Skip to main content
Normal View

Seanad Éireann debate -
Thursday, 7 Jul 2022

Vol. 287 No. 3

Protected Disclosures (Amendment) Bill 2022: Report and Final Stages

Before we commence, I remind Senators that a Senator may speak only once on Report Stage, except for the proposer of an amendment, who may reply to the discussion on the amendment. On Report Stage, each non-Government amendment must be seconded. Amendment No. 1 is in the name of Senators Gavan and Boylan and arises out of committee proceedings. Amendments Nos. 1 to 4, inclusive, are related and may be discussed together, by agreement. Is that agreed? Agreed.

I move amendment No. 1:

In page 12, to delete lines 13 to 22 and substitute the following:

“ “(5A) Matter concerning interpersonal grievances exclusively affecting a reporting person, namely, grievances about interpersonal conflicts between the reporting person and another worker, or a matter concerning a complaint by a reporting person to, or about, his or her employer which concerns the worker exclusively and which clearly does not demonstrate wider wrongdoing, shall not be a relevant wrongdoing for the purposes of this Act and may be dealt with through any agreed procedures applicable to such grievances or complaint to which the reporting person has access or such other procedures, provided in accordance with any rule of law or enactment (other than this Act), to which the reporting person has access, notwithstanding the fact that a wilful and reckless attempt by an employer to mischaracterise a protected disclosure as an interpersonal grievance, where relevant wrongdoing has been demonstrated, shall be considered an offence as per 14A(1)(a).”,”.

I second the amendment.

The Minister will not be surprised to hear that Sinn Féin has a particular concern relating to the issue of the interpersonal grievance provision. We expressed particular concern about it before because there are risks that a protected disclosure could be deliberately mischaracterised as arising from a bullying allegation. We requested that the Minister of State remove this provision. He has not done so.

We are trying to be constructive. We have amended this section of the Bill. The first addition that we make includes the words "which clearly does not demonstrate wider wrongdoing". It is to try to be clear that no relevant wrongdoing has been demonstrated. The second addition is to make clear that any attempt by an employer to deliberately mischaracterise a protected disclosure would be considered an offence, as per a previous amendment that my colleague, Deputy Mairéad Farrell, tabled to the Bill, where attempts to hinder reporting are considered an offence.

We have a genuine concern about this. We are trying to be constructive and to engage with the Minister of State. We think this is a good way to strengthen the Bill. I know from my time as a trade union official that this is a route which some employers will, unfortunately, try to exploit. It is important to tighten up the Bill as much as we can. I hope the Minister of State appreciates that we are trying to be constructive with regard to this issue. While we do not agree with the Minister of State about retaining this provision, we are trying to make it better.

I am a little disappointed. We had a good discussion with the officials and I hoped that the Government would table amendments on Report Stage. There had been some recognition that valid issues and concerns were raised. I always prefer if the Government takes matters on board and brings forward its own proposals on issues. Since I do not see Government amendments, I hope it will take on board some or all of the constructive Opposition amendments that have been tabled.

It has been highlighted that the interpersonal grievance provisions in the Bill create not just ambiguity but danger. There is the danger that persons who may have experienced bullying or harassment, or who may indeed have matters that are interpersonal grievance matters, may believe that because they are in that process, they do not have the option to bring forward a protected disclosure. They may be told that and would not see anything in the Bill that would contradict that.

The more serious danger is that, where if somebody has raised and highlighted matters of public concern that might in future become part of a protected disclosure, we might create a perverse incentive for a manager or employer to bully or harass people or push them into a position where they are part of an interpersonal grievance process and therefore feel they are constrained. We know the intense levels of personal harassment, penalisation and bullying that have taken place with regard to whistleblowers. We should not have anything in the Bill that potentially rewards or encourages that. I have been assured that people can still make protected disclosures while they are undergoing a personal grievance process, but the Bill does not signal or inform people of that. It sends a contrary signal. I worry about the message it sends to the worker and to a manager or employer who may be engaged in wrongdoing. There are two distinct dangers.

Amendment No. 1 from the Sinn Féin Senators seeks to address this issue. I have tabled three amendments that seek to address it in different ways too. I will go through them briefly. Amendment No. 2 is an alternative to the previous amendment and would add a new subsection to clarify that a matter concerning an interpersonal grievance would be a relevant wrongdoing where it happens because somebody makes a protected disclosure or a dispute has come about because a person has made a protected disclosure and been penalised for doing so. In its report, which I sat on during the extensive pre-legislative scrutiny, the committee stated that the inclusion of interpersonal grievance in the current way creates unnecessary risks that a legitimate protected disclosure of wrongdoing could be deliberately mischaracterised and miscategorised as being related to another matter. The Bar of Ireland also highlighted the dangers of a lack of a proper definition of "interpersonal grievances" in the Bill. Transparency International Ireland highlighted that the current wording could cause confusion.

Amendment No. 3 is related to amendment No. 2. It states, "The Minister shall, within 9 months of the passing of this Act, lay draft guidelines clarifying that engagement in a process relating to an interpersonal grievance does not preclude a person from making a protected disclosure.”,”. This is the other mechanism where this might be done. I always prefer for matters to be stated clearly in legislation but amendments Nos. 3 and 4 are secondary amendments. If this route, using guidelines, is taken, it is important that information campaigns relating to protected disclosures clarify that a matter of interpersonal grievance should not preclude a person from making a protected disclosure in parallel and that people do not have to wait for the interpersonal grievance process to finish before they can make a protected disclosure.

Amendment No. 4 also relates to previous amendments. It seeks to clarify in the legislation, which is my preference for the avoidance of doubt, that an interpersonal grievance will not preclude a person from making a protected disclosure under any of the relevant sections of the Bill.

These are pragmatic proposals from me and other Senators that reflect issues highlighted in pre-legislative scrutiny and by the Bar Council of Ireland and Transparency International. There is a significant danger in the Bill and this could prevent it from working, and the issue was also discussed at length with the Minister of State's officials. I urge him to accept at least one of the ways of addressing this that we have put forward.

Amendments Nos. 1 to 4, inclusive, all relate to the treatment of interpersonal grievances under the legislation. I accept they were made in a constructive spirit and in an attempt to improve the legislation, and I accept the Senators' good intentions. As was discussed previously, the purpose of both the Protected Disclosures Act and the whistleblowing directive is to protect people who report wrongdoing in the public interest. Matters of private interest, such as personal grievances between a worker and his or her employer or a co-worker, lie outside the scope of this legislation and such matters are protected by the significant corpus of employment law, much of which existed for many decades before the Protected Disclosures Act. It was never the intention the Act would be an alternative avenue for the airing of personal grievances but, as we discussed previously, there have been significant issues in this area, reflected not least in the concerns about the wording of the Act raised by the Supreme Court in the Baranya case. For this reason, I cannot accept amendment No. 1 to section 5(5A) proposed by Senators Gavan and Boylan.

