We will proceed now with Committee Stage consideration of the Protected Disclosures (Amendment) Bill 2022. I welcome the Minister and his officials and I remind members of the note on privilege. I invite the Minister to make an opening statement if he so wishes or, alternatively, we can commence consideration of the Bill straight away?
Protected Disclosures (Amendment) Bill 2022: Committee Stage
I welcome commencement of consideration of the Bill on Committee Stage and I thank the committee and the Chairman for facilitating this. We had a very good discussion on Second Stage in the House and there is broad agreement on the Bill. A number of amendments have been put down by others with a view to improving the Bill and I also have a significant number of amendments. I have no doubt that we will have further changes on Report Stage in the Dáil.
In essence, the purpose of the Bill is to transpose the 2019 EU directive on the protection of persons who report breaches of EU law and provides for a set of minimum standards for the protection of whistleblowers across the Union. It amends Ireland's existing national whistleblower protection law, the Protected Disclosures Act 2014, to give effect to the provisions of the directive and it also goes beyond that. We are not just transposing the directive but we are providing for the establishment of an office of the protected disclosures commissioner in the Office of the Ombudsman. I look forward to a good discussion today on committee stage and, hopefully, we can make progress on the Bill.
Does Deputy Farrell like to make a contribution before we commence?
This has been a very interesting process for us all. We will all remember what those people who came before our committee had to say with their own lived and personal experiences and how it had impacted them. There is strengthening now in the making of protected disclosures and I and my colleague, Deputy Buckley, have also tabled amendments to the Bill. We are happy to do anything that can strengthen and benefit those people who are going forward and making protected disclosures but we also have to think of those who have made previous protected disclosures and who have suffered greatly as a result. We cannot have a situation where people are left behind and we need to ensure that there are always greater protections for whistleblowers because without whistleblowers in the past, there would have been many horrific situations that we would not have been aware of. We need to commend all those people who have come forward.
Sections 1 to 4, inclusive, agreed to.
SECTION 5
Question proposed: "That section 5 stand part of the Bill."
Could the Minister speak to this section, please?
Of course I can. The section is a standard provision concerning the making of any orders and regulations by the Minister under this legislation and for said orders and regulations to be laid before the Oireachtas in accordance with established practice. It is procedural in nature.
I thank the Minister.
Section 5 agreed to.
SECTION 6
Amendments Nos. 1 and 2, in the name of the Minister, are related and will be discussed together. I call the Minister to speak now.
I move amendment No. 1:
In page 12, to delete line 11.
I will take amendments Nos.1 and 2 together. This is a technical amendment to section 6(7) of the principal Act to remove the reference to subsection 7A of section 5 of the principal Act as it is to be repealed by section 3 of the Bill. 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 trades secrets directive, TSD. The TSD required that the person who made a protected disclosure could only disclose information deemed to be a trade secret if they acted for the purpose of protecting the public interest. Article 21.7 of the whistleblowing directive clarifies the legal position vis-à-vis the TSD on the one hand, and the protection of whistleblowers on the other, 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 is being repealed. This amendment tidies up the principal Act by removing a cross-reference to section 5(7A) that will be rendered redundant by its repeal by section 3. These are, therefore, technical amendments.
Amendment agreed to.
I move amendment No. 2:
In page 12, line 22, to delete “access.”.” and substitute the following:
“access.”,
and
(d) in subsection (7), by the substitution of “The motivation” for “Subject to subsection (7A), the motivation”.”.
Amendment agreed to.
Section 6, as amended,agreed to.
Section 7 agreed to.
SECTION 8
Amendments Nos. 3 and 4 are related and will be discussed together.
I move amendment No. 3:
In page 13, to delete lines 6 to 11 and substitute the following:
“ “(3) For the purposes of enabling the making of reports, all employers shall establish, maintain and operate internal reporting channels and
procedures for the making of such reports and for follow-up (in this Act referred to as ‘internal reporting channels and procedures’).”.
The amendment proposes to delete lines 6 to 11 and to substitute: "For the purposes of enabling the making of reports, all employers shall establish, maintain and operate internal reporting channels and procedures for the making of such reports and for follow-up...".
To make it clear, this particular amendment is in respect of the exclusion of companies with less than 50 employees. I do not believe that the reporting requirements of this Bill are particularly onerous or that they place a significant administrative burden on companies. I would be concerned that removing companies with less than 50 employees could cause greater risks. Specifically, these kinds of companies can be dealing with very large sums of money but may have very few employees.
They might even be serving clients who could potentially be engaging in abuse or regulatory avoidance. I am thinking of the Cum-Ex scandal, the revelations in the Panama Papers, the Russian connected special purpose vehicles using the IFSC and so on. We have a situation where there could be large amounts of money and it could have a large impact but it would relate to firms with very small numbers of employees. Therefore, it is important to include it for all firms and not limit it to more than 50 employees since some of these firms may have small numbers of employees but deal with large sums of money.
I agree with Deputy Farrell. I have dealt with many protected disclosures and have raised some in the House with the Minister. There are smaller companies with perhaps eight or 12 employees that have major contracts, with the HSE for example. We said at the outset that we would try to be inclusive and to protect everybody. I worry that if we exclude smaller companies, people will slip through the cracks and we will be back here again in 12 months with an amendment Bill trying to get these things resolved.
I thank Deputies Farrell and Buckley for raising this issue and for their amendments. This is something I have considered carefully and discussed with the officials at length. Before setting out the reasons I do not propose to 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 right of workers to report wrongdoing to their employer. Therefore, there is no diminution here of the rights of people to make a protected disclosure.
Section 6(1) of the Protected Disclosures Act provides that a worker is protected if they report a relevant wrongdoing to their employer. This applies irrespective of the size of the organisation they work for and the Bill does not change this. Therefore, regardless of whether their employer has a formal reporting channel or not, all workers, public and private, remain entitled to all of the protections of the legislation. That is a fundamental point worth remembering. Workers will also have access to supports such as the Transparency International Ireland Speak Up Helpline to help them in understanding 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 estimates that the initial set-up costs for a typical small to medium enterprise as being €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 and with inflation the true cost may now be higher. This is an issue that I have probed myself to try to understand the costs that are involved in setting up these channels and maintaining them.
Implementing the requirements is not a simple matter of printing a generic policy document and posting it on a wall in an office. 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 to appoint and train dedicated staff to operate these channels. It will require the deployment of dedicated, separate and secure channels such as mail boxes, encrypted emails or webforms and dedicated phone lines and voice messaging systems. All of these will impose costs on organisations. Blanket imposition of the requirement to have internal channels to all employers would therefore 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 very high inflation, and unworkable in many situations, particularly for micro enterprises.
It is hard to see what benefit there is in imposing these elaborate requirements on very small local retailers such as the local sweet shop or on a plumber and his apprentice. It could also create a compliance burden for some voluntary or member-led organisations with a small cohort of employees, particularly in the areas of sport, such as GAA clubs, golf clubs, rugby clubs and heritage and the arts.
