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SELECT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN'S RIGHTS debate -
Wednesday, 16 Jun 2010

Prevention of Corruption (Amendment) Bill 2008: Committee Stage

The committee will now commence its consideration of the Prevention of Corruption (Amendment) Bill 2008.

Section 1 agreed to.
SECTION 2

As amendments Nos. 1 and 2 are related, they may be discussed together.

I move amendment No. 1:

In page 4, paragraph (b)(ii), line 4, to delete “definition” and substitute “definitions”.

The purpose of amendment No. 1, which provides for the inclusion in section 2(b)(ii) of the plural term “definitions”, is to enable the term “corruptly” to be defined in the Bill. I am proposing to define this term following my consideration of the matter in consultation with the Office of the Attorney General, on the basis of a recommendation to this effect by the OECD during its phase 2 evaluation of Ireland, which commenced in 2007. The definition, as set out in amendment No. 2, provides that “‘corruptly’ includes acting with an improper purpose personally or by influencing another person, whether by means of making a false or misleading statement, by means of withholding, concealing, altering or destroying a document or other information, or by any other means”. This is similar to a definition contained in the US federal code. The Office of the Director of Public Prosecutions has not indicated any objection to providing for a definition of this term within the legislation.

In view of what the Minister has said, I am prepared to accept this amendment on behalf of Fine Gael. This is the first time the term "corruptly" is to be defined in our law. The Minister has indicated that it is an internationally accepted definition. If I understand him correctly, it has been approved by the Attorney General and the Director of Public Prosecutions. If that is the case, I am willing to accept what the Minister has proposed. However, there may be some difficulties with its broadly based carriage.

I agree. One suspects it is inevitable that this term will be challenged at some future stage. So be it. In the interim, I am prepared this as the best stab that can be made at it.

Amendment agreed to.

I move amendment No. 2:

In page 4, paragraph (b)(ii), between lines 4 and 5, to insert the following:

" ‘corruptly' includes acting with an improper purpose personally or by influencing another person, whether by means of making a false or misleading statement, by means of withholding, concealing, altering or destroying a document or other information, or by any other means;".

Amendment agreed to.
Section 2, as amended, agreed to.
Section 3 agreed to.
NEW SECTIONS

As amendments Nos. 3 to 6, inclusive, are related, they may be discussed together.

I move amendment No. 3:

In page 5, before section 4, to insert the following new section:

"4.—The Act of 2001 is amended by inserting the following section after section 8:

8A.—(1) A person who, apart from this section, would be so liable shall not be liable in damages in respect of the communication, whether in writing or otherwise, by the person to an appropriate person of his or her opinion that an offence under the Prevention of Corruption Acts 1889 to 2010 has been or is being committed unless—

(a) in communicating his or her opinion to that appropriate person did so—

(i) knowing it to be false, misleading, frivolous or vexatious, or

(ii) reckless as to whether it was false, misleading, frivolous or vexatious,

or

(b) in connection with the communication of his or her opinion to that appropriate person, furnished information that he or she knew to be false or misleading.

(2) The reference in subsection (1) to liability in damages shall be construed as including a reference to liability to any other form of relief.

(3) A person who makes a communication under subsection (1), which the person knows, or ought reasonably to know, to be false, that a person has committed or is committing an offence under the Prevention of Corruption Acts 1889 to 2010 shall be guilty of an offence.

(4) Subsection (1) is in addition to, and not in substitution for, any privilege or defence available in legal proceedings, by virtue of any enactment or rule of law in force immediately before the commencement of this section, in respect of the communication by a person to another (whether that other person is an appropriate person or not) of an opinion of the kind referred to in subsection (1).

(5) An employer, or any person acting on behalf of an employer, shall not penalise or threaten penalisation against an employee for—

(a) having formed an opinion of the kind referred to in subsection (1) and communicated it, whether in writing or otherwise, to an appropriate person unless the employee—

(i) in communicating his or her opinion to that appropriate person did so—

(I) knowing it to be false, misleading, frivolous or vexatious, or

(II) reckless as to whether it was false, misleading, frivolous or vexatious,

or

(ii) in connection with the communication of his or her opinion to that appropriate person, furnished information that he or she knew to be false or misleading,

or

(b) giving notice of his or her intention to do the thing referred to in paragraph (a).

(6) Schedule 1 shall have effect in relation to an alleged contravention of subsection (5).

(7) An employer who contravenes subsection (5) shall be guilty of an offence.

(8) A person guilty of an offence under subsection (3) or (7) shall be liable—

(a) on summary conviction, to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months or both, or

(b) on conviction on indictment, to a fine not exceeding €250,000 or imprisonment for a term not exceeding 3 years or both.

(9) Section 13 of the Criminal Procedure Act 1967 shall apply in relation to an offence referred to in subsection (8) as if, in lieu of the penalties specified in subsection (3)(a) of that section, there were specified therein the penalties provided for in subsection (8) (a) and the reference in subsection (2)(a) of that section to the penalties provided for by subsection (3) of that section shall be construed and have effect accordingly.

(10) Any person who, upon examination on oath or affirmation authorised under paragraph 3(1) of Schedule 1, wilfully makes any statement which is material for that purpose and which the person knows to be false or does not believe to be true shall be guilty of an offence and liable on summary conviction to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months or both.

(11) A person to whom a notice under paragraph 3(2) of Schedule 1 has been given and who refuses or wilfully neglects to attend in accordance with the notice or who, having so attended, refuses to give evidence or refuses or wilfully fails to produce any document to which the notice relates shall be guilty of an offence and liable on summary conviction to a fine not exceeding €5,000.