Amendment No. 2, tabled by Senators Higgins and Ruane, proposes that grievances that arise as a consequence of an act of penalisation against a whistleblower should be treated as protected disclosures. This is not appropriate given it would require additional, parallel grievance systems to be established as part of an organisation's whistleblowing function, resulting in unnecessary cost and the duplication of effort. It would also have the effect of blurring the lines between reports of wrongdoing, on the one hand, and allegations of penalisation, on the other, whereas it is essential these be treated separately when they arise. Accordingly, I cannot accept amendment No. 2.

Amendment No. 3 would provide that raising a grievance would not preclude a person from making a protected disclosure. The conditions for making a protected disclosure are clearly set out in section 5 of the Protected Disclosures Act and in the amendments made by the Bill. It is clear the raising of a grievance in no way prevents a person from being protected for also reporting a wrongdoing. In particular, section 5(7) states, “The motivation for making a disclosure is irrelevant to whether or not it is a protected disclosure.” I consider the amendment unnecessary and, as a result, I will not accept it.

Amendment No. 4 would provide that the Minister would issue guidelines in respect of the treatment of protected disclosures involving grievances. Section 28 already provides that the Minister shall issue guidance in respect of the operation of the legislation. The relationship between protected disclosures and grievances will be addressed comprehensively in this guidance. The amendment, therefore, is unnecessary and I will not accept it.

This issue has had a lot of back and forth both in the Dáil and here, as the Minister of State will be aware. I am very disappointed he has not taken on board any of the four amendments in the grouping. Sinn Féin will also support Senator Higgins's amendments. We are disappointed, given the importance of the Bill, all the work that has been done on it and the constructive manner in which much of it has been handled, that there is this gaping hole in the legislation that will be exploited. It is a mistake and I will press our amendment.

Amendment put and declared lost.

I move amendment No. 2:

In page 12, between lines 22 and 23, to insert the following:

“(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 penalisation of a reporting person by virtue of them having made a protected disclosure.”,”.

I second the amendment.

Amendment put and declared lost.

I move amendment No. 3:

In page 12, between lines 22 and 23, to insert the following:

“(5B) The Minister shall, within 9 months of the passing of this Act, lay draft guidelines clarifying that engagement in a process relating to an interpersonal grievance does not preclude a person from making a protected disclosure.”,”.

I second the amendment.

Amendment put and declared lost.

I move amendment No. 4:

In page 12, between lines 22 and 23, to insert the following:

“(5B) 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.”,”.

I second the amendment.

Amendment put and declared lost.

Amendments Nos. 5 and 6 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 5:

In page 12, to delete lines 28 to 33 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, follow-up on a matter which is the subject of that anonymous report.”.

I second the amendment.

In their report for the committee, the National University of Ireland, Galway, NUIG, experts expressed the view that granting a right not to accept anonymous disclosures would create a danger whereby an employer could justify not acting in cases where serious and dangerous wrongdoing has been reported because the report was anonymous. If, for example, there were to be an anonymous report of the release of toxic materials or of very significant financial wrongdoing, the employer, under the legislation, would not be required to accept that report. There are measures whereby if a report is not valid or does not have substance, it does not need to be followed up. The Bill as drafted, however, will mean the employer will not even have to accept the report, and that is an unacceptable level of deniability and avoidance of potential liability or follow-up action.

As I said, the NUIG experts speaking during pre-legislative scrutiny made clear this was not in line with international best practice from the UK, the United States, the OECD, Transparency International and the Department of Public Expenditure and Reform's own guidelines. Recommendation 20 from the committee stated there should be a legal requirement to accept anonymous reports of breaches and then to determine the follow-up on the same basis as that for other disclosures. This is about ensuring people who feel they need to make an anonymous disclosure will be treated fairly but, more important, when people make these disclosures, it is not someone applying for something. They are not getting anything or looking for something for themselves. Without the amendment, the Bill will raise the bar.

Protected disclosures are not an application process for a job. It is a very risky, often personally dangerous, step people take when they make disclosures. We have seen a litany of examples of the costs incurred to individuals. Where they raise issues of public concern, the substance of those issues should be the central focus in determining whether action should be taken, not whether the person has made himself or herself appropriately vulnerable by tagging his or her name to it. Again, these are not individuals seeking something for themselves but rather they are raising a red flag and highlighting an issue. That a bar of vulnerability will be required before somebody could flag an issue will create cases where matters of serious public concern and possibly of public danger are not alerted because the bar will have been raised such that employers will be able to ignore the concern.

They will see in the Bill that raising it anonymously does not guarantee that it will even be accepted, let alone be looked at. That is a concern. That is a danger in the Bill that has been highlighted strongly. There is evidence to show that the way the Bill deals with this is inadequate. It is a concern that may prevent people from disclosing serious wrongdoings.

Amendment No. 6 is based on the conversations that I have had with officials. These were conversations that I had in good faith, believing that the Government was looking to see how it could strengthen and improve the Bill. The point was made that people can make a disclosure through the protected disclosure commissioner. However, many people will not be aware of that fact. I have asked about it. I genuinely believed that we had some agreement. Even in the Chamber, the Minister of State seemed to acknowledge the validity of the point. If a person is not going to accept an anonymous report themselves, he or she should at least make every due effort to ensure that the person who is making the disclosure is aware that he or she can make that protected disclosure directly to a commissioner.

This is a signposting mechanism. The Minister for Children, Equality, Disability, Integration and Youth, Deputy O'Gorman, recently took it on, in relation to the Birth Information and Tracing Bill 2022. In that Bill, there was the idea that where information would not be provided, persons would be provided with a signpost to the correct channel whereby they could seek redress or information. Amendment No. 6 is a similar signposting amendment. It relates to where a person receives an anonymous report but does not want to accept it. It says that they should, where it is possible to do so, for example, in the case where they have received an email, "respond to the reporting person and inform them of their right to make a protected disclosure to the Commissioner.”."

This is a signposting amendment. It is a very low ask. I would ask that the Minister of State would accept it. It would simply say that if persons are not accepting the disclosure, where it is possible to do so, because it will not always be the case, they make reasonable efforts to direct the person towards the other channel for making a report that may be available to them. That is a minimum. This is not the case of an individual who is losing an opportunity that this is weighing against a report being considered. These are unknowable matters of public concern that the Minister of State is weighing against a person not processing, or to consider processing, an anonymous complaint. The scales are heavily tipped towards us in considering matters that are made as protected disclosures.