Furthermore, article 8.7 of the directive provides that member states can only lower the threshold of 50 employees if they carry out a risk assessment and notify the European Commission accordingly. The directive sets the floor at 50. It is open to the member state to go below that but it would require the carrying out of a risk assessment. This has not been done and, therefore, I cannot accept this amendment.
Section 8, by way of the insertion of a new subsection, provides for a regulation-making power to lower or remove the threshold for certain firms or categories of firms subject to a risk assessment and a public consultation. Therefore, there is an enabling provision within the Bill that would empower the Minister to bring in a regulation that lowers the threshold. I accept that there are some sectors involved in certain high-risk activities, as the Deputies have raised, which could benefit from being subject to this requirement. Indeed, the directive and the Bill already provide that the threshold does not apply in the areas of financial services, aviation safety and oil and gas safety, for example, and, of course, there has never been a threshold in the public sector. It only applies in the private sector.
A number of submissions from regulators during the public consultation on the general scheme of the Bill identified other areas where there may be benefits in lowering or abolishing the threshold. For example, ComReg suggested that operators of premium rate phone lines should be put within the scope of this requirement. A number of suggestions were also made at the pre-legislative scrutiny hearings regarding certain accountancy firms and some technology firms. We recognise there may be some merit in that and that is why we have provided the enabling provision in the Bill that is before the committee today.
I understand the Minister's perspective on this and where he is coming from. I still have concerns and think that it would be beneficial to lower the threshold. I think it is still important to make this amendment. We are coming at it from two different points of view. I take the Minister's points on board but I am still concerned, so I will press the amendment.
Amendment put:
The Committee divided: Tá, 3; Níl, 6.
Tá
- Doherty, Pearse.
- Farrell, Mairéad.
- Tóibín, Peadar.
Níl
- Durkan, Bernard J.
- Farrell, Alan.
- Matthews, Steven.
- McGrath, Michael.
- McGuinness, John.
- O'Sullivan, Pádraig.
Amendment declared lost.
Amendment No. 4 not moved.
I move amendment No. 5:
In page 15, to delete line 4 and substitute the following:
"(11) Subject to subsection (12), section 6A shall apply to a report made to an employer.
(12) Where-
(a) a worker, who is or was an employee of a public body, makes a disclosure of relevant information to the public body, in the manner specified in this section, before the coming into operation of section 8 of the Protected Disclosures (Amendment) Act 2022, and
(b) the public body-
(i) has established procedures under section 21 (being that section as it stood before the coming into operation of section 28 of the Protected Disclosures (Amendment) Act 2022), and
(ii) has not completed its consideration of such disclosure in accordance with those procedures before the coming into operation of the said section 8,
then, where the worker so requests in writing, the public body shall, no later than 3 months after the date of such request, provide information to the worker on any actions taken or to be taken by that public body in relation to the relevant information concerned."."
In dealing with the amendment, I have an opportunity to update the committee on the work we are doing on retrospective application of the Bill. This was a key issue raised in the course of pre-legislative discussion and it also was raised by many speakers on Second Stage in the Dáil. I gave a commitment to look further into the issue.
Amendment No. 5 provides that where persons who are employed in a public body have made a protected disclosure prior to this Bill coming into force, they shall be entitled to request feedback from their employer as to what action was taken on foot of their report. This implements recommendation No. 27 of the committee's pre-legislative scrutiny report. Following discussions with the Attorney General, we have concluded that it will be possible to provide for retrospective application of the Bill for workers who have reported prior to this legislation's enactment but have suffered retaliation after enactment. As I said, this is in line with the recommendation in the committee's pre-legislative scrutiny report. In addition, I have asked the Attorney General to see whether we can go further in this regard, particularly to consider whether retrospection might be possible for workers who have both reported and suffered penalisation before this Bill is enacted but have not yet applied to the Workplace Relations Commission, WRC, or the courts for protection. This is a particularly difficult legal question and the Attorney General has asked for more time to consider its implications.
Accordingly, I have decided to defer proposals for amendments in this regard to Report Stage in order that we have the opportunity to examine and discuss the full suite of possible enhancements that can be made to the legislation. As I said, I am committed to providing for retrospection for workers who have reported before enactment but suffered penalisation after enactment, which is what the committee sought in its pre-legislative scrutiny recommendations. In addition, I am anxious to go further than that. The delay in bringing forward amendments, which we will do on Report Stage, is to see whether we can, in fact, go further than the committee has recommended. I have no doubt we will discuss this issue further on Report Stage. I want to ensure we can stretch the boundaries of what is possible in regard to the retrospective application of this Bill to persons who have made disclosures, who may well have suffered detriment and penalisation and who are not satisfied with the outcome of the process in which they may have been involved. It is a complex area and retrospective application of legislation is always difficult. I have conveyed my view to the Attorney General that this is a very important issue on which I would like to make progress. He is going to do all he can to see whether that is possible and, for that purpose, he has asked for time. I expect to bring forward additional amendments on the retrospective application issue on Report Stage.
Taking on board the views of all the people who have contacted us, we all can be in agreement that it is extremely important that the legislation be retrospective.
We know from the discussions we have had here and, as I mentioned, the harrowing stories people have, how important it is for this to be retrospective and how much people have lost as a result of doing work in the interest of the public good. I am happy that we will discuss it further on Report Stage and see if that can be moved on. I understand that the Minister has stated he will engage further with the Attorney General but anything that can be done to ensure it is retrospective needs to be done because it is so important that we protect those people who did what they did and who put themselves, their families and their livelihoods on the line to blow a whistle and make those protected disclosures.
I understand from where the Minister is coming. It is welcome that he is open to discussing the matter further down the line, with the possibility of changes. We dealt with a similar issue at the Committee on Public Petitions in the context of legacy and so on. Through agreement and amendments in that regard, we set it up. It was agreed that we could not be restrictive in respect of the retrospective timeline because that committee is the last stop for people who need to air their views or concerns. I welcome that the Minister is open to change but I point out that it has already been done at the Committee on Public Petitions through a proper procedure and vote. I welcome that.
I will add my voice on this matter before we move on. There is a significant issue here. I do not know how the Minister will get around it legally but effort has to be made by all concerned to recognise the problem we now have. There are cases currently going through a settlement process in which a certain amount of bullying and intimidation is being applied to get an outcome. The protected disclosure element is not being recognised by Departments. These are Departments that are supposed to be leading in terms of legislation and the application of law. That is quite frightening because it is the State allowing this to happen and paying the legal fees to allow it to happen. That is wrong. It is an abuse of power and taxpayers' money.
There are cases that have been before various Departments for years. I refer to the episode of "RTÉ Investigates" to be broadcast tonight. Some cases have been with that Department for a considerable time but have not been resolved. They are all being dealt with internally. That is wrong. I will be looking to the next step the Minister will take to determine how all those cases will be dealt with. They have been stalled not by the whistleblowers but by the State itself using taxpayers' money to achieve the outcome it wants and to block in a very considerable way the whistleblowers and the advancing of the cases being made by those whistleblowers. That is frightening.
