
I do not propose to accept amendments Nos. 28, 31, and 33 to 39, inclusive. Amendments Nos. 28 and 37 would remove or nullify the criteria to report in the first instance to either the employer or a prescribed person before reporting to a Minister. As Senator Higgins acknowledged, the Bill provides a number of qualifiers to the criteria to report in the first instance to either the employer or a prescribed person before reporting to a Minister. These qualifiers include where the worker reasonably believes the head of the public body is complicit in the wrongdoing or where there is a manifest danger to the public interest. I acknowledge the comments Senator Higgins made in regard to the specific wording.
Amendments Nos. 31 to 36 widen the qualifiers to such an extent as to dilute significantly the requirement to report in the first instance to either the employer or the prescribed person before reporting to the Minister. This is not in line with the policy intent. The operation of the ministerial channel has been one of the most challenging areas of implementation of the principal Act. The intent behind the provision of a ministerial channel under the Act was that in the event that a public body failed to deal properly with an internal report, a worker in that public body would have the fallback option of reporting to the Minister. In practice, there has been a tendency for reporting persons either to go to the Minister first or report simultaneously to both their employer and the Minister.
The practice of simultaneous or near-simultaneous reporting through different channels was raised as a concern by the disclosures tribunal, which recommended that the Oireachtas consider amending the legislation such that when a report is made, the initial recipient is afforded a reasonable amount of time to take action before the reporting person moves on to an alternative channel. Furthermore, Article 7 of the whistleblowing directive requires member states to encourage reporting internally in the first instance. The introduction of a requirement that the reporting person should report using one of the other channels first is intended to address this issue, which will transmit disclosures to appropriate bodies for assessment and follow-up. For these reasons, I do not accept the amendments.
I am not clear on the purpose of amendment No. 38. It proposes to make provision for reports made to Ministers other than through section 8 of the principal Act, which deals with the ministerial channel. There is no other legislative provision through which Ministers can receive reports other than through section 8. Ministers cannot receive reports through section 6, which provides for the internal reporting channel, or section 7, which provides for the external reporting channel to prescribed persons. Accordingly, I cannot accept this amendment.
Amendment No 39 provides for Ministers and heads of Departments to seek the view of the protected disclosures commissioner when they receive a report that is outside their remit. The Bill provides for reports made to Ministers to be transmitted to the commissioner, who will then transmit them to a prescribed or suitable person for follow-up, as required. That suitable person may well, in the view of the protected disclosures commissioner, be the Minister, in which case it will come back to the latter to deal with it. Heads of Departments can already transmit to a designated person in another body, where that is required for follow-up, within strict confidentiality requirements. An additional requirement on heads of Departments to consult with the protected disclosures commissioner in every instance where a report is not within their remit would result in an unnecessary increase in the administrative burden. There is nothing in the legislation to prevent heads of Departments from consulting with the protected disclosures commissioner as required. I cannot accept this amendment.
The thrust and purpose of what we are seeking to do in these provisions is to improve the existing process. It is fair to say that process is not working for all parties, including whistleblowers. We need a clear process in terms of where protected disclosures should be going and where and by whom they should be dealt with. In some instances, they will continue to come to the Minister, who will then transmit them to the protected disclosures commissioner and the latter will independently make an assessment as to who is the most appropriate person to deal with that disclosure. It could be somebody in the employer body, a prescribed body or the Minister. Ultimately, the protected disclosures commissioner will make that judgment call. We are seeking to put a structure and process in place in this regard. In my view, the current system is not working as well as it should in respect of this channel.
While the directive proposes that people should be encouraged to go directly to public bodies, my concern is that the way this provision is phrased is less about encouraging people to do that and more about discouraging reports to Ministers. It is by having positive measures within public bodies that we will encourage employees to act. When cases begin to pile up, people who make a disclosure may find that nobody is penalised and no action is taken to address the substantive issue they highlighted. Once we have seven, eight, ten or 20 examples of that happening, people will be encouraged to go directly to their public bodies.
At the moment, however, there is not that encouragement, which is positive encouragement. Instead, what we have seen in this Bill and in the section, sadly, are measures to make the ministerial channel less inviting and less open. The fact that people are not going directly to their own employers in public bodies first is because they have not received good treatment there and because they have seen others very publicly receive very poor treatment when they have done that. Therefore, encouraging people to go to those is around positive measures that need to be taken whereas I believe discouraging another channel is a regressive step, sadly. We have moved forward in many other aspects of the Bill but I think this is a regressive step. Some of the language I highlighted is really discouraging and dissuasive and creates a chill effect and, indeed, perhaps a fear of consequence for persons who are doing something for others and not for themselves. I feel really strongly about this section and I will come back to it on Report Stage.