Senator Higgins raised a number of important queries. I will slightly contradict myself. One could argue that if all anonymous complaints were being treated with the same level, and if they were all automatically being pursued, that would increase the level of anonymous complaints and there may be more vexatious complaints, on the one hand. On the other hand, and this is particularly in smaller organisations, it would provide greater protection to the persons making a complaint if the right to anonymity in that the anonymous complaint were to be automatically pursued. This is particularly the case in smaller organisations, where a person might be more easily identifiable.

I look forward to the Minister of State’s response. There are valid issues here in relation to the whole area of anonymity. There is a balance to be struck between vexatious complaints and protecting individuals who might be more easily identifiable by virtue of having to make, or by deciding to make, a public complaint, versus the protection that anonymity provides.

The 2014 Act is silent on anonymous reporting. Accordingly, it allows recipients to exercise sound judgment in deciding how or whether to respond.

The whistleblowing directive sets out the position as regards anonymous reporting more explicitly. Article 6(3) provides that persons who report anonymously are entitled to the same protections that apply to reporting persons who do identify themselves. This is provided for in section 7 of the Bill. Article 6(4) provides that it is up to member states to decide if recipients should be required by law to accept and follow up on anonymous reports. In transposing this article, I have decided to preserve, as much as possible, the principle in the 2014 Act that allows recipients to exercise their own judgment as to how or whether to follow up. Nothing in this provision of the Bill prohibits workers from making anonymous reports. Indeed, section 19 of the Bill requires that recipients keep records of anonymous reports, whether or not they are accepted for follow up, in case of penalisation if the individual’s identity becomes known.

I do not see what amendment No. 5 adds to the legislation here. Regarding amendment No. 6, and I did listen carefully to the Senator’s points, but I believe this is already covered in the legislation. Section 6(a)(1)(g) requires that employers inform their workers that they can report to the commissioner or to a prescribed person. On that basis, I do not think that amendment is necessary either.

As the Minister has described the situation, Ireland has the option of making sure that anonymous disclosures are accepted. It is regrettable that we are choosing to say that they do not have to be accepted.

On the question of vexatious complaints, there are already filters to say that it is accepted. There is a question as to whether it needs to be followed up. The person does so if there is merit in doing so. There are many filters that allow for that already. The issue of vexatious complaints is not really a concern.

The public has seen the experience of whistleblowers in the media again and again and again. When people make a protected disclosure their life gets blown up, they get penalised, their family is targeted and there are all of the other things that have happened that people have seen. There is a huge set of measures and disincentives to making protected disclosures. I know that there are provisions for the public information that would encourage people to make them again. However, why are we demanding that people experience that vulnerability? This is like looking for a pound of flesh from persons who are already doing something as a public service, whereby there is no benefit to them and only a cost to them. This says that they also have to put their name on the line. This is even potentially the case in very small organisations and in very small towns where there are limited opportunities for employment and where the rest of one's family may work.

Let us think of the real places where this happens. People could be in a small town, wherein there are maybe two places in which they can work doing what they do. They are required to put their name out there in making a disclosure. Yes, there are protections from penalisation, but they are onerous. It is a long process, and they are certainly no substitute for having one's life functioning fully. The amounts are nothing when compared with the costs and risks that are taken.

We have created a situation whereby, sadly, in the next few years we will see some terrible situation. It will then be a case of, "Why was nothing done about it?” The situation will be that a disclosure had been made, that somebody was emailed, that somebody was told, that he or she did not accept that disclosure and that it was not followed up. We will have created a chain of deniability for people, because they will not have to accept, act on or investigate the substance of a matter that was made as a protected disclosure to a person who was in a position to investigate it, to act upon it and to perhaps stop the dangerous situation. The fact that they have a file stating that the received an email will not be sufficient. We are creating a situation whereby we will be letting companies off the hook for actions that are potentially extremely damaging to the public. I know we will see that case down the line, sadly. That will be a choice that we have made.

The Minister of State has outlined this really clearly. It is a choice. The directive said that we can choose to accept anonymous disclosures. I would note that it is particularly egregious for a country as small Ireland to not accept anonymous disclosures. This is a country where most people are living in smaller places. They do not have huge numbers of options for employment that would be comparable to some of the other countries that are transposing these directives. This is the wrong decision. It is a mistake. There is the failure to even provide an arrow to persons.

People will make a report and may not even signal it fully and properly as being a protected disclosure, but it is a matter that is such. Again, my amendment No. 6 encouraged people to bring it to the commission. To be clear, that was not to give those persons another chance; it was to maximise the public's chances of the issue being raised and receiving proper scrutiny. The damage is not only to the individuals but to the public. That is a poor decision, which I deeply regret. I will press the amendment.

Is the amendment being pressed?

Amendment put.

Will the Senators claiming a division please rise?

Senators Paul Gavan and Alice-Mary Higgins rose.

As fewer than five Members have risen I declare the amendment defeated. In accordance with Standing Order 61 the names of the Senators dissenting will be recorded in the Journal of the Proceedings of the Seanad.

Amendment declared lost.

I move amendment No. 6:

In page 12, after line 40, to insert the following:

“(3) For the avoidance of doubt, where a person receives an anonymous report they shall, where it is possible to do so, respond to the reporting person and inform them of their right to make a protected disclosure to the Commissioner.”.”.

I second the amendment.

Amendment put and declared lost.

Amendments Nos. 7 and 8 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 7:

In page 13, between lines 14 and 15, to insert the following:

“(aa) is performing a public contract with a value of more than €3,000,000, or”.

I second the amendment.

Amendment No. 7 is an attempt to make sure the 50-employee threshold for the requirement to create internal reporting channels would not apply where the company has a public contract with a value of more than €3 million. As the Minister of State will know, I have a keen interest in public procurement. Part of the quality criteria we have discussed in this House is how a company treats it workers, and general issues of quality and good practice. If the Government gives public contracts to companies, it is very important there are proper internal reporting channels to ensure there are necessary and appropriate safeguards for workers who wish to highlight a matter of concern. This is very important because we are not simply talking about a company but public money, and due diligence, due process and due care being given in respect of public money. We know there are situations where companies with a very small number of employees may have responsibilities relating to very large amounts of public money. In those contexts, it is very important such companies have internal reporting channels.

During the previous discussion, the Minister of State outlined the small but very important measures that are the difference between having a proper internal reporting channel and simply sending an email. For example, on the question of there being specific emails and specific guarantees of confidentiality, a number of practical mechanisms are involved in having a proper internal reporting channel. The Minister of State himself made the case for how important these were in giving greater confidence to workers who make a disclosure.