The Minister heads up the Department of Public Expenditure and Reform. The committee previously asked how many cases have been settled and for how much by the various Departments that ended up on the steps of the courthouse. We asked how many of those cases had a confidentiality clause forced on the whistleblower in the context of a settlement. That is a significant piece of information that I would like to see as we go to the next Stage of analysing this legislation. I would also like to know how many Ministers, not just in the current Government but also in previous Governments, received protected disclosures but sat on them. How many Departments have not processed within the legal framework a protected disclosure? The Committee of Public Accounts recently received correspondence regarding a whistleblower and named the whistleblower. That is against the law and the legislation.
As a State, we seem to be presiding over an abuse of the current legislation and of taxpayers' money. Departments seem to be sitting on cases and refusing to move on them for reasons not known to anyone. The best trick in the book is to say to anyone inquiring about a whistleblower and the outcome of the case that it is being referred to the Garda. There are cases in respect of which that statement was made in defence of the status of the case but the response of the Garda was that no case had been referred to it. I do not think that is good enough. The Minister and the Government have to take note of what is happening here. We have to get to the bottom of the issues that all present have raised in the Chamber, at committee meetings and so on. While this legislation may provide for the future, the manner in which the Minister addresses the retrospective nature of this is what we will be judged on because those people who made protected disclosures have been beaten up by the State and their lives have been ruined. They have been named here. They have come before the committee. There have been cases where the Workplace Relations Commission, WRC, has made a recommendation but the Department continues to try to defend itself with taxpayers' money. How sick is that? How wrong is it? When it comes to this particular debate, I certainly will contribute more fully. We have named names here. I will not do so again today. I ask the Minister to check with the various Departments on the questions I have raised and provide some sort of answers as we debate this on next Stage of the Bill.
As regards the cases that remain to be dealt with, I am not saying all of them will be successful but I am saying to give them a chance. These people are not making things up. It may not be a sound piece of evidence that is being received but most of the whistleblowers I have encountered have come forward in good faith to try to improve the lot of the agency, Department or whatever it might be and they have been treated disgracefully by the State. I really hope we have a fuller debate on this matter, with answers to those questions as we reach that point. Do I take it the amendment is not being pursued now?
This amendment is being pursued but it is not the totality of what we are going to do. I will revert to it on Report Stage and add to it.
The amendment before us is a retrospective provision. It is a start but it does not capture all the retrospective issues and the examples the Chairman and colleagues have raised. I know that for many people, this is the kernel of the Bill. It is about the ability to apply the additional protections retrospectively to people who have already suffered detriment. These are whistleblowers who have done the State immeasurable service. I am anxious to go as far as we possibly can within the legal limits to accommodate that.
That is the political commitment I am giving. The Chairman asked that every effort be made. I assure him that every effort is being made and will be made until this Bill has completed its journey to make it as robust as we can.
The amendment we are discussing provides that where a person who is employed in a public body has made a protected disclosure prior to this Bill coming into force, they shall be entitled to request feedback from their employer as to what action has been taken on foot of their report. That was the specific recommendation in the committee's pre-legislative scrutiny report. We will be able to go further. We have agreed with the Attorney General that it will be possible to provide for retrospective application of the Bill for workers who have reported prior to the enactment of the legislation but have suffered retaliation after enactment. This is in line with the committee's recommendation in the report. We hope to go further than that.
I have asked the Attorney General to look at retrospection for workers who have both reported a protected disclosure before the Bill is enacted and suffered penalisation, but have not yet applied to the WRC or the courts for protection. I think many people find themselves in that category. If they have applied and are in a process with the WRC or have a case before the courts, the Bill will not step in the way of that because they are advanced in the process. This lines up with the example the Chairman gave a while ago. If any new penalisation takes place, even if it relates to an old case, somebody is entitled to make a new protected disclosure. The content of what they are disclosing should be different and new so that it is not the same as the one made under the old legislation. If any new penalisation is taking place, for example in the resolution of their case, that could constitute a basis for a new protected disclosure that would come fully within the ambit of the new legislation once enacted.
We are teasing out all those issues with the Attorney General at the moment. The amendment is a starting point and it establishes that there would be retrospection in certain instances. We are looking to stretch that as far as we can in line with the issues that the Chairman and Deputies Farrell and Buckley, in particular, have raised.
Amendment agreed to.
Section 8, as amended, agreed to.
SECTION 9
Amendments Nos. 6, 7, 16 and 17 are related and may be discussed together.
I move amendment No. 6:
In page 15, to delete line 7.
These are technical amendments to delete the titles of sections 6A and 7A. The section headings to sections 9 and 11 will be the section headings of the new sections 6A and 7A if a consolidated version of the Act of 2014 is published, for example if proposed by the Law Reform Commission. This is the correct drafting convention. Keeping the titles as they are would result in a superfluous repetition of the titles in a consolidated version. This amendment is, therefore, to correct a drafting oversight.
These are technical. We have no issue.
Amendment agreed to.
I move amendment No. 7:
In page 15, line 8, to delete “6A. (1) Internal” and substitute “ “6A. (1) Internal”.
Amendment agreed to.
Amendments Nos. 8 to 10, inclusive, 18 to 21, inclusive, 34 to 36, inclusive, and 40 to 48, inclusive, are related and may be discussed together.
I move amendment No. 8:
In page 16, between lines 11 and 12, to insert the following:
“(f) the provision to the reporting person, where he or she so requests in writing, of further feedback at intervals of 3 months until such time as the procedure relating to the report concerned is closed, the first such period of 3 months commencing on the date on which feedback is provided to the reporting person under paragraph (e);”.
These amendments provide that a reporting person can, on request, seek further feedback at three-month intervals until the procedure relating to the report has concluded. This will apply to employers, prescribed persons and the commissioner. This implements recommendations 26 and 48 of the committee's pre-legislative scrutiny report.
Amendments Nos. 8, 18, 34, 41 and 45 provide for the insertion of the relevant text that provides for the provision of further feedback so that it applies to employers in respect of internal reports, prescribed persons in respect of external reports, the protected disclosures commissioner in respect of both external reports and reports to Ministers and to any suitable persons the commissioner transmits a report to.
The remaining amendments - Nos. 9, 10, 19 to 21, inclusive, 35, 36, 40, 42 to 44, inclusive, and 46 to 48, inclusive - are a series of technical amendments to reflect changes to the numbering of various provisions arising from the inclusion of the new provision. They are consequential to the provision I just described.
We have no issue with these.
Amendment agreed to.
I move amendment No. 9:
In page 16, line 12, to delete “(f) the provision” and substitute “(g) the provision”.
Amendment agreed to.
I move amendment No. 10:
In page 16, line 32, to delete “subsection (1)(f)(ii)” and substitute “subsection (1)(g)(ii)”.
Amendment agreed to.
Section 9, as amended, agreed to.
SECTION 10
Amendments Nos. 11 to 15, inclusive, are related and may be discussed together.
I move amendment No. 11:
In page 17, to delete lines 11 to 15 and substitute the following:
“(ii) in paragraph (b)(i), by the substitution of “in the case of a disclosure made to a person prescribed under subsection (2)(a), that the relevant wrongdoing” for “that the relevant wrongdoing”,”.