(12) A document purporting to be signed by the chairperson or a deputy chairperson of the Labour Court stating that—

(a) a person named in the document was, by a notice under paragraph 3(2) of Schedule 1, required to attend before the Labour Court on a day and at a time and place specified in the document, to give evidence or produce a document, or both,

(b) a sitting of the Labour Court was held on that day and at that time and place, and

(c) the person did not attend before the Labour Court in pursuance of the notice or, as the case may be, having so attended, refused to give evidence or refused or wilfully failed to produce the document, shall, in a prosecution of the person under subsection (11), be evidence of the matters so stated without further proof unless the contrary is shown.

(13) For the purposes of this section, a reference to 'dismissal' includes—

(a) a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2007, and

(b) a dismissal wholly or partly for or connected with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration under section 9(3) of the Protection of Employees (Fixed-Term Work) Act 2003.

(14) Schedule 2 shall have effect for the purposes of a communication referred to in this section made to an appropriate person who is a confidential recipient.

(15) Paragraphs (a), (c), (d), (e) and (f) of the definition of ‘penalisation’ in subsection (16) shall not be construed in a manner which prevents an employer from—

(a) ensuring that the business concerned is carried on in an efficient and effective manner, or

(b) taking any action required for economic, technical or organisational reasons.

(16) In this section—

‘appropriate person', in relation to a communication referred to in this section made by a person, means a communication to—

(a) in any case, a member of the Garda Síochána,

(b) in any case where the opinion concerned of the kind referred to in subsection (1) was formed in the course of the person’s employment—

(i) the person's employer, or

(ii) a person nominated by such employer as the person to whom a communication of that kind may be made,

(c) without prejudice to the generality of paragraphs (a) and (b), in any case where the person is in a state other than the State—

(i) a diplomatic or consular officer of the State who is in that state, or

(ii) a member of a law enforcement agency of that state,

or

(d) in any case where the person wishes to make the communication in confidence, to a confidential recipient;

‘confidential recipient' has the meaning assigned to it by paragraph 1 of Schedule 2;

‘contract of employment' means a contract of employment or of service or of apprenticeship, whether the contract is express or implied and, if express, whether it is oral or in writing;

‘employee' means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer;

‘employer', in relation to an employee, means the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment, and includes—

(a) a person (other than an employee of that person) under whose control and direction an employee works, and

(b) where appropriate, the successor of the employer or an associated employer of the employer;

‘penalisation' means any act or omission by an employer, or a person acting on behalf of an employer, that affects an employee to his or her detriment with respect to any term or condition of his or her employment, and, without prejudice to the generality of the foregoing, includes—

(a) suspension, lay-off or dismissal,

(b) the threat of suspension, lay-off or dismissal,

(c) demotion or loss of opportunity for promotion,

(d) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(e) the imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty),

(f) unfair treatment, including selection for redundancy,

(g) coercion, intimidation or harassment,

(h) discrimination, disadvantage or adverse treatment,

(i) injury, damage or loss, and

(j) threats of reprisal.”.

As members are aware, the Prevention of Corruption (Amendment) Bill 2008 deals solely with the offences of bribery and corruption, as set out in the Prevention of Corruption Acts 1889 to 2005. The principal purpose of the Bill before the committee is to ensure full compliance by Ireland with the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. It should be pointed out that the whistleblowers' protection provision in this Bill is not confined to the bribery of foreign public officials. It applies to any person reporting his or her opinion that an offence under the Protection of Corruption Acts has been committed. It applies to a possible report in respect of a wide variety of people, as set out in section 2 of the Prevention of Corruption Act 2001, which is being further amended in this Bill. It includes any person employed by or acting on behalf of another, or any person employed by or acting on behalf of the public administration of the State. In effect, this means that a person employed in any sector, including the public sector, who suspects that an offence covered by the Prevention of Corruption Acts is being committed and reports that suspicion will be protected in respect of that report from liability in damages arising from that communication, assuming it is made in good faith and is neither frivolous nor vexatious.

The whistleblower provisions in this Bill have been drafted with the intentions of ensuring protection for the whistleblower and clarifying the rights of redress which are open to an individual who may be penalised, by an employer for example, as a result of having reported a suspicion. My Department recently received observations on an aspect of this proposed amendment from the Garda Síochána. I am considering these observations. I will bring forward a further amendment, if necessary, on Report Stage.

Amendment No. 4, in the name of Deputy Flanagan, has the appearance of a Bill in its own right, as it provides a general protection for whistleblowers rather than an amendment to this legislation. The amendment not only relates to the offences provided for in the Bill before the committee, but also proposes to protect disclosures in a wide variety of situations and circumstances which are unconnected with corruption. His amendment proposes providing protections in respect of matters as diverse as health and safety, auditing, miscarriages of justice and more. Irrespective of the merits of such a proposal, these are not issues under consideration in the Bill. Deputy Charles Flanagan's proposed amendment is not encompassed by the Long Title and, therefore, I do not propose to accept it.

Amendment No. 5 tabled by Deputy Rabbitte is to insert the words "or suspicion" after the word "opinion" in page 5, line 18, of the Bill. I am advised by the Parliamentary Counsel that an opinion can be founded on a belief which would embrace actual knowledge or can be founded on a suspicion. Therefore, the proposed amendment is not necessary. If it were to be accepted, a consequential amendment would have to be made elsewhere in the section at 8A(5), which has not been proposed by the Deputy. As it is unnecessary, I do not propose to accept the amendment.

With regard to amendment No. 6 proposed by Deputy Rabbitte to alternate in section 8A(1) "an offence.... has been or is being committed" to "an offence.... may have been or may be being committed", the language proposed is cumbersome and not particularly clear. In addition, there would be consequential amendments arising from this proposal, also specifically at section 8A(3). I do not propose to accept the amendment.

While I do not intend accepting these amendments, members should be in no doubt that Government policy on the issue of providing protection for whistleblowers is unequivocal. This is borne out by the facts. The provision of such protections in appropriate legislation reflects my personal commitment to the issue in respect of areas which come within my remit as Minister for Justice and Law Reform.