If a public contract is worth more than €3 million, we would all want to know whether something is up and whether there is an issue that merits a disclosure. It is very important - amendment No. 8 references this and makes it very clear - that under section 8(4), where the Minister can make orders relating to particular areas of high risk, there are exceptions to the employee thresholds. Amendment No. 8 states the Minister should, when he is making such orders, "have regard to the need to ensure that companies [who are] performing high value public contracts ... [should have] internal reporting channels regardless of the number of employees they have".

This was an issue I discussed with the Department. I had thought there was a degree of recognition of it. In the previous debate, the Minister of State seemed to recognise there was merit in this argument. I had expected a Government amendment in respect of this. I hope the Government will, at a minimum, signal its intention to make orders in respect of this matter, even if it does not accept my amendments requiring it to do so.

I thank the Senator. Amendment No. 7 removes the 50-employee threshold for employers performing a public contract with a value of more than €3 million. This would mean any employers in this category would be obliged to establish formal internal reporting channels and procedures. I am not accepting this amendment.

As discussed on Committee Stage, the impact of such an amendment needs careful consideration and evaluation to ensure we are not distorting the market for the provision of public services and putting some organisations, especially smaller companies and not-for-profit organisations, at a disadvantage during procurement competitions. I am very concerned that accepting this amendment could have unintended consequences. I will draw the Senator’s attention to section 6(6) of the Act, as amended by this Bill, which, when enacted, will allow the Minister for Public Expenditure and Reform to set lower thresholds for the establishment of internal channels on certain employers or certain classes of employers. If a business case can be made for applying this to public contracts of a certain value, as proposed by the Senator, this is the best mechanism by which this can be achieved.

I note amendment No. 8 proposes something along these lines. I do not accept this amendment as I think the existing mechanism set out in section 6(6) is sufficient, in particular on account of the requirement to conduct a risk assessment before making such an order.

In addition, I remind the Senator that section 6(1) of the Act already provides that a worker can report wrongdoing to the employer regardless of whether said employer has a formal internal reporting channel. I also draw the Senator's attention to section 6(1)(b) of the Act which provides that where a worker reasonably believes that a wrongdoing relates solely or mainly to the conduct of a person other than the worker's employer or to something for which a person other than the worker's employer has legal responsibility, the worker can report to that other person, and if these conditions are met, a worker whose employer has a contract with a public body should be able to raise his or her concerns with that public body if the worker so wishes. Furthermore, it is open to the Minister under section 6(7), as inserted by this Bill, to provide that employers open their reporting channels to persons other than employees. Consideration will be given to doing this in respect of persons and organisations that are contracted by public bodies.

Taking all this into account, I ask the Senator to withdraw her amendments.

There are some positive elements in what the Minister of State said, and there are also matters that remain a concern. I note positively the two final points that were made and I request that they be made clear in the public information campaigns that will come with this legislation. The widening of the right to make reports beyond workers is very important, for example, in situations which the Minister of State signalled. Where a contract is given for the provision of a public service, the persons receiving that public service via a party contracted by the State should certainly be empowered if they need to signal a matter. We know there have been situations where what a public body or a Department has been informed is happening is not what is happening in some areas. For example, some of the contracts in direct provision have been signals and situations whereby serious matters of concern have been highlighted by those persons receiving services from a contracted party.

It is also useful, and I again ask that this be part of the public information campaign, that the Minister of State has made it clear that if a public body has contracted for a service to a company, an individual should be able to make the protected disclosure directly to the public body. This is consistent with the public duty in equality and human rights which applies to public bodies and Departments. They remain responsible even when they have contracted various services to contracting providers. The core responsibility for ensuring compliance with the public duty in equality and human rights remains with the public body, so it is consistent with that. It is going to be very important to signal that, especially as sometimes those who are contracted to deliver services can be large multinationals where it is hard to identify the relevant persons. The important thing is that it is public money that is being spent in that way.

Those are useful factors, but I am still concerned about the decision not to guarantee the powers under the Bill. My amendment is not simply to try to add a new power; it is trying to ensure that the power the Minister of State has outlined, the power to specify certain companies or categories of companies, would be used in respect of public contracts. That is very important. We talked about the dangers of disadvantaging. To be clear, when we choose not to put these measures in we are, in fact, specifically disadvantaging companies that do the right thing. If our public procurement does not put a value on best practices or even a requirement to have them, such as a due diligence process for internal reporting of any matters that may be of concern, for example, with regard to how that money is spent, and when we do not have those processes in place and we do not reward or recognise the importance of having those processes in place, we effectively reward those companies that choose not to spend money and that have less overheads as a result. That goes across an entire set of quality criteria. Not having quality criteria that include this criterion, which is a measure of quality, is not the neutral position. Not having that is a disadvantaging of those companies that endeavour to do the right thing and put their resources into best practice and due diligence.

The largest customer in the State, the largest contractor and the most spent on public procurement by any body in the State is the State. We set the tone for what matters and what is expected and for high standards and proper risk management. This is a risk management measure that should be in place in any company that gets a public contract. I note my amendments do not deal with small contracts but with large contracts of over €3 million in public money, which is certainly entering the point of significant amount.

I am glad of some of the points the Minister of State has made and I hope they will be reflected in the public information campaign. However, I am particularly disappointed that amendment No. 8 has not been accepted. I will withdraw amendment No. 7 but I will press amendment No. 8.

Amendment, by leave, withdrawn.

I move amendment No. 8:

In page 14, between lines 12 and 13, to insert the following:

“(6A) In making an order under subsection (4), the Minister shall have regard to the need to ensure that companies performing high value public contracts establish internal reporting channels regardless of the number of employees they have.”.

I second the amendment.

Amendment put and declared lost.

Amendments Nos. 9 to 13, inclusive, are related and may be discussed together. Is that agreed? Agreed.

I move amendment No. 9:

In page 24, between lines 2 and 3, to insert the following:

“(iia) the worker reasonably believes that their own manager or the head of the public body is complicit in the wrongdoing concerned;”.

I second the amendment.

Whistleblowers and civil society groups have been very clear that they oppose the removal of the right to make a disclosure directly to a Minister. It has been strongly argued that there is a danger that this effectively falls out of line with the directive in that it represents a regressive move whereby there is a lessening of rights in a certain area for whistleblowers as a result of this legislation. Whistleblowers and civil society groups have highlighted that under the new section 8 it is proposed that public servants be required to report to their employer in most circumstances, removing the automatic right of public servants to make a disclosure directly to a Minister.

There is a danger whereby disclosures may be captured or disappeared within the hierarchy of an employment system and within the power dynamics of that system when it may be a matter of quite significant national concern that should be allowed to be disclosed directly to a Minister. It dilutes existing legal protections for public servants in terms of prosecution, penalisation or detriment if they have made a disclosure directly to a Minister. The fact that they have made a disclosure directly to a Minister means they may not have the same protections under this Bill. There is a danger therefore not just in terms of the route not being open but also that many people will not be aware of the steps they would have needed to have taken, and people may make what they believe to be a protected disclosure but not have the appropriate protections in place.