Amendment No. 11 provides for the retention of the "substantially true" test for making a report to a prescribed person under section 7 of the principal Act. This was proposed under recommendation 28 of the pre-legislative scrutiny report. I have considered the legal arguments made in this regard by the committee with the Attorney General and we are in agreement that retaining this provision as it stands in the 2014 Act provides a stronger protection than is required under the directive. Therefore, and in accordance with the non-regression clause at Article 25 of the directive, the conditions in the 2014 Act will remain unchanged if this amendment is accepted.
Amendments Nos. 12 to 15, inclusive, are technical amendments to tidy up the numbering of section 7 of the principal Act, as amended, arising from the repeal of section 7(3) by section 3 of the Bill. We are accepting the committee's view that the removal of the word "substantially" would have weakened the Bill.
Amendment agreed to.
I move amendment No. 12:
In page 17, line 17, to delete “subsection (3)” and substitute “subsection (2)”.
Amendment agreed to.
I move amendment No. 13:
In page 17, line 18, to delete “(4) For” and substitute “(2A) For”.
Amendment agreed to.
I move amendment No. 14:
In page 17, line 24, to delete “(5) Section 7A” and substitute “(2B) Section 7A”.
Amendment agreed to.
I move amendment No. 15:
In page 17, line 25, to delete “(6) Section 10B” and substitute “(2C) Section 10B”.
Amendment agreed to.
Section 10, as amended, agreed to.
SECTION 11
I move amendment No. 16:
In page 17, to delete line 28.
Amendment agreed to.
I move amendment No. 17:
In page 17, line 29, to delete “7A. (1) External” and substitute “ “7A. (1) External”.
Amendment agreed to.
I move amendment No. 18:
In page 19, after line 41, to insert the following:
“(e) the provision to the reporting person, where he or she so requests in writing, of further feedback at intervals of 3 months until such time as the procedure relating to the report concerned is closed, the first such period of 3 months commencing on the date on which feedback is provided to the reporting person under paragraph (c);”.
Amendment agreed to.
I move amendment No. 19:
In page 20, line 1, to delete “(e) save” and substitute “(f) save”.
Amendment agreed to.
I move amendment No. 20:
In page 20, line 5, to delete “(f) where” and substitute “(g) where”.
Amendment agreed to.
I move amendment No. 21:
In page 20, line 22, to delete “Subsection (1)(e)” and substitute “Subsection (1)(f)”.
Amendment agreed to.
Section 11, as amended, agreed to.
SECTION 12
I move amendment No. 22:
In page 23, to delete lines 15 to 29.
It is no secret that when people blow the whistle what generally ensues is a long protracted process that can take years. We have discussed the real-life impact it can have on people and their families. There can also be a reflexive reaction on the part of the employer to circle the waggons. We have seen cases where they have cast aspersions on the motivation of the whistleblower and penalised them in the hope that they move on from that process.
Going externally to the media or the relevant Minister is often one way a whistleblower who felt those administrative barriers were being put in their way can try to circumvent this process, bring attention to the wrongdoing and, therefore, put pressure for it to be resolved. We have major concerns with this new restrictive conditionality that is applied to going externally. We feel it is not improving the process of justice. While this is not directed at the Minister, Deputy Michael McGrath, in certain situations it could take a Minister off the hook for inaction.
Some of the witnesses who appeared before the committee outlined serious concerns over corruption and years later their cases remain unresolved.
It has taken them a long time and that has had an impact. The concern about the delays is that many people will end up giving up before the wrongdoing is revealed. The committee recommended that this conditionality be removed. If I recall correctly, one of the experts who appeared at the committee believed it was quite regressive, hence the reason we have submitted our amendment.
I concur with Deputy Mairéad Farrell. Again, my experience, even in the previous Dáil, was one where people who came to me with protected disclosures did so as a last case scenario. It was very difficult to get a reply from a Minister with responsibility in whatever was the relevant field concerning the protected disclosure. I remember raising such an issue on the floor of the previous Dáil and being told that it was a protected disclosure and what could the Minister do about it. Those were the words of a former Taoiseach in the House. I refer to my experience of the way whistleblowers are treated as well. The biggest worry here, and Deputy Mairéad Farrell is right about this, is that the process is strung out for so long. The financial pain is bad enough, but the mental torture and what happens to these whistleblowers is nothing short of degrading. I suppose that is the word I will use, and that is being very polite.
The Minister mentioned in the last section about going as far as is possible and getting additional protections. This Bill, as we said from the outset, should be the strongest and the best that can be produced for the people doing this for the public right. I raised a scenario with the Minister before regarding a situation where a whistleblower or whistleblowers come forward, a protected disclosure is made and the procedure is followed all the way to the top. Apparently, regarding the issues raised, and here is the crux of this matter, there is no procedure, as it stands, to guarantee that the whistleblower or whistleblowers are being protected while the investigation is ongoing. There is also no mechanism to truly find out if the issues reported have been resolved. There is no corridor of inquiry there in that regard. More important, sometimes misinformation is received back to say that the issues raised have been resolved, when additional protected disclosures state that the original complaint still stands and that the response given was misinformation.
It is important to recognise that anything that weakens this legislation will be dangerous. It is our responsibility to keep the Bill as strong as we can and to protect these people. I say that because I would guess that most of us in the House have protected disclosures on our desks as it is. They are not going to go away.
I thank the Deputies for raising this matter. The issue we are trying to address here is that the system currently does not work as intended. We are trying to address that situation. We are not preventing people from reporting concerns to a Minister. In line with accepted best practice and in the spirit of the directive, we are merely requiring that a report should be made either to the person's employer or to a prescribed person first. There are exceptions for emergencies or if the head of the public body concerned is directly complicit in the alleged wrongdoing.
For example, if an official in my Department at a level below that of Secretary General had concerns about the Secretary General, that person could come to me under the Bill as proposed. That is absolutely fit and proper. Otherwise, such concerns should come up through the line. I think it is fair to say that the operation of the ministerial channel has been one of the most challenging areas of the implementation of the Act currently. The intent behind the provision of a ministerial channel under the Act was to ensure that in the event of a public body failing 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 report simultaneously to 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 act before the reporting person moves on to an alternative channel. Additionally, 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, which is provided for within the directive. We believe that allowing the Minister to refer disclosures to an independent expert - who will, as the members are aware, be the protected disclosures commissioner we are proposing to establish under the auspices of this Bill – with the requisite powers to take appropriate action as required, will deal with many of these issues and lead to protected disclosures being addressed in a more professional manner and to better outcomes, particularly for whistleblowers who report, and should appropriately be reporting, to the Minister.
It may well be the case that the protected disclosures commissioner, having considered a protected disclosure that has been referred to him or her, will send that complaint to the Minister. That is one possible outcome. What we do not want to happen is a situation where there is a lack of clarity as to who exactly is responsible for dealing with a protected disclosure. Often, a disclosure can go to multiple parties, including the Minister. Therefore, a clear process must be in place regarding what happens when a protected disclosure comes in and who deals with it. Equally, if such a disclosure does come into the Minister, it should be clear how the Minister should deal with it. That is what we are seeking to address in the provisions of this Bill.