Members will be aware that it has been Government policy for some years — I believe it dates back to 2006 — to provide protection for whistleblowers on a sectoral basis. This is not a hollow commitment, as some have argued, but is already reflected in many of our laws and will be reflected in many more Bills in preparation. The number and range of whistleblower protection provisions introduced in recent years is a clear indication that the Government will not shirk from engaging with this issue. At least nine statutes contain provisions providing protection for whistleblowers. These include the National Asset Management Act 2009, Health Act 2007, Safety Health and Welfare at Work Act 2005, Garda Síochána Act 2005, Labour Services Amendment Act 2009 and Consumer Protection Act 2007, to mention just a few. In addition, a significant number of other Bills either being proposed or progressed through the Houses, including the Property Service (Regulation) 2009, which I have proposed, Labour Services (Amendment) Bill 2009 and the Bill before us, contain similar protections.

There has been a certain amount of public debate in recent weeks on whistleblower protection and it has been suggested that the United Kingdom model of a single, all encompassing provision may be the best way to proceed. When the matter was considered by Government some years ago legal obstacles were identified to finding a good fit between the intention behind a single statute and the variety of circumstances in which it was to apply. The Government did not want to introduce whistleblower protection which, if tested by the courts, could be found wanting. The Attorney General offered advice to this effect at the time.

A further difficulty was that there are many instances where employees have access to sensitive personal and commercial information or information of importance from a national security point of view. The problem was where best to draw the line of public interest and otherwise. What the Government wanted was a solution that would work equally well in all circumstances. This is ultimately the reason it became clear, on balance, that a sectoral approach to the issue would be more effective and practical. Considering the variety of statutes which now contain such provisions and the forthcoming statutes in which it is proposed to include such provisions, it cannot be said that the Government has in any way neglected this very important matter.

The difficulty is that the Minister has again produced what I will describe as the "Thomas Aquinas defence" which, in view of the Minister's recent utterings outside the House, is less than satisfactory. It is a pity we are discussing these amendments in a group, although I do not propose to oppose the order in this matter. My problem with the amendment tabled by the Minister is that it is too narrowly based and only covers a measure of protection for those who report offences, irrespective of where they occur, provided they are under the Prevention of Corruption Acts and relate to political corruption, that is, the giving or receiving of something for a consideration or benefit, but do not relate to reporting irregularity. This is not sufficient, as I believe the Minister accepts to be the case. He stated, for example, that my amendment has merit but the only reason he does not propose to accept it is that it would require the Long Title to be changed. Changing the Title of a Bill is a simple process. The Minister's position is, therefore, less than satisfactory.

My amendment deals with a deliberate and general application of whistleblower protection. I believe the Minister shares my view that we need much more than the limited offence of offences related to corruption in public office. I have set out a broad list, which the Minister has stated he will not accept. I will not labour the point but it is essential that we have a broad application of this protection in areas where an employee can make a protected disclosure. Examples include cases of bank employees reporting that a bank does not have proper internal accounting controls or that a superior officer may be approving loans without proper legal documentation, of which there are many examples in the Commercial Court at present.

Difficult matters arising from the debt fuelled property boom must be addressed. I favour having an officer of the Garda Síochána permanently stationed in the Commercial Court given some of the utterances made both under oath and by way of affidavit in recent weeks. It is important that this House responds to this issue given that it is charged with the responsibility and duty to enact legislation and impose regulation.

Another example is the misuse of public funds in FÁS. The Minister does not need me to list the litany of alleged irregularities which may not have taken place in that organisation if the type of protection envisaged in my amendment had been in place. I believe my contention in this regard is not contested by the Minister.

The Director of Public Prosecutions, who rarely makes a public utterance, spoke recently of the need for a whistleblower's charter, which he believes would involve more than the sectoral, piecemeal approach the Minister appears to favour. I ask the Minister to respond to the DPP's view on the issue.

I was in the presence of the Minister at a recent Law Society dinner at which he made specific reference to a strategy to combat white-collar crime. My understanding was that legislative change was imminent. The Minister mentioned that legislation. My clear understanding from that address was that the strategy to combat white-collar crime, as outlined by the Minister, would involve substantive change to this Bill, encompassing more than what is before us this afternoon. A blanket whistleblower protection is essential. I will not oppose the Minister's amendment but believe we have an opportunity, by accepting my amendment, to give the legislation real teeth, particularly given that we rise for the summer vacation in four or five weeks. The Bill could be enacted before the summer recess and signed into law, notwithstanding what the Minister says about further matters that might be dealt with by way of comprehensive legislation, or other means, "later on". My problem is with the phrase "later on" because we know from experience that it often does not materialise.

I agree broadly with Deputy Flanagan that the Minister's major proposed change is too narrow. I was unable to attend the Law Society's function to which Deputy Flanagan referred. The Minister's speech created a lot of excitement among the media, excitement that I could not quite understand when I saw the script. I was present at the Burren Law School as a contributor when the Director of Public Prosecutions made his public remarks. It appears it was to his remarks that the Minister was responding at the event to which Deputy Flanagan refers.

The Director of Public Prosecutions seemed to have settled his mind on the fact that we could not combat white-collar crime unless we had protection for whistleblowers in the fashion he outlined at the law school. I find that interesting because the Minister said the Attorney General considered this in the past and turned it down because of legal obstacles. I recall introducing a whistleblowers protection Bill in 1999 and the then Minister for Justice, Equality and Law Reform accepted it in principle on Second Stage, after which it proceeded to Committee Stage. It never emerged from Committee Stage. That was an act of political deceit by the then Government because we were approaching a general election. The Government did not want to say it wanted to vote down a whistleblowers Bill, but, by burying it in committee, that is effectively what it did.