Many whistleblowers who are motivated to make a disclosure do so out of public concern and for the public interest. In doing so they should not face a situation where they effectively find themselves excluded from some of the provisions or protections of the legislation. Many of them will never read the legislation. They will simply know that the matter is important and they will decide to inform a Minister. It could be either a Minister directly responsible in that area or it might be the Minister as the senior representative of the Government in a whistleblower's geographical area who the whistleblower knows. They will go to our chosen elected decision makers at the highest level to highlight a matter that may be of public concern.

When they see something that matters in an area of expertise or concern, they want to highlight it. There is a danger that persons who go directly to a Minister, having not gone to an employer, may not activate protections. Transparency International Ireland has highlighted concerns about this section, specifically that it may breach the non-regression clause in Article 25.2 of the 2019 directive and that that marks a step backwards in protections for whistleblowers. Transparency International Ireland has written to the Minister of State on this and has outlined that whistleblowers will continue to report directly to Ministers. That will continue to happen regardless of what is in the legislation because it is established practice and precedent and because, when people make a disclosure, they are not acting as employees. It is not in their job description. They are doing so as citizens. Their awareness of the issue arises because they are workers and they are vulnerable to penalisation because they are workers, but raising the flag of concern is taking a step beyond anything that is required of them in their job. They are doing that as citizens. They go to those they have elected and those who are responsible at the highest level, who were chosen by the public as their public representatives and chosen by the Oireachtas as Governments and Ministers. It makes sense that people would go to a Minister. They will continue to do so but there is a real danger they will not have proper protections and that they will fall between stools so their disclosure does not get processed or a reason is given for why it was not properly accepted.

Amendment No. 9 would insert new criteria where someone can report directly to a Minister in certain situations. I have spoken about the general removal of that clause but these amendments are a result of engagement and listening very closely on Committee Stage. These are constructive proposals to ameliorate the damage of removing that direct line. I am disappointed the Government has not brought its own amendments on these matters because there are a number of practical proposals here, on some of which I thought we had made progress. Amendment No. 9 would simply introduce criteria stating people can report directly to a Minister in situations where they reasonably believe their own manager or the head of a public body is complicit in the wrongdoing. The bar for reporting directly to a Minister in this legislation is insanely high. People can report if they believe the head of a public body is directly involved in the wrongdoing. People working downstream in the HSE may never know the head of the organisation. They may never meet the head of the HSE or have any idea what he or she is doing. Employees in a Department may never know or be aware of the Secretary General, let alone be confident the Secretary General is involved in wrongdoing. What they might know, however, is their own direct manager is involved in wrongdoing or the person to whom they report is complicit in wrongdoing or a matter of public concern. They may be able to see that several layers of management are involved. They are not allowed go to the Minister unless they somehow have proof the head of the organisation is involved. That is too high a bar. These are very large bodies in some cases.

This is a sensible amendment. It simply states people can go to a Minister if their manager or the persons to whom they report are involved. If someone has no personal contact with their manager's manager, how can they have confidence in going to the manager's manager? They may be involved but the person just will not know. If the persons to whom an employee reports are involved in the wrongdoing, the employee should be able to go to a Minister. We should not have this extremely high bar of the head of a public body. If you know there is rot two levels up, you may assume it is further on, whether or not you know it. In that regard, it is too high a bar to limit that exception to the head of a public body. I ask that it be changed to the person's own manager. That fear of penalisation and consequences comes in, especially when reporting on a matter relating to your own manager.

Amendment No. 10 would allow a person to go directly to a Minister that if a person does not feel confident making a report under sections 6, 7 or 8 due to the reasonable fear of penalisation. Such a person may have seen consequences or penalisation for others who sought to flag the issue. They may have seen others lose their jobs because of it. Sometimes it is only after someone has lost his or her job that his or her colleagues learn why that was. If there is a reasonable fear of penalisation, people should be able to go directly to a Minister. This amendment does not remove all the issues but it would make the section less regressive and would give some additional protection to whistleblowers.

Amendments Nos. 11 and 12 relate to worrying, strange and undefined language in this Bill in the caveats around matters of public concern. Amendment No. 11 removes the phrase "an imminent or manifest" from before "danger". Surely if a matter is of danger to the public interest, that should be enough. Why are we adding that it must be imminent? What does imminent mean in this context? It is a case of how near is the comet? Does imminent mean something that will have effect next week, next year, in two years or in five years? Having a bar of imminent and manifest is effectively saying people should not bother the Minister with a matter that is just of danger to the public. It may be a matter that is substantially dangerous to the public. It may be a matter where we would like to get in as early as possible. Does a whistleblower need to wait until it is almost too late before he or she is allowed to raise an issue with the Minister? That is what the legislation says, rather than, as we should do and as is prudent, rewarding and encouraging early action as soon as the danger to the public is recognised and identified.

There are other examples of language in the Bill that is designed to intimidate and discourage persons from making disclosures to Ministers. That is the only way this can be read. It is dissuasive language trying to make people not come to Ministers with disclosures, meaning Ministers can say they do not need to take something on board. One example is the phrase "such as where there is an emergency situation or a risk of irreversible damage". The legislation is saying we are okay with damage. I do not know how this passes the Comptroller and Auditor General's standards as legislation. It is saying that if the issue is something that can be fixed later, even if that might cost money or if there may be casualties to a degree, if it is reversible damage we should let the damage happen and come back afterwards. It is only where it is irreversible damage, even though reversing that damage may have a huge public and human cost, that people can go to the Minister. It is extraordinary we are basically telling people not to bother the Minister with big problems if we can fix them later.

This is really weird language and it should not be in the Bill. I have discussed this and raised it. When the other Minister spoke, he said he did not want to create anything that might result in a chilling effect. This language clearly will. Setting such a high bar really underscores the fact that this section is regressive and in breach of Article 25(2) of the EU directive in its measures.

When this was being discussed, what was highlighted again and again was that there had been a problem in the previous legislation whereby persons reported to the Ministers but there was no clear line as to what the Ministers would then do with those reports. There are other measures in the Bill that address that issue but, to be very clear, the problem was never the fact that persons made disclosures to Ministers but that there was no clear process to be followed afterwards. There is now a clear process.

Most people will make a disclosure to a Minister, the person who is politically responsible and who is their representative on matters of public decision-making. That Minister will then end up sending them a letter to say that he or she has referred their complaint to the protected disclosures commissioner, who will process it and then may send it on. If a person has made a disclosure to a Minister who is geographically nearby, that Minister may send it on to the commissioner who will then send it on to the appropriate Minister. There is a process there.