To touch on that aspect again, I understand what the Minister is saying. My fear here, though, is that the Minister is saying this is a procedural thing and that certain channels should be set out for reporting these types of disclosures. There seems, however, to be a gap in respect of when the procedural process is followed all the way to the top and the issues have not been addressed. My problem is that if it is a governmental body or one paid for by public moneys that is responsible for seeing whether issues in protected disclosures have actually been dealt with, and the organisations concerned may not be fully truthful, what body or person then investigates? Is that the type of situation where the procedure would be for a person to go to the relevant Minister to report the situation if he or she is not happy with the outcome? Does the Minister understand where I am coming from?
That is one of my concerns, because it is not happening now. It seems that issues in protected disclosures are still not being resolved, whether people go to a Minister or the Minister refers such disclosures to a body such as the Health and Safety Authority, HSA, for example. The response comes back down the line to inform me, as a witness for the whistleblower, that the issues have been resolved. Yet I know from the whistleblower that those issues have not been resolved. Where does the avenue of procedural correction lie in that case? That is where my concerns lie. How do we strengthen and not weaken that aspect? These powers are needed because sometimes it is the internal bodies that should be investigated as well.
To add to that, all of us in the House hear about cases that we come across or from individuals that we discuss issues with. That could be to do with any area, such as banking or anything else. We hear from whistleblowers, such as in respect of the tracker mortgage issue, for example. We learn so much about how such things happened, why they happened and so on. This is a great forum to articulate cases and remedies in the context of such cases to see if we can get that into law. That is what I am trying to do here.
To go back to the last question posed and to link it to this one, let us take the example of what happens in a situation where a whistleblower has made the disclosure to the appropriate person and is then encouraged by the person to formalise the disclosure. As the process proceeds over the years and is not dealt with, the matter then enters the legal realm. That is what happens. The agency concerned, and that could be the Department of Education, the Higher Education Authority, HEA, or whatever body, then circles the wagons and God help the poor unfortunate concerned when that happens. The battle starts then and the degrading of the individual, which Deputy Buckley referred to, and the questioning of the integrity of that individual.
Then ill-health comes into it and all sorts of things happen. In the course of this, the person decides he or she has not had any remedy, satisfaction or feedback as to whether the agency or entity being complained about has investigated the issues the person raised and that he or she is just simply being stonewalled. This has happened.
Then, in later years, the person makes a submission, and Deputy Buckley gave an example, to the Minister. The public sees the Minister as being the powerful individual over the entity concerned. A person makes a report and protected disclosure to a Minister but nothing happens. It then goes from the Minister back to the governing entity and then back to the entity the whistleblower is involved in or working for. The outcome is a broken person who is not compensated fully and who has been bullied through the system to try to get a resolution and get it off the table. There is no account as to whether the issues that were raised were dealt with. To this day there are whistleblowers in this category. They are waiting for it to be resolved.
The EU directive states that beyond an explicit prohibition of retaliation provided in law, it is crucial that reporting persons who suffer retaliation have access to legal remedies and compensation. Unless they are willing to pay a fortune and run against the State they do not have access to legal remedies. This is part of the problem. The compensation is always something that will be disputed by the entity about which the complaint has been made. These are existing cases I am speaking about. The directive states the appropriate remedy in each case should be determined by the type of retaliation suffered and that the damage caused in such cases should be compensated in full according to the national law. It states the appropriate remedy could take the form of action for reinstatement in the event of dismissal, transfer or demotion or of withholding of training or promotion. If a protected disclosure causes a person on a combined salary of €150,000 to €200,000 a year to be out sick that person loses all of this salary.
At the end of years and years of battling with the State agency or Department, the remedy does not in any way equate to the problems created for the person who made the protected disclosure in the first place. Neither does it address the issues. Nobody will tell the whistleblowers they were right or wrong or whatever. It is just a battle against the legal team. Only one case, which is from the private sector, ever ended up in court with regard to the legislation on protected disclosures because it costs too much to do it. As we discuss the Bill we are risking throwing all of those individuals in the system under the bus because the system refuses to deal with it. Somebody has to call a halt to this and insist that every Minister who ever took a protected disclosure from anyone should deal with it. I do not want to open the coffers of the State to all of these people but they should be judged and there should be an outcome. The EU directive mentions restoration of cancelled permit, licence or contract and compensation for actual and future losses, past wages and future loss of income, costs linked to a change of occupation, compensation for other economic damage such as legal expenses and costs of medical treatment and for intangible damage such as pain and suffering. None of this is happening. It is shocking.
As legislators we watch how legislation is created and passed in the Dáil and the arguments we all have on either side of the debate. Then we see it being abused. It is just wrong. There are cases like this and I am asking the Minister to look at them and inform himself on how people are being blackguarded and do something about it. I have read from the EU directive and I can tell the Minister I do not know many agencies in the State that are abiding by that law. This is why we will have an argument down the line about this. I do not think any legislation, and this legislation in particular, should be passed without addressing what we have already in the system and without addressing the abuse being heaped on these people on a daily basis. This abuse has nothing to do with the protected disclosure, by the way. It is an abuse of power by the legal teams in the State on either side. We have to ask ourselves why no case has been taken to the courts. What is going on? I can tell the Minister there are broken people watching us debating this and they are looking for an outcome. Some of the outcomes being suggested to them are farcical and wrong and we have to address them.
What the Chair has said is not without foundation. We have all dealt with situations similar in nature to those that have been described. There are two sides to it. A prima facie case should be established so that people cannot unilaterally decide to blacken somebody's name or reputation. We need to be careful about this. However, there are situations that come to our attention as elected Members of the Houses and our only response is to raise it in the House and we should do so. It is the only place we get the privilege to do so. On the other hand there are cases where there is already in existence a body that is appropriate to deal with the situation.
I can think of a particular case where the House would not deal with something because it was more appropriate for another body to deal with it. It cost the State an awful lot more because the case went to court and the individual won. The cost was immeasurably greater than it would have been if the issue had been answered in the first instance. There will be others I have no doubt about it. I remember being involved in arguments with the people concerned and saying they should settle it quickly, acknowledge it and deal with it and do whatever had to be done. This was not done. I got lectures about the law and all sorts about what consequences were. That was all nonsense. In the long and the short of it, when the court made its decision and rightly so, the cost to the State was much greater than was anticipated at the beginning. Somebody was doing something wrong.
There are such situations that come up from time to time. The only way Members of the Oireachtas can deal with them is to table a parliamentary question. If the question is not answered it means perhaps that behind the scenes the relevant Department said that it did not want to answer the question and it was none of its business. It is all nonsense and the Chair has said this already.
There is an obligation on Ministers when a protected disclosure is brought to their attention to ensure it is examined in detail and that the law is followed. Otherwise we are all breaking the law. It is not that every whistleblower is right but the Minister owes it to whistleblowers to find out whether the complaints they are making are right or wrong. If it involves another person being been complained about, the Minister also owes it to that person to ensure it is sorted. I challenge the Minister to take some of the cases he may be aware of and look at them and find out for himself how bad it is. We have made our points.