I may come also back with a different version of amendment No. 39 on Report Stage. The key issue for me is whether there are safeguards to ensure there should never be a situation, although we know there have been multiple situations, whereby any person or persons who are directly or indirectly effectively the subject matter of a protected disclosure would be able to influence or be in a decision-making position around how that protected disclosure is dealt with. Similarly, I am aware of instances whereby the decision as to whether somebody should receive payments or restitution in terms of the penalisation they received ended up being routed through the person about whom they made the original disclosure. Again, I will bring forward another version of that. It is really important that this element at least should perhaps go in so there are safeguards in that regard. I am not sure how we address them but we really need to do so because that scenario happens. I do not see that the Bill guards people. We can have all the good practices we want but that question of who is making the decisions and ensuring there is a real firewall is something we can perhaps improve or strengthen.
As I said, I fundamentally believe that if anybody has a matter that is in the public interest and, certainly, a matter that could damage the public interest, that is enough of a bar and they should be able to go to a Minister as a public servant and as a citizen. That is why I fundamentally think the constraints in this section are too much. I will press amendment No. 28.
We will consider in good faith any further amendments the Senator puts down. I reiterate the point that we are trying to get away from a scenario whereby the first port of call is to send a protected disclosure to the Minister. One of the issues under the existing Act is that it is silent on precisely what the Minister should do with the protected disclosure when it is received. At least under the Bill, we have the provision whereby the office of the protected disclosures commissioner is being set up, which is where the Minister will send the protected disclosure for assessment. As I said earlier, on the conclusion of that assessment, it may well come back to the Minister to deal with or it may go to the direct employer or a prescribed person.
That is an important reform because the truth is that when a protected disclosure comes into a Minister, the Minister is, in practice, reliant on whatever advice his or her Department will give him or her. That is the truth, which, as the committee has heard in earlier meetings, can be problematic if the matter concerns wrongdoing by that Department. That is also a factor. In addition, where the matter relates to allegations of wrongdoing in a body under the aegis of the Minister's Department, the power of the Minister to take action can sometimes be quite limited as some bodies enjoy strong statutory independence from Government, such as local authorities and many regulatory agencies.
We will consider any further amendments the Senator puts down. By the way, the advice from the Attorney General is that the provisions of the Bill do not constitute regression under the grounds of the directive. That is the clear legal advice we have received. I heard the points the Deputy made, however, and I think we can engage further on them.
I will maybe make two-----
I am sorry; Senator Ó Donnghaile wishes to some in first and then I will bring Senator Higgins in.
I thank the Minister for his comprehensive response with regard to amendments Nos. 37 and 38. I do not have the lead brief on this for our group. I am inclined to withdraw them when we get to that point and reserve the right to resubmit on a further Stage. I can inform colleagues of the Minister's response.
I have one further point and one follow-up question for the Minister. It is right and proper for us, as parliamentarians and Oireachtas Members, that there should be a political accountability element to it as well. Ultimately, those of us who are elected, and those of us who are fortunate enough to be elevated to the position of being responsible for an area of public life in Ireland as a Minister, have a particular responsibility in terms of decision-making and what happens in respect of the management of public resources and so forth. A level of public accountability comes with the fact that when a report has been made to the Minister, it has touched the elected representatives or those public representatives in that sense. Yes, there have perhaps been failings in the past but as the Minister described it, the failings were downstream where it was unclear what a Minister would do with a protected disclosure. I feel we could address the issue of a clear line on what the Minister should do with a protected disclosure without having this element where we discourage the bringing of disclosures to the Minister. For me, it is important to set out what the Minister does with the disclosure. Even doing that would in itself address most of the concerns that have arisen without then also having this discouragement of the report to the Minister.
I would like there to be a point in Ireland whereby any issue that are highlighted as being of public concern are dealt with slowly through that kind of light. Sadly, however, it is often only when there has been heat that issues have been addressed. Very practically, it has often only been when Ministers have answered questions to committees, the media or in the Seanad or Dáil, where we have a political point of accountability, that issues have been addressed. There are so many cases in which an issue has been highlighted for ten years and it was only when it became a political point of discussion that action and proper investigation happened. That, sadly, is the reality and that is what people see. In that context, even if we move to a point whereby we really have adequate other channels, it may be, at a minimum, premature to move away from the ministerial channel being there as an axis. That is why I really believe it is an important point, although I acknowledge the improvements at the other side.
My question concerns some of that very strong and undefined language I identified, which is being attached around issues of public interest and so forth. Is the Minister at a minimum open to reviewing some of that language before Report Stage?
I want to absolutely assure Senator Higgins and the wider public that introducing any form of chilling effect is not the intention in this Bill. This is a good Bill that strengthens protections for whistleblowers and puts a process in place that I believe will deliver better outcomes. That is really important. That is certainly my only agenda in bringing forward this legislation. I will consider the points the Senator made in that respect.