The problem was always what happens next. It does not mean that every Minister has to deal with disclosures. They can pass them on to the right person or body to be dealt with. However, they should be able to receive it. The problem was never receiving it. There is no case for making it so difficult to report to a Minister. It may well be that the Minister is not the person who processes the report but, as a receiving point, the Minister is a really crucial resource for any person employed as a public servant who cares about the public interest and who wants to raise an issue of danger to the public. To close off and limit that channel in the way this section does is an extraordinarily regressive and unnecessary step. It is dealing with a problem that does not exist because the problem was always what happens next. That is dealt with elsewhere. I am not trying to change that because it is being dealt with elsewhere. I again urge the Minister of State to consider and take on board these amendments.

I want to check that I have covered all of the grouping. Does it end with amendment No. 12 or with No. 13? It ends with amendment No. 13. I have not spoken to No. 13 yet. I will be very brief. This is again a simple amendment. It seeks to ensure that, where a Minister of the Government transmits a report to the protected disclosures commissioner, that Minister will notify the reporting person that he or she has done so. That is again a simple thing about the process of passing reports on. It again clarifies and builds on the fact that we have solved the problem of what happens next. The Bill tries to do that. This would just make sure that reporting persons are aware that this is the new process as to what happens next so that they do not expect the individual Minister to continue to respond regarding the detail of the substantive matter. If the report has been passed on to the protected disclosures commissioner, the whistleblower will be let know that is who they should follow up with.

Amendment No. 9 is interesting in the context of this section. The section provides that a worker may make a report to the relevant Minister if one or more of a list of given conditions are met. It then goes on to talk about the head of the public body. To use the example of a Department, the Secretary General would be in charge. If an assistant secretary has engaged in wrongdoing, is the worker precluded from writing to the Minister? I know the Secretary General is the Accounting Officer and is in charge of the Department but assistant secretaries and principal officers also have roles. Why does the section refer only to the head of the body? It is just a matter of terminology? Is it legalese? Does the head of the Department really mean the full Department? That is not my reading of the section. It is a valid question. It would not make a lot of sense if people who were of the view that their superiors up the line were involved in wrongdoing but had no proof that the Secretary General was involved were not able to write to the Minister. I would like some clarity on that.

I thank the Senators. I will start with amendments Nos. 9 to 12, inclusive. Each of these amendments widens the qualifiers for ministerial disclosure to such an extent as to significantly dilute 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 in the implementation of the Act so far. 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 to either go to the Minister first or to report simultaneously to both their employer and the Minister. This 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 so 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 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. Disclosures will be transmitted to appropriate bodies for assessment and follow up. For these reasons, I am not accepting these amendments.

Amendment No. 13 requires Ministers to notify the reporting person of the transmission of a report to the commissioner. Section 10D(1)(a) already requires that the commissioner issues an acknowledgement when he or she receives the report. This ensures that reporting persons are informed of what has happened to their report and who is taking responsibility for it. As a result, I do not accept this amendment and do not see the need for it.

Article 25(2) of the directive provides that, "The implementation of this Directive shall under no circumstances constitute grounds for a reduction in the level of protection already afforded by Member States in the areas covered by this Directive". This matter was raised by a Senator who was concerned that we might be reducing the protections afforded. In literal terms, this does not outright prevent a member state from reducing the level of protection already afforded but rather provides that the directive shall not "constitute grounds" for such a reduction. In other words, no member state can rely on the directive as a justification for reducing the protection and, in particular, for contending that a greater protection is inconsistent with the directive. However, that is very different from preventing a member state reducing the level of protection for policy reasons, provided no reliance on the directive is cited in that regard.

We are not changing the rules concerning ministerial disclosures because of the directive; we are changing them for the simple reason that this channel is not working as intended in its present form. In many ways, we are strengthening and professionalising the ministerial channel by providing that ministerial disclosures will be referred to an independent expert in the form of the protected disclosures commissioner.

On the question of what the head of a public body is, it is the head of a public body rather than a deputy or the entire organisation.

I have great respect for the Minister of State but his speech is extraordinary. It basically says that we are lowering the protections but are not using the directive to do so. Given Ireland's record on whistleblowers and given that the whole idea is that we are meant to be improving things, delivering a speech that basically admits that we are lowering protections, although we are not using the directive to justify this, and reading out a whole section of the directive to demonstrate that it is okay to lower the protections as long as the directive is not used to do so sends an incredibly bad message, not to mention being a massive contradiction in itself.

Perhaps some self-examination is needed at the Department. It appears to be a case of being allowed to do this versus it being entirely against the whole spirit of what we are supposed to be doing, and against what everybody is saying this legislation is about. This is very surprising to me. I do believe it is lowering the protections but I did not expect this to be acknowledged so clearly.

To be clear, the directive has been used in that the line in terms of encouraging reports to be made in other ways and so forth, which again is in the directive, has been directly quoted as one of the rationales for this section. Again, even that argument does not stand up.

I also note that the directive asked that we would encourage people to report to various other channels. It did not give a mandate for people to discourage. This is a real problem in Ireland. There is a thing in Ireland whereby people do not trust reporting to their managers because their experience has been that it goes horribly wrong. How can we encourage them to be confident to report to their employers or to their managers? How can we build a culture in the public service that encourages that? This would involve, for example, measures around having proper internal channels and having stronger protections against penalisation. Perhaps it might involve three or four high-profile examples where somebody actually blows a whistle and does not have a horrible time. That would be great and it would be encouraging. It might encourage people to come forward to their managers. Instead of trying to encourage people to be confident in using a mechanism that has failed them, we try to discourage them from the mechanism which, as the Minister of State himself has outlined, is exactly what people use.

Is the goal of the legislation for there to be fewer protected disclosures or for there to be more? The goal should be for there to be more so we learn about problems earlier and better, and that people are confident in bringing forward protected disclosures on issues. The main channel people have been using has been clearly stated as the channel of people going to a Minister. I could list off these cases but I do not like to drag individual examples in. The issues that have been highlighted to us by whistleblowers have been very important. They have related to massive amounts of public money. They have related to significant breaches of human rights. They are very important issues. Yet, we are trying to discourage people from using the channel that everybody uses. In his response, the Minister of State did not address the danger that people will still probably use this channel because it is the one that makes sense to people. The idea should be to try to ensure there is no wrong door, and that if a person goes to a Minister, although he or she should go to somebody else, that person gets redirected, not that he or she gets blocked from going to a Minister. There is a danger that people will go to the Minister and, again, the issue will not get treated properly or in a proper way because the person did not go to the employer first. There is also the danger the person may not have access to protections under the Bill. That is a very serious danger.