The advice to the then Minister from the Office of the Attorney General was that there were legal obstacles. The head of the office at the time was the present Director of Public Prosecutions. I am open to correction in saying this. Perhaps he changed his mind. We all change our minds and matters evolve in legal affairs as well as in society. The Director of Public Prosecutions would have evidence from his everyday work in regard to the prosecutorial wing of the justice system. I am sure the Minister has read his script. I was present for the speech and read it afterwards. The Director of Public Prosecutions certainly has a settled opinion that a statute such as that which he advocated is necessary. The Government seems to have set its face against it in favour of a very selective sectoral approach.

The Minister's spinners did a good job on his visit to Blackhall Place. There were a number of excited members of the media present. One hates to dampen their excitement when they work themselves up to it, but, on the basis of the amendment before us, they should note the legislation does not measure up to what they believed the Minister was promising.

I am advised there is a difference between opinion and suspicion. If the Minister says he has advice to the contrary from the Attorney General, I will accept that. With regard to my amendments, the insertion of "or suspicion" after "opinion" does protect the reporting of suspicion in addition to opinion. With regard to the knock-on effect, the Minister states the wording is inelegant.

The purpose of the second amendment is to widen the circumstances in which protection would be afforded to whistleblowers. I am advised that the new section, 8A, as drafted, only provides protection for persons who report an opinion that an offence definitely has been or is being committed, and that it should be widened to cover circumstances where a person reports a suspicion as opposed to a definite opinion.

As with Deputy Flanagan, I do not want to labour the point or hold up the meeting. The anti-corruption law we have was introduced by the British before the founding of this State. For all the professed concern about corruption, it was not until the Rainbow Government introduced the Ethics in Public Office Act 1995 that we addressed it. There is a desperate need to update the law for the reasons mentioned. I am disappointed the legislation before us is so narrow.

Deputy Flanagan referred to what is occurring in the Commercial Court. It is an extraordinary archaeological bore-hole into what has occurred in this society in the past 15 years or so. NAMA, considering the expense of its establishment, is mainly concerned with correcting title and defective and deficient paperwork produced in a slipshod, reckless and careless manner by the banks, their advisers and the developers. The NAMA bureaucracy is weighed down with that kind of work.

It is mind blowing considering the €2.6 billion provided by the Minister for Finance for fees to support the NAMA enterprise. As Deputy Flanagan stated, this is not a narrow issue. I fear that, after we enact this Bill, about which we have just been talking in the context of emigration, the Minister will have a legislative programme that will prevent us from considering this subject further. I do not know when we are likely to visit this subject again. It is a pity that it is so narrow.

Deputy Rabbitte cannot blame me for the excitability of particular journalists.

The Minister has that effect on them, the X-factor or whatever it is.

I had no spin doctor present in the Law Society. I was on my own.

It was well done before the Minister went down. Before he ever donned the monkey suit, the job was done.

There was only one television reporter there, with a cameraman and one other journalist was present. I do not know who the Deputy is getting at when he says they were excitable. Perhaps he would clarify that.

As regards this matter, generally, we are all reading off the same hymn sheet on the necessity for whistleblowing. The Government is absolutely ad idem with the views expressed by members of the committee to the effect that we have to provide, in so far as we can, the opportunity for people to come forward in confidence, provided this is not malicious or vexatious. Our record speaks for itself in that regard. We decided to take the initiative on the advice of the Attorney General in 2006. I do not know who was the incumbent Attorney General at the time. I deal with the Attorney General personally and always have done. In 2006 a Government decision was taken. We looked at this very carefully and decided to do this on a sector by sector basis because a catch-all Bill might very well not catch all, and lead to circumstances in specific areas where the effort put in train on a composite basis did not relate to specific issues. I have listed out a number of Bills, but to show how we have followed our words in 2006 with action, we have introduced whistleblowing provisions in the Safety, Health and Welfare at Work Act 2005, the Garda Síochána Act 2005, the Employment Permits Act 2006, the Health Act 2007, the Communications Regulation (Amendment) Act 2007, the Consumer Protection Act 2007, the Chemicals Act 2008 and the Charities Act 2009.

Whistleblowing is also included in the Bills coming before the House such as the Employment Law Compliance Bill 2008, the Prevention of Corruption (Amendment) Bill 2008, the Labour Services (Amendment) Bill 2009, which is now enacted, the Employment Agency Regulation Bill 2009, the Property Services (Regulation) Bill 2009 and also the NAMA legislation to which the Deputy referred earlier.

While the Deputy might have been surprised by my comments at the Law Society, I was surprised by his comments afterwards because they led me to believe that he had not read section 2 of this particular Bill that we are dealing with. On a general point, this Bill was drafted as the result of a request from the OECD relating to our corruption legislation. In fact this Bill goes much further than what the OECD required. The convention of the OECD this flows from relates only to the bribing and corruption of foreign officials, while this Bill applies to all officials, both present on this territory and on foreign territory as well. It applies to all officials, including those who are not public officials. I was surprised by the Deputy's comments, because obviously he was not aware of what was before the Dáil at the time.

I can assure the Minister that I was fully aware.

This Bill also goes further, in that it provides for confidential recipience for reports of corruption offences. The convention did not include those, and it also provides for the reporting to consular officials in respect of corruption abroad, and reports to foreign police forces. However, on the point the Deputy makes about this not catching various issues in the financial area, I would suggest that it does. Subsection (2) states that a person who knowingly gives to any agent, or an agent who knowingly uses with intent to deceive his or her principal, any receipt, account or other document in respect of which the principal is interested, and which contains any statement which is false, erroneous or defective in any material in particular and which to his or her knowledge is intended to mislead the principal, shall be guilty of an offence. That is in the Prevention of Corruption (Amendment) Act 2001, which was the Act before this. That would relate to the issue of corruption in the management of shares, for instance, that could be taken in that account.