She raised then a specific issue with regard to section 12 of the Bill and, essentially, what she regards as the bar being set too high for allowance for a direct disclosure to the Minister. She highlighted the phrase "an imminent or manifest danger”, in particular, as well as the idea of the head of the public body concerned being directly complicit. I will examine those between now and Report Stage. We will take on board the points the Senator made insofar as we can.
I will probably withdraw a number of the subsequent amendments because I think we have potential for engagement on them. I will press amendment No. 28, however, which is the fundamental principle of it.
Amendment put and declared lost.
SECTION 12
Government amendment No. 29:
In page 23, line 31, after “body,” to insert “and”.
Amendment agreed to.
Government amendment No. 30:
In page 23, to delete lines 32 and 33.
Amendment agreed to.
I move amendment No. 31:
In page 23, line 33, to delete “and” where it secondly occurs and substitute “or”.
I withdraw the amendment and reserve the right to resubmit on Report Stage.
Amendment, by leave, withdrawn.
Government amendment No. 32:
In page 23, line 34, to delete “(c)” and substitute “(b)”.
Amendment agreed to.
I move amendment No. 33:
In page 24, between lines 2 and 3, to insert the following:
“(ia) the worker reasonably believes that their own manager or the head of the public body is complicit in the wrongdoing concerned;”.
I withdraw the amendment and reserve the right to resubmit on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 34:
In page 24, between lines 2 and 3, to insert the following:
“(ia) the worker did not feel confident to make a report under section 6, 7 or 8 due to a reasonable fear of penalisation;”.
I withdraw the amendment and reserve the right to resubmit on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 35:
In page 24, line 6, to delete “an imminent or manifest danger” and substitute “a danger”.
I withdraw the amendment and reserve the right to resubmit on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 36:
In page 24, lines 7 and 8, to delete “, such as where there is an emergency situation or a risk of irreversible damage”.
I withdraw the amendment and reserve the right to resubmit on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 37:
In page 24, between lines 8 and 9, to insert the following:
“(d) a worker who is or was employed in a public body and who has made a disclosure to a relevant Minister but who has not made a disclosure in compliance with section 8(2)(c) shall benefit from the protections set out in this Act if they comply with section 8(2)(b) and other relevant sections in the Act.”.
I withdraw the amendment and reserve the right to resubmit on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 38:
In page 24, between lines 12 and 13, to insert the following:
“(aa) otherwise, where the Minister deems it to be in the public interest, the relevant Minister shall acknowledge, in writing, to the reporting person, receipt of a report made to the Minister not more than 7 days after receipt of it, save where the reporting person explicitly requested otherwise or the Minister reasonably believes that acknowledging receipt of the report would jeopardise the protection of the identity of the reporting person.
(ab) The Minister shall ensure that where a report is received by the Minister through channels and procedures other than those provided for in subsections (1) and (2) or is received by a member of staff other than a designated person—
(i) it shall be forwarded promptly and without modification to the designated person, and
(ii) any information that might identify the reporting person or the person concerned shall not be disclosed by such member of staff.
(ac) The Minister shall designate one or more than one member of staff (in this section referred to as a ‘designated person’) to be responsible for handling reports and, in particular, for providing any person with information on the procedures for making a report in the manner specified in section 7.
(ad) The Minister shall ensure that designated persons receive specific training for the purposes of handling reports.
(ae) The Minister shall publish on a website maintained by or on behalf of the Minister in a separate, easily identifiable and accessible section at least the following information:
(i) the conditions for qualifying for protection under this Act;
(ii) the contact details of the Minister for the purpose of making reports to the Minister in the manner specified in section 6 and 58, in particular the electronic and postal addresses and the telephone numbers for making such reports, indicating whether the telephone conversations are recorded.”.
I withdraw the amendment and reserve the right to resubmit on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 39:
In page 24, between lines 22 and 23, to insert the following:
“(4A) Where a Minister of the Government or a head of a public body receives a protected disclosure which is outside the remit of their Department of State or public body, they shall seek the views of the Protected Disclosures Commissioner and with the consent of the reporting person transmit to the relevant Minister of the Government or head of a public body the protected disclosure.”.
I withdraw the amendment and reserve the right to resubmit on Report Stage.
Amendment, by leave, withdrawn.
Question proposed: "That section 12, as amended, stand part of the Bill".
Unfortunately, I regard the section as a step backwards and formally oppose the section.
Question put and declared carried.