We know what actually happens and works. We have chosen not to address it. The problem had always been the Minister knowing what to do with that. That was solved elsewhere. There is no solution in this. This is a discouragement of whistleblowing through the channel that is most often used. It is a diminution and a regression in the protections for whistleblowers, as acknowledged, and it is a regressive step in that regard. It is a real pity and I am very surprised because while I did expect that the general principle might not be addressed, it was my expectation that some of the very extreme language around "imminent" and "irreversible" would have been addressed. I will press the amendment.

Amendment put and declared lost.

I move amendment No. 10:

In page 24, between lines 2 and 3, to insert the following:

“(iia) the worker did not feel confident to make a report under section 6, 7 or 8 due to a reasonable fear of penalisation;”.

I second the amendment.

Amendment put and declared lost.

I move amendment No. 11:

In page 24, line 4, to delete “an imminent or manifest” and substitute “a”.

I second the amendment.

Amendment put and declared lost.

I move amendment No. 12:

In page 24, lines 5 and 6, to delete “, such as where there is an emergency situation or a risk of irreversible damage”.

I second the amendment.

Amendment put and declared lost.

A valid point was made on amendment No. 13 so I will not move that.

Amendment No. 13 not moved.

I move amendment No. 14:

In page 33, between lines 30 and 31, to insert the following:

“(15A) Where an investigation into a protected disclosure received by the Commissioner exceeds 24 months in length, the Commissioner shall notify the reporting person the reasons why the investigation has exceeded this period of time.”

I second the amendment.

Amendment No. 14 is about timeliness provision where an investigation into a protected disclosure has been received by the commissioner. I am trying to ensure we do not just have the initial communication or that where ongoing communication is being processed, we do not have the processes dragging on forever over extremely long periods of time. These periods of time can cause quite a lot of distress, concern and anxiety for whistleblowers. The amendment tries to ensure a time limit. It recognises this may not always be applicable and so it provides for when a time limit cannot be met. It proposes that going beyond 24 months would be the exception rather than any kind of rule.

Amendment No. 14 provides that, "Where an investigation into a protected disclosure received by the Commissioner exceeds 24 months in length, the Commissioner shall notify the reporting person the reasons why the investigation has exceeded this period of time.” There is welcome provision in the legislation around interim feedback. We know, however, that the problem is that getting interim feedback every few years for a decade can for many people make it feel as though their life is a little bit suspended. Investigations can last for years and sometimes they can be prolonged for years. Sometimes investigations can be obstructed, which makes them last for years. It puts whistleblowers through a lot of trauma in many cases. It is important that when an investigation goes on for longer than two years, there would be an explanation as to why that is the case. This is a measure designed to discourage a long time period. It recognises it may need to happen in some investigations but it is trying to push that to be an exception. It is trying to send a signal that it is expected that most investigations should be concluded within 24 months. I believe this two-year period is reasonable in most cases.

I am not accepting this amendment because I do not see the necessity for it. There is already a provision in section 10C(7)(d) for a reporting person to request and obtain further feedback on the actions taken or envisaged to be taken in response to his or her report. It is inevitable that if a report involves a matter of such complexity that follow-up is protracted, the feedback would include an explanation as to why the process is taking so long. There are similar provisions for further feedback in four other sections: 6A(1)(f), 7A(1)(e), 10D(7)(d) and 10E(1)(e). I do not see the necessity of this provision given these existing provisions in the legislation. I ask the Senator to withdraw the amendment.

I would have preferred my specific provision on the time period and final closure, but I will withdraw my amendment pending how the use of those clauses work out, which the Minister has outlined. It would have been my preference to have a clear time period.

Amendment, by leave, withdrawn.

I move amendment No. 15:

In page 50, between lines 32 and 33, to insert the following:

“(2) The Principal Act is amended by the insertion of the following section after section 12:

“Protection of reporting persons

12A. For the avoidance of doubt and without prejudice to natural justice, any investigation carried out under this Act shall not involve a person named in a disclosure of a relevant wrongdoing, save where that person is required to provide information or testimony in the course of such an investigation.”.”.

I am thinking of one case, and I believe there have been others, whereby the persons about whom a disclosure has been made are involved in the investigation. They may be managers or employers engaged in wrongful action. In a Department, they would often be managers or senior managers. They have been involved in the investigation of the matter or, in one case I know of, one such person was required to sign off on payment for penalisation. These are the persons about whom the disclosures were made and who had been engaged in wrongdoing. It is worrying that we sometimes see this. It is one of the reasons people often go, especially since we do not have provisions to go round in the Bill, to Ministers. They know their senior managers are not to be trusted on the matter. In this case, they may go to the commissioner and so forth but we do not want that the commissioner then sends it over to the Department and it somehow ends up back on the desk of the person it is about. If a person is named in a protected disclosure, that person should not have any power in the investigation of that disclosure. It is a basic but important point. If it cannot be addressed through this amendment, I urge that it be addressed through guidelines or other provisions in the Bill. That is a danger and has occurred in the investigation of matters and in persons seeking compensation for penalisation. This is one of the biggest fears people have in making a protected disclosure and it needs to be clearly addressed.

I second the amendment.

Section 6A(1)(c), as inserted by section 9 of the Bill, provides that persons designated to receive and follow up shall be impartial. The statutory guidance we will issue in the wake of the Bill’s enactment can and will provide further elaboration on what constitutes impartiality in this context.

I do not see the need for this additional provision and it could be unworkable in very small organisations with a handful of employees. The only way such an organisation could meet this requirement would be to procure an external investigator, which could be potentially disproportionate if the matter reported was relatively minor. As a result, I do not accept this amendment.

The Minister has indicated he will address it in terms of the definition of "impartiality", and it will be important to be clear in that regard, even in a small organisation. If the case involves a small organisation where three or four persons are named, in certain cases an external investigator may be required, but I appreciate that others may be named but not be the core focus of the action in a small organisation. This matter should be clearly addressed and, as well as addressing the definition of "impartiality", I urge that assurance on the matter be reflected in the public information campaigns. I keep coming back to those. I cannot overemphasise the well-earned lack of trust and damage to trust people have given the incredibly poor treatment of whistleblowers in Ireland. That is why each point needs to be given and people need to know, if they make a complaint about their manager, that manager will not be deciding on the complaint. I urge that that be reflected not just in terms of investigation but also in terms of any processing that may be required relating to payments around penalisation. It has come up in that matter as well.

I will withdraw the amendment but will engage with the Minister on the issue of impartiality.

Amendment, by leave, withdrawn.

Amendment No. 16 has been ruled out of order in accordance with Standing Order 41 as having the potential to impose a charge on the Revenue.

Amendment No. 16 not moved.

I move amendment No. 17:

In page 57, between lines 34 and 35, to insert the following:

“Public information campaign

31. 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.”.