On what the DPP had to say, we would agree with him. In the event of more scope for legislation in this area, the Attorney General, subsequent to the DPP's comments, asked him to flesh out what he believes is further required. Obviously, we shall be more than willing to put into law the suggestions the DPP is making, subject to Government approval. The DPP may very well have been making the comments he did in the context of this legislation, which might not have been part of his thought process. I am not saying he was not aware of it, but this legislation is not yet enacted, so it is still not law. Obviously we cannot proceed on it until such time as it is.

Long before the DPP said anything in this regard, three or four months ago I asked my officials to bring forward a consolidation Bill on corruption because I felt there was a plethora of legislation in this area, and it would be important to have the whole area consolidated in one Act. We have been criticised by some of the bodies who look at this area on the basis that we did not have one item of legislation dealing with the entire issue of corruption. If there are any other suggestions from the DPP or anyone else in relation to corruption that can be dealt with in the context of the consolidation Bill when we bring it forward, they will be welcomed.

The Deputy has a view to the effect that it can be dealt with by a composite Bill. The Government has had a view for a number of years, which has worked reasonably well to date, that it is to be dealt with on a sectoral basis, but obviously our minds are not closed to that. In the accumulation of the 2001 Act and this particular legislation there is very wide scope for a prosecution to be taken against any public official who is involved in bribery or corruption. Neither is it just public officials but any official. There is plenty of scope in the two existing items of legislation to provide for the even the situations that have arisen and become public in recent times. I asked the Garda Commissioner some months ago, orally and in writing, in view of the ongoing investigations into alleged malpractices in the banking area whether there was a need for further legislation or if the Garda had any other suggestions to make, given that it was involved in this investigation, and I am awaiting his response.

I believe we are reasonably well covered, but that is not to say that we are not open to amendment in due course.

We do not think this is the Bill in which to put Deputy Flanagan's amendment. This is a particularly focused Bill, based on an OECD convention. We have gone dramatically further in its scope, but while I am not accepting the amendments, I do not in any way disagree with the principle that we are ad idem on the provision of whistleblowing across the board, and not just in the area of corruption.

I am going to come back to this on Report Stage, but I feel the Minister is too narrow in his interpretation.

Amendment agreed to.
SECTION 4
Amendments Nos. 4 and 5 not moved.

I move amendment No. 6:

In page 5, line 20, to delete "has been or is being" and substitute "may have been or may be being".

I would like to hear why the Minister believes the distinction I draw does not apply.

This amendment has already been discussed.

Amendment put and declared lost.
Section 4 deleted.
NEW SECTION

I move amendment No. 7:

In page 8, before section 5, to insert the following new section:

5.—The Act of 2001 is amended by substituting the following section for section 9:

9.—(1) Where an offence under the relevant Acts has been committed by a body corporate and is proved to have been committed with the consent, connivance or approval of, or to have been attributable to any neglect on the part of, a person who was either—

(a) a director, manager, secretary or other similar officer of the body corporate, or

(b) a person purporting to act in any such capacity, that person shall also be guilty of an offence and liable to be proceeded against and punished as if the person were guilty of the first-mentioned offence.

(2) Where the affairs of a body corporate are managed by its

members, subsection (1) shall apply in respect of the acts or defaults of a member in connection with the member's functions of management as if the member were a director or manager of the body corporate.

(3) Subsections (1) and (2) shall, with any necessary modifications, apply in respect of offences under the relevant Acts committed by an unincorporated body.

(4) Notwithstanding section 10(4) of the Petty Sessions (Ireland) Act 1851, summary proceedings for an offence under the relevant Acts to which that provision applies may be instituted—

(a) within 12 months from the date on which the offence was committed, or

(b) within 6 months from the date on which evidence sufficient, in the opinion of the person instituting the proceedings, to justify proceedings comes to that person’s knowledge,

whichever is the later, provided that no such proceedings shall be commenced later than 2 years from the date on which the offence concerned was committed.

(5) For the purposes of subsection (4), a certificate signed by or on behalf of the person initiating the proceedings as to the date on which evidence referred to in that subsection came to his or her knowledge shall be evidence of that date and, in any legal proceedings, a document purporting to be a certificate under this subsection and to be so signed shall be admitted as evidence without proof of the signature of the person purporting to sign the certificate, unless the contrary is shown.

The primary purpose of this amendment is to make explicit provision for the application of offences under the Corruption Acts 1889 to 2010 to unincorporated bodies. Section 9 of the 2001 Act provides for responsibility for corruption offences under the legislation to be attributed to certain of its officers, so that individuals, as well as the corporate body, can be held liable for the offence, where they have contributed to the commission of the offence, whether directly or by wilful neglect of their responsibilities. Section 5 provides that the provision covered corruption offences under the Prevention of Corruption Acts 1889 to 2008.

The effect of this amendment is to provide clarification that offences under the Acts, which formerly covered corporate bodies, are also applicable to offences carried out by unincorporated bodies.

In the OECD report on Ireland's application of the OECD convention relating to foreign bribery, the organisation recommended an express statement relating to unincorporated legal persons "to remove ambiguity" about liability of this sector. The proposed Government amendment clarifies that the provision. Subsections (4) and (5) are standard provisions, relating respectively, to time limits for summary proceedings and evidence in respect of verification of documents.

I accept what the Minister has said. This is a new section 5 and it is somewhat strengthened.

I had originally intended opposing section 4, but in view of the fact that we accepted the Minister's amendment, my opposition is somewhat redundant.

I agree to this as well.