SECTION 13
Government amendment No. 40:
In page 25, to delete lines 13 to 32 and substitute the following:
“ “10.A disclosure is made in the manner specified in this section if—
(a) it is made otherwise than in the manner specified in sections 6 to 9,
(b) the worker reasonably believes that the information disclosed in the report, and any allegation contained in it, are substantially true, and
(c) the worker—
(i) has previously made a disclosure of substantially the same information in the manner specified in section 6, 7 or 8, as the case may be, but no appropriate action was taken in response to the report within the period specified in section 6A(1)(e), 7A(1) (c), 10C(7)(b), 10D(7)(b) or 10E(1)(c), as the case may be, or
(ii) reasonably believes that—
(I) the relevant wrongdoing concerned may constitute an imminent or manifest danger to the public interest, such as where there is an emergency situation or a risk of irreversible damage, or
(II) if he or she were to make a report in the manner specified in section 7 or 8, as the case may be—
(A) there is a risk of penalisation, or
(B) there is a low prospect of the relevant wrongdoing being effectively addressed, due to the particular circumstances of the case, such as those where evidence may be concealed or destroyed or where a prescribed person may be in collusion with the perpetrator of the wrongdoing or involved in the wrongdoing.”.”.
This amendment provides for an amendment to section 10 of the principal Act, as amended by this Bill, to reinstate the requirement in the original Act that a worker making a public disclosure should reasonably believe that the information reported is substantially true.
The original text in the Bill transposed the provisions concerning public disclosure that are set out in Article 15 of the directive. The conditions at Article 15 are, however, in addition to the conditions that apply under Article 6(1)(a) of the directive that the reporting person has “reasonable grounds to believe that the information on breaches reported was true at the time of reporting and that such information fell within the scope of this Directive”. The provision in the Bill as it stands is not, therefore, a complete transposition of the public disclosure provisions in the directive and this needs to be corrected.
The original text of section 10 of the Principal Act provided, at section 10(1)(a), that “the worker reasonably believes that the information disclosed, and any allegation contained in it, are substantially true”. This is a slightly more favourable test for the reporting person than is provided for under the directive. As allowed under the non-regression clause at Article 23 of the directive, I have decided to reinstate this provision and this is what this amendment provides for. From the point of view of the whistleblower, this is a favourable change relative to the directive.
Amendment agreed to.
Section 13, as amended, agreed to.
SECTION 14
Amendments Nos. 41 and 75 are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 41:
In page 26, line 15, after “Finance” to insert the following:
“and in consultation with the Joint Oireachtas Committee on Finance, Public Expenditure and Reform and Taoiseach”.
Amendment, by leave, withdrawn.
I move amendment No. 42:
In page 26, between lines 26 and 27, to insert the following:
“(7A) The powers of the Commissioner provided for in this Part shall apply to protected disclosures made prior to the commencement of this Part or sections of this Part.”.
Amendment, by leave, withdrawn.
Government amendment No. 43:
In page 28, line 3, after “feedback” to insert “(including further feedback)”.
Amendment agreed to.
Government amendment No. 44:
In page 30, line 25, to delete “coming into operation” and substitute “commencement”.
Amendment agreed to.
Government amendment No. 45:
In page 35, line 31, to delete “coming into operation” and substitute “commencement”.
Amendment agreed to.
Government amendment No. 46:
In page 39, line 32, to delete “coming into operation” and substitute “commencement”.
Amendment agreed to.
Section 14, as amended, agreed to.
Sections 15 to 19, inclusive, agreed to.
SECTION 20
Government amendment No. 47:
In page 50, line 2, after “Act,” to insert “whether the report was made before or after the date of the passing of the Protected Disclosures (Amendment) Act 2022,”
This forms part of the package of measures we are providing for retrospective application of the legislation.
Section 20 provides for the amendment of section 42 of the Freedom of Information Act to create an exemption from the FOI Act for records pertaining to protected disclosures. This is in order to protect the identities of reporting persons and persons concerned and to prevent the FOI Act being misused to "out" a reporting person or to impede or frustrate follow-up on a protected disclosure. This amendment provides that this exclusion applies to any records pertaining to protected disclosures made by both old and new workers prior to the enactment of the Bill. Its purpose is to facilitate a retrospective application of the Bill in so far as we can.
Amendment agreed to.
Section 20, as amended, agreed to.
SECTION 21
I move amendment No. 48:
In page 50, line 18, to delete “mainly” and substitute “partly”.
Whistleblowers should be entitled to legal remedy, support and protection and should not have to suffer for doing the right thing. I look forward to hearing the Minister's remarks.
I thank Senator Flynn for raising this issue. It is important to point out that interim relief is being extended under the Bill to all acts of penalisation, which is a positive development.
This amendment proposes to reduce the threshold for employees who wish to apply to the Circuit Court for interim relief following penalisation. It proposes to reduce the threshold from “an employee who claims to have suffered penalisation wholly or mainly from having made a protected disclosure” to “an employee who claims to have suffered penalisation wholly or partly from having made a protected disclosure”. I have consulted the Attorney General on this issue. The existing text of the Bill is consistent with the provisions of the principal Act dealing with interim relief. Amending this provision may have wider implication for the Act and its operation, in the view of the Attorney General. Accordingly, I cannot accept this amendment.