Amendment No. 16 being ruled out of order is a concern because we have a complete imbalance. One of the only serious penalties outlined here is that people face a threat of prosecution if they give false information. Determining what is knowingly giving false information will be difficult because people hear information and then hear other information. People are sometimes fed information which they believe to be true. There may be contradictions in terms of a whistleblower in that, having raised an issue, other issues may be brought to them. Sometimes, people make a disclosure about three issues which are true and correct and one which may not be correct but which they have added in because they have come to believe that anything is possible in their organisation. They may do so in good faith.

There is the danger of a chill effect in the potential creation of a case for prosecution against a whistleblower accused of knowingly using false information, yet there is no equivalent threat of prosecution for a person who gives false information in respect of the whistleblower. There are measures on obstructing an investigation but false information in respect of a whistleblower is not subject to an equivalent measure. That is an inequity. We have to be careful. Measures in this Bill linger from an old Act and which applies to everything in Ireland where we treat the person raising the alarm as the problem or danger. It reminds me of birth information tracing, where the person seeking the information was the difficult person to be managed. There are a litany of situations where incredibly damaging false information has been put out about whistleblowers. That should be signalled as being as strong a concern in this Bill as the equivalent.

Amendment No. 17 provides that the Minister will, after the Bill has passed, "hold an accessible public information campaign in respect of the role of whistleblow[ers] in the advancement of the public good ... [the ways in] which someone may make a protected disclosure and the supports which they may avail" of when and after making a disclosure. This is a very important recommendation from the Irish Council of Civil Liberties and it was a key recommendation from our committee's pre-legislative scrutiny of the Bill. It is important across this House that we know the importance of whistleblowing and the public service whistleblowers have given the country, often at great personal and professional cost. We need to make sure the public are aware of this contribution, know how to make a disclosure, are, most important, empowered and encouraged when they see wrongdoing to report it, and know they will be supported and protected in doing so.

I have outlined over the course of this debate a number of factors that need to be reflected in that public information campaign. The core one is that this goes against a strong culture against speaking out on these issues. This is not somebody taking vindictive actions; it is not mean. It is somebody speaking for the public good and is a contribution to that good. We should highlight the benefits accrued to the State, sometimes difficult benefits which involve facing up to problems and bad practices, having to admit we are wrong and having to change.

That is a good process for the State or a public body to undergo. It is not just that these people are doing public service but that it is good practice for a public body, company or any other body affected by this legislation to hear the bad things, face them and act upon them. That is a double layer. Not only does it highlight the power and importance of whistleblowers, protect them and give them assurances, despite the horrible record we have in this State, but it also says that the State has grown up and recognises there is a value in knowing one is doing a wrong thing and fixing it.

A public information campaign will be crucial, especially as some of the matters I have highlighted throughout the Bill are not clearly enough enunciated. Some of the assurances I would have liked to have been built into this legislation are not given. For this reason, the public information campaign will have a heavier load to carry.

I second the amendment.

I agree that an information campaign is crucial. The joint committee's pre-legislative scrutiny report recommended this and it was discussed on Committee Stage. We fully agree that it is very important that people understand their new rights, that we must effect a cultural shift in the treatment of people who are whistleblowers and that they are not denigrated as informers.

My officials are exploring the most effective way to raise awareness of the new legislation and how an information campaign should be targeted. A number of options are being explored, including online awareness raising, the use of social media, the creation of information packs and targeted engagement with stakeholders through seminars and webinars. This is in addition to the work being done to progress the statutory guidance provided for in the legislation. However, as discussed, the inclusion of a legislative amendment in this regard is unnecessary and disproportionate. I will not accept the amendment.

I support Senator Higgins on the importance of the information campaign being clear and explanatory. The Minister of State made a very pertinent point when he used the word "informer". We must move away from that perception and mindset. The Minister of State is very open-minded but I have a concern. I do not have a fraction of the knowledge of Senator Higgins but I have experience of meeting people who have been involved in different organisations. I appreciate the Minister is trying to change the culture but I am a little worried about the information campaign. I understand and appreciate that the legislative format is not the way to go. However, if we consider how far we have come in encouraging people to come forward, it is important to ensure that the information campaign makes this easy and accessible. I hope we will do that because it is important that we change the culture and behaviour and treat people with respect. We treat people with respect now but that was not always the case.

Senator Higgins made a couple of pertinent points about the information campaign and changing perception. There is an element of reflecting on what she has said, which I support. I know the Minister of State has replied.

I thank Senator Buttimer for picking up on an important aspect of the language in my amendment, namely, accessibility.

It is worth noting that not all protected disclosures are made by lawyers or people who have read the legislation. In some cases, the person may not even be aware of the legislation. The reason I regret that the amendments concerning managers were not accepted is that it is often people at a lower level in organisations who have a strong personal ethical sense. That comes at every level and there have been cases involving cleaning, caring or catering staff. People who are on the front line of service delivery may become aware of very significant issues around practices that have significant implications for the wider operation of an organisation. There are lots of different ways and means. The determinant factor seems to be that people have a strong ethical sense of what is good practice. It should not be something that becomes only accessible for those who can seek legal advice or have access to persons who can help them navigate the legislation. We must ensure this legislation is made accessible and clear. It is not enough that it would be digital only because 40% of persons in Ireland do not have access to basic digital skills. It is important, therefore, that people can get this information from a Citizens Information centre and elsewhere. The information must be clear and widely accessible.

The Minister of State indicated there will be an information campaign but he will not accept the amendment. When designing the campaign I encourage him to consider engaging with the civil society organisations I mentioned and the Oireachtas Joint Committee on Finance, Public Expenditure and Reform, and Taoiseach. As he will be aware, the committee has taken a very strong interest in this area. This was an important recommendation made by the committee in its pre-legislative scrutiny. Members of the committee would appreciate an opportunity to have an input into the public information campaign.

Accessibility, including language accessibility, is very important and fundamental. It is important that the campaign is not framed in such a way that it sets out what people are allowed to do and how they can make a disclosure. It must be framed in terms of the public good and the desire of organisations and public bodies to be informed when there is a problem. That is important in shifting mindsets and takes the focus off the individual.

That is why people should be allowed to make an anonymous disclosure and focus on where it should be, which is on the subject matter that is being raised. I look forward to engaging with the Minister of State, even if he cannot support my amendment.

Amendment put and declared lost.
Bill received for final consideration.

When is it proposed to take Fifth Stage?

Question, "That the Bill do now pass", put and agreed to.
Cuireadh an Seanad ar fionraí ar 11.18 a.m. agus cuireadh tús leis arís ar meán lae.
Sitting suspended at 11.18 a.m. and resumed at 12 noon.
Top
Share