A considerable amount has been said. This amendment is about the deletion of lines 15 to 29 where we see the words, "emergency situation or a risk of irreversible damage". Realistically, most protected disclosures are made in such situations. It is very difficult for people and we have seen the significant impact it has had on them. Putting this in is regressive. Making anything more difficult for people who have done so much in the interest of everybody and for the betterment of our society and the way it works, which these lines do, should not be part of this Bill.
I thank colleagues for raising all of those issues. I fully understand and appreciate that many people are watching this debate. They are looking at it through the lens of their own experiences which, in many instances, have not been good and they want to see a way forward provided through this legislation. They expect the committee and the Oireachtas to bring about improvements. That is exactly what we seek to do.
One of the main changes that will be introduced as a result of the enactment of this Bill is feedback and an outcome. Under the existing Act, one makes a disclosure and does not have a legal right to an outcome. One does not have a legal right to know how exactly it has been dealt with or to get any feedback. That will be quite explicit in this Bill, which is a very important reform and a major step forward.
On the question of the ministerial channel and the related issues we have been teasing out, it cannot be considered in isolation from the role of the protected disclosures commissioner. Let us call it the protected disclosures commissioner's office. That office will be there to assist whistleblowers. Whistleblowers will be able to contact the office to seek advice as to who is the appropriate prescribed person to refer a protected disclosure to.
It can be very difficult. There are currently approximately 100 prescribed persons under the legislation. If somebody at work sees something that he or she believes is very wrong and does not know where to turn, once this Bill is enacted, there will be a protected disclosures commissioner's office the person can contact. The office will advise and guide the person as to who is the most appropriate prescribed person for that disclosure to be referred to. That point is important and worth making.
In situations, which will be rare given there is a very large number of prescribed persons, in which the office cannot identify who the appropriate person is, it can deal with the protected disclosure, follow through and come to an ultimate determination in respect of it. That is a very important change which will be made by this Bill once it is enacted, it is hoped, in the weeks and months ahead.
What we seek to do in respect of the ministerial channel is to make sure there is a proper process. In reality, what will happen when a Minister receives a protected disclosure under the new regime, once the Bill is enacted, is it will be referred to the protected disclosures commissioner to assess who is the most appropriate prescribed person to deal with that disclosure. It could well be the case that the most appropriate person is the Minister, in which case it will be referred back to him or her. The Minister will then inherit all of the obligations under the new Act to consider, provide feedback and, ultimately, to come to a view as to the outcome of that protected disclosure. Those points are important for context.
This is not in any way an effort to diminish the rights of people. It actually strengthens them for all of those reasons. They will now have a right to an outcome and feedback. They have a right to have their case dealt with by somebody, be it a prescribed or suitable person designated by the commissioner or indeed the commissioner. That represents significant progress for whistleblowers who, at present, operate in an environment which is not what it should be.
The Act was of its time. It was groundbreaking for its time but it has been in operation for seven or eight years and we have seen its shortcomings. We are using the opportunity of the transposition of this directive to try to improve it. We are improving it, including in the treatment of the ministerial channel that is proposed.
Amendment put:
The Committee divided: Tá, 3; Níl, 6.
Tá
- Barry, Mick.
- Doherty, Pearse.
- Farrell, Mairéad.
Níl
- Durkan, Bernard J.
- Matthews, Steven.
- McGrath, Michael.
- McGuinness, John.
- O'Sullivan, Pádraig.
- Richmond, Neale.
Amendment declared lost.
Amendments Nos. 23 to 27, inclusive, are related and may be discussed together. Amendments Nos. 24 to 27, inclusive, are consequential on No. 23.
I move amendment No. 23:
In page 24, to delete lines 12 and 13 and substitute the following:
“(e) in relation to the Office of the Financial Services and Pensions Ombudsman, the Financial Services and Pensions Ombudsman,”.
These are technical amendments to section 8 to reflect that the Financial Services Ombudsman and the Pensions Ombudsman have merged.
These are technical amendments so we will be supporting them.
Amendment agreed to.
I move amendment No. 24:
In page 24, to delete lines 20 and 21.
Amendment agreed to.
I move amendment No. 25:
In page 24, line 22, to delete “(j) in relation” and substitute “(i) in relation”.
Amendment agreed to.
I move amendment No. 26:
In page 24, line 23, to delete “(k) in relation” and substitute “(j) in relation”.
Amendment agreed to.
I move amendment No. 27:
In page 24, line 25, to delete “(l) in relation” and substitute “(k) in relation”.
Amendment agreed to.
Section 12, as amended, agreed to.
Section 13 agreed to.
SECTION 14
Amendments Nos. 28 to 33, inclusive, 37 to 39, inclusive, 49 and 53 to 55, inclusive, are related and may be discussed together. Amendments Nos. 29 to 33, inclusive, are consequential on No. 28. Amendments Nos. 38 and 39 are consequential on No. 37.
I move amendment No. 28:
In page 27, between lines 6 and 7, to insert the following:
“(5) The Commissioner 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.”.
This is a set of technical amendments to section 10B, as inserted by section 14 of the Bill, to clarify the meaning of a “designated person” in this section. Subsections (1)(a) and (5) of section 10B make reference to “designated persons” but do not define what these are. As "designated persons” are also referred to and defined in sections 10C and 10D, without this clarification there is the possibility of confusion arising as regards who is a “designated person” under each of these sections. Amendment No. 28 provides for the insertion of this definition of a designated person into section 10B. The remaining amendments are of a technical nature to address consequential changes to numbering and cross-references to “designated persons” in the Bill.
We will be supporting these amendments.
Amendment agreed to.
I move amendment No. 29:
In page 27, line 7, to delete “(5) The Commissioner” and substitute “(6) The Commissioner”.
Amendment agreed to.
I move amendment No. 30:
In page 27, line 9, to delete “(6) The Commissioner” and substitute “(7) The Commissioner”.
Amendment agreed to.
I move amendment No. 31:
In page 27, line 39, to delete “(7)(a) The Commissioner” and substitute “(8)(a) The Commissioner”.
Amendment agreed to.
I move amendment No. 32:
In page 27, line 41, to delete “subsection (6)” and substitute “subsection (7)”.
Amendment agreed to.
I move amendment No. 33:
In page 28, line 9, to delete “(8) A reporting” and substitute “(9) A reporting”.
Amendment agreed to.
I move amendment No. 34:
In page 31, between lines 2 and 3, to insert the following:
“(d) the provision to the reporting person, where he or she so requests in writing, of further feedback at intervals of 3 months until such time as the procedure relating to the report concerned is closed, the first such period of 3 months commencing on the date on which feedback is provided to the reporting person under paragraph (b);”.
Amendment agreed to.
I move amendment No. 35:
In page 31, line 3, to delete “(d) save as” and substitute “(e) save as”.
Amendment agreed to.
I move amendment No. 36:
In page 31, line 7, to delete “(e) where” and substitute “(f) where”.
Amendment agreed to.
I move amendment No. 37:
In page 31, to delete lines 15 and 16.
Amendment agreed to.