Amendment put and declared lost.
Section 21 agreed to.
Section 22 agreed to.
SECTION 23
Amendment No. 49 has been ruled out of order as it involves a potential charge on the Revenue.
Amendment No. 49 not moved.
Question proposed: "That section 23 stand part of the Bill."
The section is opposed by Senators Gavan, Ó Donnghaile, Warfield, Boylan, Higgins and Flynn.
I oppose the section and will vote accordingly.
Question put:
The Committee divided: Tá, 20; Níl, 6.
Tá
- Ahearn, Garret.
- Blaney, Niall.
- Buttimer, Jerry.
- Byrne, Malcolm.
- Byrne, Maria.
- Carrigy, Micheál.
- Casey, Pat.
- Cassells, Shane.
- Chambers, Lisa.
- Conway, Martin.
- Crowe, Ollie.
- Cummins, John.
- Davitt, Aidan.
- Dolan, Aisling.
- Fitzpatrick, Mary.
- Horkan, Gerry.
- Kyne, Seán.
- Murphy, Eugene.
- Seery Kearney, Mary.
- Wilson, Diarmuid.
Níl
- Flynn, Eileen.
- Higgins, Alice-Mary.
- Keogan, Sharon.
- Ó Donnghaile, Niall.
- Sherlock, Marie.
- Wall, Mark.
Tellers: Tá, Senators Seán Kyne and Lisa Chambers; Níl, Senators Niall Ó Donnghaile and Eileen Flynn..
Question declared carried.
SECTION 24
Amendments Nos. 50 to 58, inclusive, and 60 are related and may be discussed together.
Government amendment No. 50:
In page 51, line 36, after “persons,” to insert “or”.
These amendments are related to the provision for an offence of knowingly making false reports. Article 23.2 of the directive provides that such penalties should apply only to reporting persons who make such reports. The Bill as drafted, however, provides that a person who makes a report containing any information that the reporting person knows to be false commits an offence. A concern has been raised with my officials that this could be interpreted to apply not only to reporting persons but also to any other person who handles or transmits a false report, even if that person does not know the information is false. This could have unintended consequences for a whole range of people, including employers, prescribed persons, the commissioner, legal advisers and any other facilitators who handle reports or assist a person in making a report. These amendments address this issue by making it explicit that this offence applies only to reporting persons.
I am not accepting amendment No. 51. It provides for the inclusion of “provides knowingly false information in relation to a reporting person” as an offence. Provision of false information to discredit a reporting person or cause him or her detriment is encompassed by the definition of penalisation, which states that any direct or indirect act or omission which occurs in a work-related context and causes or may cause unjustified detriment to a worker, penalising or threatening to penalise a reporting person, is already a criminal offence in the Bill. There is no requirement in the directive to draw such a specific offence out of the general requirement to provide that penalisation or threatening to penalise is an offence.
I welcome to the debate the three witnesses in the Visitors Gallery. On a point relevant to the section, one of the witnesses said to me: "We do the right thing by the system but, unfortunately, the system does not do the right thing by us". I have to agree with him. How this amendment stands now means that the victim will always be the victim and the victim will always be punished, but what about the victim's company, the employer? We want to withdraw this amendment. However, we want more engagement with the Minister and the Department in advance of Report Stage.
I presume the Senator is talking about withdrawing amendment No. 51 in her name and that of Senator Higgins.
Yes, but with permission to bring it back on Report Stage.
I refer to amendment No. 52 in our names. It proposes a deletion. It is related to our previous amendment and the risks of tort action against the disclosure. I am keen to hear the Minister's response to amendment No. 52.
Amendment No. 52 is a Government amendment.
Amendment No. 52 is a Government amendment.
Yes, but it is also in our name.
We deleted the penalty for false reporting and replaced it with the better definition. The concern was that due to the way it was presented, it would not only apply to the whistleblower but could apply to anybody who handled the transmission of the protected disclosure. That is clearly not the intention of the directive or the Bill. It is in favour of whistleblowers and anyone else who is part of the process.
I thank the Minister.
Amendment agreed to.
I move amendment No. 51:
In page 51, between lines 36 and 37, to insert the following:
“(da) provides knowingly false information in relation to a reporting person or the matter, which is the subject of their report,”
Amendment, by leave, withdrawn.
Government amendment No. 52:
In page 51, to delete lines 37 and 38.
Amendment agreed to.
Government amendment No. 53:
In page 52, line 1, to delete “(f)” and substitute “(e)”.
Amendment agreed to.
Government amendment No. 54:
In page 52, between lines 4 and 5, to insert the following:
“(2) A reporting person who makes a report containing any information that he or she knows to be false commits an offence.”.
Amendment agreed to.