Amendment agreed to.
Section 5 deleted.
NEW SECTION

I move amendment No. 8:

In page 8, before section 6, to insert the following new section:

6.—The Act of 2001 is amended by inserting the following Schedules after section 10:

"SCHEDULE 1

REDRESS FOR CONTRAVENTION OF SECTION 8A(5)*

Complaints to rights commissioner.

1. (1) An employee (or, in the case of an employee who has not reached the age of 18 years, his or her parent or guardian) or, with the consent of the employee, any trade union of which the employee is a member may present a complaint to a rights commissioner that his or her employer has contravened section 8A(5)* in relation to the employee and it shall not be necessary for the employee to have at least one year's continuous service with the employer concerned in order to present such complaint.

(2) Where a complaint under subparagraph (1) is made, the rights commissioner shall—

(a) give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint,

(b) give a decision in writing in relation to it, and

(c) notify the parties of that decision.

(3) A decision of a rights commissioner under subparagraph (2) shall do one or more of the following:

(a) declare that the complaint was or, as the case may be, was not well founded;

(b) require the employer to take a specified course of action, which may include, in a case where a penalisation constitutes a dismissal within the meaning of section 8A(13)*, re-instatement or re-engagement, with or without compensation, as the rights commissioner may consider appropriate;

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 104 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977; and the references in clauses (b) and (c) to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership.

(4) A rights commissioner shall not entertain a complaint under this paragraph if it is presented to him or her after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(5) Notwithstanding subparagraph (4), a rights commissioner may entertain a complaint under this paragraph presented to him or her after the expiration of the period referred to in subparagraph (4) (but not later than 6 months after such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to exceptional circumstances.

(6) A complaint shall be presented by giving notice of it in writing to a rights commissioner and the notice shall contain such particulars and be in such form as may be specified from time to time by the Minister for Enterprise, Trade and Innovation.

(7) A copy of a notice under subparagraph (6) shall be given to the other party concerned by the rights commissioner.

(8) Proceedings under this paragraph before a rights commissioner shall be conducted otherwise than in public.

(9) A rights commissioner shall furnish the Labour Court with a copy of each decision given by the commissioner under subparagraph (2).

Appeals from decisions of rights commissioner.

2. (1) A party concerned may appeal to the Labour Court from a decision of a rights commissioner under paragraph 1(2) and, if the party does so, the Labour Court shall give the parties an opportunity to be heard by it and to present to it any evidence relevant to the appeal, shall make a determination in writing in relation to the appeal affirming, varying or setting aside the decision and shall communicate the determination to the parties.

(2) An appeal under this paragraph shall be initiated by the party concerned giving, within 42 days (or such greater period as the Court may determine in the particular circumstances) from the date on which the decision to which it relates was communicated to the party, a notice in writing to the Labour Court containing such particulars as are determined by the Labour Court under clauses (e) and (f) of subparagraph (4) and stating the intention of the party concerned to appeal against the decision.

(3) A copy of a notice under subparagraph (2) shall be given by the Labour Court to any other party concerned as soon as practicable after the receipt of the notice by the Labour Court.

(4) The following matters, or the procedures to be followed in relation to them, shall be determined by the Labour Court, namely:

(a) the procedure in relation to all matters concerning the initiation and the hearing by the Labour Court of appeals under this paragraph;

(b) the times and places of hearings of such appeals;

(c) the representation of the parties to such appeals;

(d) the publication and notification of determinations of the Labour Court;

(e) the particulars to be contained in a notice under subparagraph (2); and

(f) any matters consequential on, or incidental to, the foregoing matters.

(5) The Labour Court may refer a point of law arising in proceedings before it under this paragraph to the High Court for its determination and the determination of the High Court shall be final and conclusive.

(6) A party to proceedings before the Labour Court under this paragraph may appeal to the High Court from a determination of the Labour Court on a point of law and the determination of the High Court shall be final and conclusive.

Paragraphs 1 and 2: supplemental provisions.

3. (1) The Labour Court shall, on the hearing of any appeal referred to it under paragraph 2, have power to take evidence on oath or on affirmation and for that purpose may cause persons attending as witnesses at that hearing to swear an oath or make an affirmation.

(2) The Labour Court may, by giving notice in that behalf in writing to any person, require such person to attend at such time and place as is specified in the notice and—

(a) to give evidence in relation to any matter appealed to the Labour Court under paragraph 2, or

(b) to produce any document specified in the notice relating to the matter in the person’s possession or power,or both.

(3) A witness at a hearing of an appeal before the Labour Court has the same privileges and immunities as a witness before the High Court.

(4) Where a decision of a rights commissioner in relation to a complaint under this Schedule has not been carried out by the employer concerned in accordance with its terms, the time for bringing an appeal against the decision has expired and no such appeal has been brought or, if such an appeal has been brought, it has been abandoned, the employee concerned may bring the complaint before the Labour Court and the Labour Court shall, without hearing the employer concerned or any evidence (other than in relation to the matters aforesaid), make a determination to the like effect as the decision.

(5) The bringing of a complaint before the Labour Court under subparagraph (4) shall be effected by giving to the Labour Court a written notice containing such particulars (if any) as may be determined by the Labour Court.

(6) The Labour Court shall publish, in a manner it considers appropriate, particulars of any determination made by it under any of clauses (a), (b), (c), (d), (e) and (f) of subparagraph (4) of paragraph 2 (not being a determination as respects a particular appeal under that paragraph) and subparagraph (5).

(7) In proceedings under this Schedule before a rights commissioner or the Labour Court in relation to a complaint that section 8A(5)* has been contravened, it shall be presumed, until the contrary is proved, that the employee concerned acted reasonably and in good faith in forming the opinion and making the communication concerned.