I move amendment No. 38:
In page 31, line 17, to delete “(ii) follow-up” and substitute “(i) follow-up”.
Amendment agreed to.
I move amendment No. 39:
In page 31, line 19, to delete “(iii) maintaining” and substitute “(ii) maintaining”.
Amendment agreed to.
I move amendment No. 40:
In page 31, line 36, to delete “Subsection (7)(d)” and substitute “Subsection (7)(e)”.
Amendment agreed to.
I move amendment No. 41:
In page 36, between lines 5 and 6, to insert the following:
“(d) the provision to the reporting person, where he or she so requests in writing, of further feedback at intervals of 3 months until such time as the procedure relating to the report concerned is closed, the first such period of 3 months commencing on the date on which feedback is provided to the reporting person under paragraph (b);”.
Amendment agreed to.
I move amendment No. 42:
In page 36, line 6, to delete “(d) save as” and substitute “(e) save as”.
Amendment agreed to.
I move amendment No. 43:
In page 36, line 10, to delete “(e) where” and substitute “(f) where”.
Amendment agreed to.
I move amendment No. 44:
In page 36, line 37, to delete “Subsection (7)(d)” and substitute “Subsection (7)(e)”.
Amendment agreed to.
I move amendment No. 45:
In page 39, after line 43, to insert the following:
“(e) provide to the reporting person, where he or she so requests in writing, further feedback at intervals of 3 months until such time as the procedure relating to the report concerned is closed, the first
such period of 3 months commencing on the date on which feedback is provided to the reporting person under paragraph (c);”.
Amendment agreed to.
I move amendment No. 46:
In page 40, line 1, to delete “(e) save as” and substitute “(f) save as”.
Amendment agreed to.
I move amendment No. 47:
In page 40, line 5, to delete “(f) where” and substitute “(g) where”.
Amendment agreed to.
I move amendment No. 48:
In page 40, line 22, to delete “Subsection (1)(e)” and substitute “Subsection (1)(f)”.
Amendment agreed to.
Section 14, as amended, agreed to.
Section 15 agreed to.
SECTION 16
I move amendment No. 49:
In page 44, line 9, to delete “10B” and substitute “10B, 10C, 10D”.
Amendment agreed to.
Section 16, as amended, agreed to.
SECTION 17
I move amendment No. 50:
In page 45, to delete lines 13 to 23 and substitute the following:
“ “16A.(1) The identity of any person concerned shall be protected by a prescribed person or the Commissioner, as the case may be, to whom a report is made or transmitted, as the case may be, or by an other suitable person (within the meaning of section 10C or 10D) to whom a report is transmitted, under this Act, for as long as any investigation triggered by the report is ongoing.
(2) Subsection (1) shall not preclude the disclosure of the identity of any person concerned where the prescribed person, the Commissioner or the suitable person, as the case may be, reasonably considers that such disclosure is necessary for the purposes of this Act or where such disclosure is otherwise authorised or required by law, as the case may be.
(3) Sections 7A, 10B, 10C, 10D, 10E, 16B and 22 shall, with any necessary modifications, apply to the protection of the identity of persons concerned as those provisions apply to the protection of the
identity of reporting persons.”.”.
This is an amendment to the wording of section 16B regarding the protection of the identity of persons named in a report that this shall not preclude any actions a prescribed person or the commissioner may take to follow-up on a report. This reflects a number of concerns raised with the Department since the Bill was published that this provision was too restrictive and could impede effective investigation of wrongdoing. The key purpose behind this amendment is to ensure that the legislation does not in any way stand in the way of a prescribed person or the commissioner from taking such actions as they see fit to address the wrongdoing reported. There have been issues with the duty to protect the identity of the reporting person. The amendments that have been made to section 16 of the principal Act and the various provisions setting out conditions under which a report may be transmitted to a more suitable competent authority go a long way to addressing that.
I do not want to repeat the same mistakes as regards confidentiality that in the past led to some employers and prescribed persons being paralysed by the confidentiality provisions in the legislation as regards the actions they could take to address the wrongdoing reported. This amendment provides the necessary clarification in this regard.
We support the amendment.
Amendment agreed to.
Section 17, as amended, agreed to.
SECTION 18
Amendments Nos. 51 and 52 are related and may be discussed together.
I move amendment No. 51:
In page 47, between lines 8 and 9, to insert the following:
“(7) Any processing of personal data pursuant to this Act, including the exchange or transmission of personal data by prescribed persons, the Commissioner and any suitable persons, shall be carried out in accordance with applicable data protection law.
(8) Personal data which are manifestly not relevant for the handling of a specific report shall not be collected or, if accidentally collected, shall be deleted without undue delay.”.
This provides for an amendment to section 16A requiring that, where reports are transmitted by the commissioner or prescribed persons, this be done in a secure manner compliant with data protection law. This implements recommendation 44 of the committee's pre-legislative scrutiny report.
Article 17 of the directive makes clear that all reports be processed in a manner compliant with the general data protection regulation, GDPR, and other data protection laws. Since the GDPR applies universally, it was not originally considered necessary to make specific reference to this. However, to implement the committee’s recommendation on secure transmission of reports, this amendment makes it clear that data protection law applies generally to this legislation and specifically to the transmission of any reports to third parties.
We support the amendment.
Amendment agreed to.
I move amendment No. 52:
In page 47, to delete line 9 and substitute “(9) In this section—”.
Amendment agreed to.
I referred earlier to the fact that one particular person who made a disclosure was actually named in correspondence of the Committee of Public Accounts. I hope that, in the context of the last few amendments, there will now be sanctions for people who disclose the name of such a person, deliberately or otherwise. That is very important. I just wanted to bring that to the Minister's attention.
Section 18, as amended, agreed to.
SECTION 19
I move amendment No. 53:
In page 48, line 3, to delete “10B” and substitute “10B, 10C, 10D”.
Amendment agreed to.
I move amendment No. 54:
In page 48, line 10, to delete “10B” and substitute “10B, 10C, 10D”.
Amendment agreed to.
I move amendment No. 55:
In page 48, line 19, to delete “10B” and substitute “10B, 10C, 10D”.
Amendment agreed to.
Section 19, as amended, agreed to.
Sections 20 to 21, inclusive, agreed to.
SECTION 22
Amendment No. 56 has been ruled out of order as it involves a potential charge on revenue.
Amendment No. 56 not moved.
I move amendment No. 57:
In page 50, to delete line 8 and substitute the following:
“(b) by the substitution of the following for subsection (3):
“(3) In subsection (1), ‘detriment’ means an act or omission referred to in any of paragraphs (a) to (q) of the definition of ‘penalisation’ in section 3, subject to the modification that references in any of the said paragraphs to a worker shall be read as a reference to the person to whom the detriment is caused.”.”.
The amendment provides for an amendment to section 13 of the principal Act to clarify that a person can seek damages in respect of all forms of penalisation specified in the legislation. Again, this implements a recommendation of the committee, which is recommendation 10 of the pre-legislative scrutiny report.
We support the amendment as it is based on our recommendation.
Amendment agreed to.
Section 22, as amended, agreed to.