Government amendment No. 55:
In page 52, to delete lines 5 and 6 and substitute the following:
“(3) A person who commits an offence under subsection (1)(a), (b), (c) or (e) is liable—”.
Amendment agreed to.
Government amendment No. 56:
In page 52, line 11, to delete “(3)” and substitute “(4)”.
Amendment agreed to.
Government amendment No. 57:
In page 52, to delete line 16, and substitute the following:
“(5) A person who commits an offence under subsection (2) is liable—”.
Amendment agreed to.
Government amendment No. 58:
In page 52, to delete line 21 and substitute the following:
“(6) (a)Where an offence under subsection (1)(a), (b), (c), (d) or (e) or".
Amendment agreed to.
Amendments Nos. 59 and 61 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 59:
In page 52, between lines 33 and 34, to insert the following:
“(5A) Where an offence under subsection (1)(a), (b), (c), (d) or (f), section 10F(14) or 12(5) or (6) has been committed by a body corporate, that body corporate shall be liable on conviction on indictment, to a fine not less than €500,000.”.
Amendment No. 59 introduces a new penalty for bodies corporate that commit an offence as set out in the legislation. It provides for a fine of not less than €500,000 on indictment. This is significantly higher than the criminal penalties currently provided for in the Bill, which provide for fines ranging from €75,000 to €250,000. These penalties can apply to individuals as well as corporate bodies. The criminal penalties in the Bill were considered with the Office of the Attorney General with the purpose of aligning them as much as possible with similar type provisions on the Statute Book. Accordingly, I am not in a position to accept this amendment.
Amendment No. 61 removes the provision allowing the Workplace Relations Commission to bring and prosecute summary proceedings where certain employers fail to comply with their obligation to establish and maintain reporting channels and procedures. Enforcement of the obligation on certain employers to establish and maintain reporting channels and procedures is an essential element in the transposition of the EU whistleblower directive. Accordingly, I am not in a position to accept the amendment.
Amendment put and declared lost.
Government amendment No. 60:
In page 52, to delete line 34 and substitute the following:
“(7) Summary proceedings for an offence under subsection (1)(e) may be”.
Amendment agreed to.
I move amendment No. 61:
In page 52, to delete lines 34 and 35.
Amendment, by leave, withdrawn.
Section 24, as amended, agreed to.
SECTION 25
Amendments Nos. 62, 64 and 72 are related and may be discussed together. Is that agreed? Agreed.
Government amendment No. 62:
In page 52, line 40, to delete “3” and substitute “2A”.
This is a set of technical amendments to sections 25 and 31 to tidy up the numbering of the sections. Section 25 adds a new paragraph (3) in the current draft of the Bill to the Schedule. I am informed by the Office of the Parliamentary Counsel that the correct drafting convention that should have been used here is to number the inserted paragraph as 2A, and this is what is provided for by this amendment. The amendment to section 31 tidies up the numbering in the principal Act.
We welcome the Minister's amendment.
Amendment agreed to.
I move amendment No. 63:
In page 53, between lines 12 and 13, to insert the following:
“(b) by the insertion of the following paragraph after paragraph 1:
“2. For the avoidance of doubt, compensation or remuneration may be made awarded to reporting persons who made a protected disclosure prior to the commencement of these provisions.”.”.
Amendment, by leave, withdrawn.
Government amendment No. 64:
In page 53, line 15, to delete “ “3.” and substitute “ “2A.”.
Amendment agreed to.
Section 25, as amended, agreed to.
Section 26 agreed to.
NEW SECTIONS
I move amendment No. 65:
In page 53, between lines 32 and 33, to insert the following:
“Public information campaign
27. The Minister may, subsequent to the passing of this Act, hold an accessible public information campaign in respect of the role of whistleblowing in the advancement of the public good and the mechanisms by which someone may make a protected disclosure and the supports which they may avail in respect of the making of such a disclosure.”.
I will withdraw this amendment with permission to bring it forward on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 66:
In page 53, between lines 32 and 33, to insert the following:
“Compliance with Directive (EU) 2019/1937
27. Where, following enactment, a provision of this Act is found to be inconsistent with Article 25(2) of Directive (EU) 2019/1937, the Minister shall by order repeal that provision, and shall within six months lay revised provisions before both Houses of the Oireachtas and shall seek the views of the relevant Oireachtas Committee.”.
Amendment put and declared lost.
Section 27 agreed to.
SECTION 28
Government amendment No. 67:
In page 54, line 30, to delete “coming into operation” and substitute “commencement”.
Amendment agreed to.
Government amendment No. 68:
In page 54, line 32, to delete “coming into operation” and substitute “commencement".
Amendment agreed to.
Section 28, as amended, agreed to.
SECTION 29
Amendment No. 69 is out of order due to a potential charge on the Revenue.
More is the pity. It is a good one, like them all.