(8) (a) If penalisation of an employee, in contravention of section 8A(5)*, constitutes a dismissal of the employee, as referred to in paragraph (a) of the definition of ‘penalisation’ in section 8A(16)*, the employee may institute proceedings in respect of that dismissal under the Unfair Dismissals Acts 1977 to 2007 or to recover damages at common law for wrongful dismissal and, if he or she does so, such dismissal may not be presented to a rights commissioner under paragraph 1(1).

(b) If an employee (or, in the case of an employee who has not reached the age of 18 years, his or her parent or guardian) presents a complaint to a rights commissioner under paragraph 1(1) in respect of a dismissal referred to in clause (a), the employee or his or her parent or guardian, as the case may be, may not institute proceedings in respect of that dismissal under the Unfair Dismissals Acts 1977 to 2007 or to recover damages at common law for wrongful dismissal.

Enforcement of determinations of Labour Court.

4. (1) If an employer fails to carry out in accordance with its terms a determination of the Labour Court in relation to a complaint under paragraph 1 within 28 days from the date on which the determination is communicated to the parties, the Circuit Court shall, on application made to it in that behalf by—

(a) the employee concerned (or, in the case of an employee who has not reached the age of 18 years, his or her parent or guardian), or

(b) with the consent of the employee, any trade union of which the employee is a member,

without hearing the employer or any evidence (other than in relation to the matters aforesaid), make an order directing the employer to carry out the determination in accordance with its terms.

(2) The reference in subparagraph (1) to a determination of the Labour Court is a reference to a determination in relation to which, at the expiration of the time for bringing an appeal against it, no such appeal has been brought or, if such an appeal has been brought, it has been abandoned, and the reference in that subparagraph to the date on which the determination is communicated to the parties shall, in a case where such an appeal is abandoned, be read as a reference to the date of such has been brought, it has been abandoned, and the reference in that subparagraph to the date on which the determination is communicated to the parties shall, in a case where such an appeal is abandoned, be read as a reference to the date of such abandonment.

(3) In an order under this paragraph providing for the payment of compensation, the Circuit Court may, if in all the circumstances it considers it appropriate to do so, direct the employer concerned to pay to the employee concerned interest on the compensation at the rate referred to in section 22 of the Courts Act 1981 in respect of the whole or part of the period beginning 28 days after the day on which the determination of the Labour Court is communicated to the parties and ending on the day immediately before the day on which the order of the Circuit Court is complied with.

(4) An application under this paragraph to the Circuit Court shall be made to the judge of the Circuit Court for the circuit in which the employer concerned ordinarily resides or carries on any profession, trade, business or occupation.

Interpretation.

5. Section 8A(16)* shall apply to the interpretation of this Schedule as it applies to the interpretation of section 8A*.

SCHEDULE 2

PROVISIONS APPLICABLE IN CASE OF COMMUNICATIONS

REFERRED TO IN SECTION 8A* MADE IN CONFIDENCE

Definitions.

1. In this Schedule—

‘alleged relevant offence', in relation to a confidential communication, means the offence under the Prevention of Corruption Acts 1889 to 2010 alleged in the communication;

‘appropriate person' has the meaning assigned to it by section 8A(16)*;

‘civilian' means a member of the civilian staff of the Garda Síochána; ‘Commissioner' means—

(a) the Commissioner of the Garda Síochána, or

(b) a deputy commissioner, or an assistant commissioner, authorised under section 32 of the Garda Síochána Act 2005 to perform the functions of the Commissioner;

‘confidential communication' means a communication referred to in section 8A* made to an appropriate person who is a confidential recipient;

‘confidential communicator', in relation to a confidential communication, means the person who made the confidential communication;

‘confidential recipient' means a person appointed under paragraph 2 to receive confidential communications;

‘member' means—

(a) a member of the Garda Síochána, or

(b) a member of the Police Service of Northern Ireland appointed to a rank in the Garda Síochána under section 52 or 53 of the Garda Síochána Act 2005.

Appointment of confidential recipients.

2. The Commissioner may appoint a member or civilian, or members or civilians, as a confidential recipient or recipients to receive confidential communications.

Confidential communication.

3. (1) Where a confidential communication has been made to a confidential recipient, the confidential communicator shall disclose to the recipient any document, record or information in his or her possession or control which relates to the alleged relevant offence.

(2) Information disclosed under subparagraph (1) shall be in such form as the confidential recipient may require.

(3) A confidential communication may not be made anonymously.

Transmission of confidential communication.

4. Where a confidential communication has been made to a confidential recipient, the recipient shall, as soon as is practicable, transmit the communication to the Commissioner.

Commissioner, etc., must take steps to ensure that identity of confidential communicator is not disclosed.

5. Where a confidential communication has been transmitted to the Commissioner pursuant to paragraph 4, the Commissioner, and any person acting on his or her behalf, in examining the communication or investigating the alleged relevant offence, shall take all practicable steps to ensure that the identity of the confidential communicator is not disclosed.

Protection of confidential communicator's identity.

6. (1) Where a confidential communication has been made to a confidential recipient, the recipient may disclose the identity of the confidential communicator to the Commissioner only if each one of the following provisions is complied with:

(a) the Commissioner—

(i) must believe that knowledge of the identity of the communicator is essential for the proper examination of the communication or the investigation of the alleged relevant offence;

(ii) must inform the recipient of his or her reasons for that belief;

(b) the recipient must be satisfied that the Commissioner, before informing the recipient under clause (a)(ii), has taken all practicable steps to advance the examination of the communication or the investigation of the alleged relevant offence;

(c) the recipient must have informed the communicator of the situation and considered the communicator’s views regarding the disclosure of his or her identity; and

(d) the recipient must further be satisfied that, having regard to all the circumstances, the disclosure is essential for the proper examination of the communication or the investigation of the alleged relevant offence.

(2) Where a confidential communication has been transmitted to the Commissioner pursuant to paragraph 4, the identity of the confidential communicator may be disclosed by the Commissioner to a member or civilian only where the Commissioner believes that the disclosure is essential for the proper examination of the communication or the investigation of the alleged relevant offence.