Sections 23 and 24 agreed to.
Amendment Nos. 58 and 59 have been ruled out of order as they involve a potential charge on revenue.
Amendments Nos. 58 and 59 not moved.
Section 25 agreed to.
NEW SECTION
I move amendment No. 60:
In page 52, between lines 19 and 20, to insert the following:
“Provision for further review
26. The following section is inserted after section 2 of the Principal Act:
“2A. The Minister shall—
(a) not later than the end of the period of 5 years beginning on the date of the passing of the Protected Disclosures (Amendment) Act 2022 commence a review of the operation of this Act, and
(b) not more than 12 months after the end of the period preferred to in paragraph (a) make a report to each House of the Oireachtas of the findings made on the review and the conclusions drawn from those findings.”.”.
This amendment provides for the addition of a new section providing for a statutory review of the legislation after five years. This is in response to comments by some Deputies, including Deputy Connolly, during the Second Stage debate and is in line with Government policy to conduct formal statutory reviews of the impact of legislation once an appropriate period of time has elapsed.
We agree with this amendment.
Amendment agreed to.
Sections 26 and 27 agreed to.
Amendment No. 61 has been ruled out of order because it involves a potential charge on revenue.
Amendment No. 61 not moved.
Section 28 agreed to.
SECTION 29
I move amendment No. 62:
In page 55, line 37, to delete “section.”.” and substitute the following:
“section.
(9) (a) The Commissioner shall, as soon as practicable but not later than 4 months after the end of each year, cause a report on the performance of his or her functions under this Act (in this subsection referred to as the ‘annual report’) to be laid before each House of the Oireachtas and may, from time to time, cause to be laid before each such House such other reports with respect to those functions as he or she thinks fit.
(b) Notwithstanding paragraph (a), if, but for this paragraph, the first annual report would relate to a period of less than 6 months, the first annual report shall relate to that period and to the year immediately following that period and shall be made as soon as practicable, but not later than 4 months after the end of that year.
(c) An annual report shall include information in such form and regarding such matters as the Commissioner thinks fit or as the Minister may direct.
(d) Nothing in this subsection shall be construed as requiring the Commissioner to include information the inclusion of which would, in the opinion of the Commissioner, be likely to prejudice the performance of his or her functions under this Act.”.”.
This amendment provides for a new provision in section 29 for the protected disclosures commissioner to make an annual report on the operation of the legislation. This was proposed by the Ombudsman's office and is in line with the practice that has applied to the other bodies within the ombudsman family, that is, the Ombudsman, the Information Commissioner, the registrar of lobbying, the Standards in Public Office Commission and so on. It also implements recommendation 42 of the pre-legislative scrutiny report. It will be a significant help to us in getting better information and data on how the system is operating and on how protected disclosures are being dealt with. The introduction of annual reporting is an important reform.
Is Deputy Farrell okay with that?
Amendment No. 62 agreed to.
Section 29, as amended, agreed to.
Sections 30 to 33, inclusive, agreed to.
Schedules 1 and 2 agreed to.
Title agreed to.
Do the Minister or Deputy Mairéad Farrell wish to make any concluding remarks?
My main concluding remark is on something that has been the theme of today's meeting and all of our discussions, that is, the great sense of gratitude many members of the committee have for those people who have blown the whistle and done such really great service to the people and to the State. Deputy Buckley and I strongly believe that everything that can be done to protect future whistleblowers, and, as has been discussed here today, those who have previously come forward, must be done and that they must be given all possible protection. There is something very strange in people being penalised and given a difficult time for doing something that is in the public interest rather than in their own interest. There are a lot of positives in this Bill. We will discuss further amendments on Report Stage on things the Minister discussed earlier. My main point is that we owe a debt of gratitude to those who have blown the whistle.
I echo what Deputy Farrell said and thank the Minister for working on both sides. I also thank the members. As has been said many times, the two most difficult things to do in this country are to tell the truth and to help people because you normally get punished for it. This is important. Everybody should be proud of what has already been achieved, even though nothing has been achieved. We must be aware of the people outside here who have been persecuted, battered, beaten down, broken and had accusations made against them, yet still have the courage to stand up and do the right thing. They have to be commended. I thank the Minister and Deputy Farrell.
I thank members for their co-operation and support of the Bill to date. We have had a good discussion and that will continue in the Dáil Chamber on Report Stage. We have work to do on this side of the House on further amendments and so on, which I will say a word on in a moment. I acknowledge the work of the committee at pre-legislative stage. It made a difference and we put forward amendments to reflect key recommendations made by the committee. It was a job well done and it strengthened and improved the Bill.
I echo the sentiment of the Chairman and other colleagues about the debt of gratitude we owe as a society to whistleblowers. Words are easy but they want tangible action from Government and the system to support and vindicate them. That is not to say every whistleblower is correct in respect of every allegation made. Nobody is saying that, but where disclosures are made, there needs to be a clear and transparent process, an outcome and reasons for that outcome. Instances of penalisation where people are punished for making a disclosure need to be dealt with strongly. I am keen that we make progress in that space.
I will table amendments on Report Stage to give further retrospective application to the Bill. There are a number of other areas where I am considering bringing amendments on Report Stage. One area raised in the pre-legislative scrutiny report concerned the time limits for making complaints to the Workplace Relations Commission, WRC. I am looking into the issue with the WRC, the Tánaiste's Department and the Attorney General and may make proposals on it on Report Stage.
I understand the HSE has sent the committee the reports on the interaction between the Protected Disclosures Act and the Health Acts. My Department has also been furnished with a copy of this report, which it had not seen before. My officials are examining it and I will consider if any Report Stage amendments in this regard are needed. It may be more proper for the Minister for Health to bring such proposals, depending on which legislation needs to be changed. We will consider that in the next week or two.
There are a number of areas of sectoral legislation where amendments on Report Stage may be required to clarify the relationship with this Bill. My officials are in discussion with the Attorney General and the Departments involved.
I wish to be associated with other speakers on the Bill. The important things for a complainant are that there is a conclusion and outcome, that the complaint is investigated and that whether it is right or wrong is clarified in the course of it. The wall of silence is not acceptable. It is an old-fashioned idea that if you avoid it long enough, it will go away by itself. A wrong does not go away by itself or with help. The proposed legislation will deal with this in a meaningful way. It will be an important contribution to labour law and law in general. The important things are that the public can rely on it, realise they have done their job in so far as they can and it is up to somebody else to deal with it now, and that they see it being dealt with.
I extend to the Minister and his officials the thanks of the committee for the manner in which they engaged on the Bill. The pre-legislative scrutiny process has proven very worthwhile on this occasion. Great thanks are due to members who contributed to that process and to bringing about a report which was helpful to the Minister and is reflected in the content of various amendments that came forward. Good work has been done there.
The opinion of the committee is that the whistleblowers left in the system who have not been dealt with constitute a key piece that has to be dealt with. I have raised some issues with the Minister and would love to see them addressed on the basis of fair play. Will the Minister look back over the transcript of the meeting? Some of the issues that emerged could be dealt with in the course of the debate in the Dáil on Report and Final Stages.