Amendment No. 69 not moved.
Section 29 agreed to.
SECTION 30
Amendments Nos. 70 and 71 are related and may be discussed together. Is that agreed? Agreed.
Government amendment No. 70:
In page 57, line 10, to delete “4” and substitute “6”.
Section 22(9) of the Act, as amended, provides for the protected disclosures commissioner to prepare and publish an annual report on the operation of the Act not later than four months after the end of each calendar year. The Office of the Ombudsman has suggested, and I have agreed, that this should be extended to six months after the end of each year to align the reporting date with the other statutory reports published annually by the Ombudsman. These amendments give effect to this proposed change.
Amendment agreed to.
Government amendment No. 71:
In page 57, line 21, to delete “4” and substitute “6”.
Amendment agreed to.
Section 30, as amended, agreed to.
SECTION 31
Government amendment No. 72:
In page 57, line 31, to delete “ “24A.” and substitute “ “25.”.
Amendment agreed to.
Section 31, as amended, agreed to.
SECTION 32
Government amendment No. 73:
In page 57, after line 42, to insert the following:
“Transitional provisions
32. The Principal Act is amended—
(a) in Part 5, by the insertion of the following section after section 25 (inserted by section 31):
“26. The transitional provisions set out in Schedule 7 shall have effect.”,
and
(b) by the insertion after Schedule 6 (inserted by section 33) of Schedule 7 as set out in Schedule 3 to this Act.”.”.
Amendment agreed to.
Section 32, as amended, agreed to.
Sections 33 and 34 agreed to.
SCHEDULE 1
Amendments Nos. 74 and 76 are related and may be discussed together.
Government amendment No. 74:
In page 59, to delete line 4.
These are technical amendments to delete unnecessary signpost references in the draft Bill. The purpose of the amendments is to delete the references to “Section 15” and “Section 3” in the schedules, which are neither correct in terms of where they appear, nor necessary. They are intended as signposts only as to the sections to which they relate and nothing turns on them from a legal perspective.
Amendment agreed to.
I move amendment No. 75:
In page 59, between lines 31 and 32, to insert the following:
“4A. A delegation under paragraph 3 must be for a specified period of time and may not be provided for indefinitely.”.
I withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 1, as amended, agreed to.
SCHEDULE 2
Government amendment No. 76:
In page 60, to delete line 4.
Amendment agreed to.
Schedule 2, as amended, agreed to.
NEW SCHEDULE
Government amendment No. 77:
In page 74, after line 20, to insert the following:
“SCHEDULE 3
Schedule 7 to Principal Act
“SCHEDULE 7
Transitional Provisions
1. In this Schedule—
‘Act of 2022’ means the Protected Disclosures (Amendment) Act 2022;
‘detriment’ has the meaning given to it by section 13.
2. Subject as provided for therein, section 12 (amended by section 21 of the Act of 2022) and Schedule 2 (amended by section 25 of the Act of 2022) shall apply where a worker within the meaning of section 3 (being that section in the terms as it stood before the commencement of section 4(a)(iii) of the Act of 2022) who is or was an employee—
(a) made a protected disclosure within the meaning of section 5 (being that section in the terms as it stood before the commencement of section 6 of the Act of 2022) before the date of the passing of the Act of 2022, and
(b) was penalised after the date of the passing of the Act of 2022 for having made such a disclosure.
3. Subject as provided for therein, section 13 (amended by section 22 of the Act of 2022) shall apply where—
(a) before the date of the passing of the Act of 2022, a worker within the meaning of section 3 (being that section in the terms as it stood before the commencement of section 4(a)(iii) of the Act of
2022) made a protected disclosure within the meaning of section 5 (being that section in the terms as it stood before the commencement of section 6 of the Act of 2022), and
(b) after the date of the passing of the Act of 2022, a person caused detriment—
(i) to the worker for having made such a disclosure, or
(ii) to another person because the worker made such a disclosure.
4. Subject as provided for therein, section 12 (amended by section 21 of the Act of 2022) and Schedule 2 (amended by section 25 of the Act of 2022) shall apply to a person who—
(a) was not a worker within the meaning of section 3 (being that section in the terms as it stood before the commencement of section 4(a)(iii) of the Act of 2022),
(b) made a disclosure of relevant information within the meaning of section 5(2) (being that section in the terms as it stood before the commencement of section 6 of the Act of 2022) before the
commencement of section 4(a)(iii) of the Act of 2022 (in this paragraph referred to as ‘the disclosure’),
(c) if the disclosure had been made after the commencement of section 4(a)(iii) of the Act of 2022, would—
(i) fall within the definition of ‘worker’ in section 3 (amended by the said section 4(a)(iii)), and
(ii) be an employee to whom section 12 (amended by section 21 of the Act of 2022) and Schedule 2 (amended by section 25 of the Act of 2022) would apply,
and
(d) is penalised after the commencement of section 4(a)(iii) of the Act of 2022.