(3) Subject to subparagraph (4), any member or civilian to whom the identity of a confidential communicator has been disclosed under subparagraph (2) may not disclose the identity to any other person without the authorisation in writing of the Commissioner.

(4) The Commissioner may give an authorisation referred to in subparagraph (3) only where he or she believes that it is essential for the proper examination of the confidential communication or the investigation of the alleged relevant offence.

(5) Unless otherwise authorised under this paragraph, a confidential recipient, a member, or a civilian, to whom the identity of a confidential communicator has been disclosed may disclose the identity only with the consent in writing of the confidential communicator or under an order of a court.".".

Section 6 contains two Schedules to the Bill. The first Schedule is modelled on Schedule 2 of the Employment Compliance Bill 2008, which is currently before the Houses. That Bill contains provisions on compliance with employment legislation. The first Schedule covers redress for contraventions against employees, following whistleblowing reports under section 8A(5) of the Bill. As Deputies will have noted, Section 8A , inserted by section 4 of the Bill, provides immunity for any person who reports in good faith, offences under the Prevention of Corruption Acts 1889 to 2010, to an appropriate person.

The effect of this Schedule is to provide redress for employees penalised under the provisions of section 4 of the Bill, which provides protection for persons reporting offences under the Prevention of Corruption Acts 1889 to 2010. The procedures enable employees to present a complaint to a rights commissioner. Decisions of the rights commissioner are then given to the Labour Court, and there is provision for an appeal by the parties concerned to that court.

Schedule 2 provides for equivalent matters in respect of communications made in confidence to the Garda Síochána, and takes into account the provisions in the Garda Síochána (Confidential reporting of Corruption or Malpractice) Regulations 2007, which provide a mechanism for confidential whistleblowing by members of the Garda, and civilian staff of the Garda, regarding suspected corruption or malpractice by members or civilian staff of the Garda Síochána. In this regard, the Garda Síochána has provided us with observations on the provisions in this Schedule, and I may consider amendments on Report Stage.

I would accept what the Minister has said. There is anecdotal evidence of potential whistleblowers and would-be whistleblowers being penalised, ostracised, fired and discriminated against. It is absolutely essential that we have strong redress.

It never ceases to amaze me, looking at the long-running tribunals or some of the other incidents of corruption, that it has been so exceptional for an employee to come out and say what some employees undoubtedly must have noticed and must have known. I think that is because of the fear of the consequences of being a whistleblower. There is a good deal of evidence to show that it is the whistleblower who ends up being the fall guy. It is an additional argument for a statute for the protection of whistleblowers. I am not entirely sure how all-encompassing this is.

If an employee suspects that his employer is fixing the books in order to avoid paying tax, does the employee have the protection envisaged under this Schedule?

I am not sure. These may be covered under taxation law. Under this Bill and under the 2001 Act, it may be that the person could be prosecuted for tax offences as a result of the confidential receipt of a report for a corrupt practice. This Bill goes further than what the OECD required. It gives protection for confidential reports given in respect of corruption. If it could be said that the taxation offences in which the employer was participating constituted corruption, then the answer is "Yes". However, there may well be legislation in the tax area that would cater for this.

The Minister's answer betrays the reason it is so difficult for employees in such circumstances to know their rights.

This legislation puts in place a template for them to know the rights. Ultimately however, one cannot legislate for human frailty and human nature. There is an attitude abroad in this country about people snitching or informing and people are reluctant to come forward and blow the whistle. However, over the years, the Legislature and, in fairness, the media, have given significant protection to those who have come forward to state that malpractices were going on in different parts of our society. As legislators, members should encourage this and should protect those who come forward to ensure that if they overcome whatever human views they may have regarding coming forward with information and snitching on someone, they will get the full protection of the law.

While it is all very well for the Minister to comment on the tradition in certain areas of Irish life regarding a reluctance to inform, we have evolved into a normal polity by now. There is no doubt but that employees have come a cropper because they have brought to attention wrongdoing. I am unsure that what is being considered here goes far enough. For example, I know a former civil servant who was certain she had uncovered highly disturbing matters relating to child abuse in her official capacity and who ended up losing her employment, which is highly unusual in the Civil Service. It is a troubling case and no one present can be naïve about what has gone on in respect of child abuse. I do not wish to elaborate any further but all members know that what happened in some cases was not exactly accidental. This is an area in which I hope the Minister means it when he states that he has an open mind and that interaction is going on between the Attorney General's office and the Director of Public Prosecutions about a wider statute.

May I make a general point on whistleblowing in respect of child abuse? I understand there is whistleblowing protection in the Health Act 2007 to which I referred.

There was no such protection at the time to which I refer.

As for the penalisation of employees if they come forward, I note one is dealing with human nature. However, I revert to the point I made that members have a duty to protect people who come forward. I refer the Deputy to section 4 of the Bill in which "penalisation" encompasses a number of things including "any act or omission by an employer, or a person acting on behalf of an employer, that affects an employee to his or her detriment with respect to any term or condition of his or her employment". It goes on to list out measures such as unfair treatment, coercion, discrimination, injury, threats of reprisal, imposition of administering discipline, transfer of duties, demotion and suspension.

What about ostracisation?

It probably would be very hard to prove. I think there could be a few ostracised Deputies in the Fine Gael Party soon enough.

Amendment agreed to.
Section 6 deleted.
Section 7 agreed to.
Question proposed: "That the Title be the Title to the Bill."

It is agreed, subject to my reverting on Report Stage in response to the Minister's comments about the Title not being satisfactory.

Question put and agreed to.

I thank the Minister and his officials for their attendance and members for their co-operation.

Bill reported with amendments.
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