5. Subject as provided for therein, section 13 (amended by section 22 of the Act of 2022) shall apply where—
(a) a person (in this section referred to as the ‘first-named person’)—
(i) was not a worker within the meaning of section 3 (being that section in the terms as it stood before the commencement of section 4(a)(iii) of the Act of 2022),
(ii) made a disclosure of relevant information within the meaning of section 5(2) (being that section in the terms as it stood before the commencement of section 6 of the Act of 2022) before the commencement of section 4(a)(iii) of the Act of 2022 (in this paragraph referred to as ‘the disclosure’), and
(iii) if the disclosure had been made after the commencement of section 4(a)(iii) of the Act of 2022, would fall within the definition of ‘worker’ in section 3 (amended by the said section 4(a)(iii)),
and
(b) after the date of the passing of the Act of 2022, a person caused detriment—
(i) to the first-named person for having made the disclosure, or
(ii) to another person because the first-named person made the disclosure.
6. Subject as provided for therein, section 12 (amended by section 21 of the Act of 2022) and Schedule 2 (amended by section 25 of the Act of 2022) shall apply where—
(a) before the date of the passing of the Act of 2022, a worker within the meaning of section 3 (being that section in the terms as it stood before the commencement of section 4(a)(iii) of the Act of
2022) who is or was an employee—
(i) made a protected disclosure within the meaning of section 5 (being that section in the terms as it stood before the commencement of section 6 of the Act of 2022), and
(ii) was penalised for having made such a disclosure,
and
(b) proceedings under section 12 (amended by section 21 of the Act of 2022) are initiated after the commencement of the said section 21.
7. Subject as provided for therein, section 13 (amended by section 22 of the Act of 2022) shall apply where—
(a) before the date of the passing of the Act of 2022, a worker within the meaning of section 3 (being that section in the terms as it stood before the commencement of section 4(a)(iii) of the Act of
2022)—
(i) made a protected disclosure within the meaning of section 5 (being that section in the terms as it stood before the commencement of section 6 of the Act of 2022), and
(ii) a person caused detriment—
(I) to the worker for having made such a disclosure, or
(II) to another person because the worker made such a disclosure,
and
(b) proceedings under section 13 (amended by section 22 of the Act of 2022) are initiated after the commencement of the said section 22.
8. Sections 14 and 15 shall apply where—
(a) before the date of the passing of the Act of 2022, a disclosure of relevant information within the meaning of section 5(2) (being that section in the terms as it stood before the commencement of
section 6 of the Act of 2022) was made by a person who—
(i) was not a worker within the meaning of section 3 (being that section in the terms as it stood before the commencement of section 4(a)(iii) of the Act of 2022), and
(ii) would fall within the definition of ‘worker’ in section 3 (amended by the said section 4(a)(iii)) if the disclosure had been made after the commencement of the said section 4(a)(iii),
and
(b) proceedings under section 14 or 15, as the case may be, are initiated after the date of passing of the Act of 2022.
9. Sections 16 (amended by section 16 of the Act of 2022), 16A and 16B shall apply to the following disclosures:
(a) a protected disclosure within the meaning of section 5 (being that section in the terms as it stood before the commencement of section 6 of the Act of 2022) made before the date of the passing
of the Act of 2022 by a worker within the meaning of section 3 (being that section in the terms as it stood before the commencement of section 4(a)(iii) of the Act of 2022);
(b) a disclosure of relevant information within the meaning of section 5(2) (being that section in the terms as it stood before the commencement of section 6 of the Act of 2022) made before the
date of the passing of the Act of 2022 by a person who—
(i) was not a worker within the meaning of section 3 (being that section in the terms as it stood before the commencement of section 4(a)(iii) of the Act of 2022), and
(ii) would fall within the definition of ‘worker’ in section 3 (amended by the said section 4(a)(iii)) if the disclosure had been made after the commencement of the said section 4(a)(iii).
10. Notwithstanding the amendments of this Act made by the Act of 2022, and paragraphs 2 to 9, anything commenced under this Act but not completed before the commencement of those amendments may be carried on and completed after the commencement of those amendments as if those amendments had not been made.”.”.
Amendment agreed to.
New Schedule agreed to.
Title agreed to.
Bill reported with amendments.
When is it proposed to take Report Stage?
Next Tuesday.
Is that agreed? Agreed.
Report Stage ordered for Tuesday, 28 June 2022.
I thank the Minister, Senators, the officials and the staff of the House for their co-operation.
Cuireadh an Seanad ar fionraí ar 3.54 p.m. agus cuireadh tús leis arís ar 4.48 p.m.
Sitting suspended at 3.54 p.m. and resumed at 4.48 p.m.