I move:
That, notwithstanding anything in Standing Orders, that the order of the Dáil of 18 June 2002, to the extent that it orders that the Whistleblowers Protection Bill 1999 be considered in committee of the whole Dáil, be discharged and that the Bill be withdrawn.
As Members will recall, the Whistleblowers Protection Bill 1999 was the subject of a Private Members debate in this House on 7 and 8 March last. During the course of the three hour debate, my colleague, Deputy Martin, Minister for Enterprise, Trade and Employment, and l both outlined in detail to the House the steps the Government had taken since 1999 on Deputy Rabbitte's Private Members Bill from June 1999. I take this opportunity to advise the House yet again of these steps and the reasons the Government is withdrawing the Whistleblowers Protection Bill 1999 from the Order Paper of this House and addressing the important and sensitive issue of whistleblowing on a sectoral basis in the future.
The Whistleblowers Protection Bill 1999 was introduced in the Dáil by Deputy Rabbitte on 24 March 1999. The Government, at its meeting on 15 June 1999, decided to "accept the Bill, in principle, at Second Stage, subject to indicating to Deputy Rabbitte that amendments will be proposed at Committee Stage by the Tánaiste and Minister for Enterprise, Trade and Employment following consultations with the interested parties and following on the advice of the Attorney General."
Arising from that, my colleague, the Government Chief Whip and the then Minister of State with responsibility for labour, trade and consumer affairs, Deputy Kitt, announced in the Dáil on 15 June 1999 that he fully supported any meaningful measures to increase the protection of workers and, therefore, would not oppose the referral of the Bill to committee. He also indicated that many of the provisions of the Bill would have to be examined more closely and would necessitate further consultations with the social partners and other interested bodies. The Bill passed Second Stage in the Dáil on 16 June 1999 and was referred to the Select Committee on Enterprise and Small Business.
In July 2000, following examination of the Bill, the Department, in consultation with the Office of the Parliamentary Counsel, circulated a draft memorandum for Government to all Departments. As a follow-on from observations received from Departments, a total of 45 amendments were prepared by the Department. The proposed amendments, if adopted, would have resulted in more comprehensive legislation, which would provide protection from civil liability or penalisation during their employment for employees, including agency workers, who make — to the specified persons or appropriate officers of public bodies, so designated for the purposes of the Bill — certain protected disclosures of information obtained in the course of their employment, as distinct from making certain disclosures about the conduct of the business and affairs of their employers.
At its meeting on 27 July 2001, the Government approved the re-drafting and amending of the Whistleblowers Protection Bill 1999 on the lines of the 45 draft amendments, subject to further consideration being given to the implications for the Central Bank and related issues and the breadth of the grounds, in terms of future behaviour, on which the terms of the Bill could be invoked. The Government amendments raised a number of detailed and complex issues which, according to the advice of the Office of the Parliamentary Counsel, would require substantial re-drafting of the Bill.
These related to issues such as the inclusion of the Central Bank under the Bill. Clarifications were sought that the terms "employer" and "employee" did not include the Central Bank and its staff, the issue being that the bank's confidentiality regime was derived from obligations regarding professional secrecy imposed under EU law. It would be necessary to avoid any possible conflict with the Central Bank Acts and/or EU law, as a series of legal advices were received from senior counsel and the Attorney General's office which indicated inconsistencies with certain EU commitments relating to conditions for the disclosure of information.
There was also the issue of the provision of the protections of the Bill to public servants. In particular, issues arose relating to the operation of the Official Secrets Act 1963. In 2002, the Office of the Parliamentary Counsel subsequently indicated that the proposed Government amendments would need further consultations, particularly with regard to: the protection of trade-secret type industrial processes, particularly where they overlap with intellectual property rights, as the Bill should not create a grey area between what matters are to be included in "whistleblowing" and the protection of such intellectual property rights; clarification of the nature of the protections that would be required under the Unfair Dismissals Acts 1977 to 1993, to employees who "whistleblow" reasonably and in good faith; and the Official Secrets Act 1963.
In addition, the Attorney General's office also provided further complex legal advice relating to the obligations on designated bodies and the Central Bank of Ireland to report certain suspected money laundering activities to the Revenue Commissioners. Further progress on re-drafting the Bill was overtaken by the dissolution of the Dáil in April 2002 and the general election in May 2002. The Government decided in June 2002 to restore to the Dáil Order Paper the 1999 draft Bill as part of a number of draft legislative measures circulated by the Chief Whip on 10 June 2002. This was achieved on foot of a motion taken in the House on 18 June 2002. The Bill was placed on the Order Paper of the House and became part of the Government's legislative programme, which is a commitment to legislate.
Progress on the re-drafting of the Bill was raised on a number of occasions in the House, either on the Order of Business or in a number of parliamentary questions. In addition, the Taoiseach's private office wrote to Deputy Howlin on 5 February 2003. The Taoiseach's private office also contacted Deputy Howlin on the issue on 21 November 2003.
ln light of the complexities encountered, the possibility of continuing to address the issue on a sectoral basis was looked into as such an approach began to look more effective and practical. Following consideration, this approach was conveyed to the House on the Order of Business on 19 May 2004 by the then Minister for Defence, Deputy Michael Smith, who stated:
It is now considered, on reflection, that the provision of statutory protection for whistleblowers on a sectoral basis might provide a better and more focused approach to dealing with this issue as in the case of section 4 of the Protection for Persons Reporting Child Abuse Act and section 50 of the Competition Act. ln such circumstances, proceeding with the 1999 Bill is not viewed as a priority. The matter may be addressed at some future time when priorities in terms of the Government's legislative programme have been implemented.
The approach — that Deputy Rabbitte's Bill was no longer a Government priority — was repeated by the Taoiseach on the Order of Business on 2 November 2004 when he stated: "In such circumstances, proceeding with the 1999 Bill, as it is five years old, is not viewed as a priority. It may be addressed at some future time when the priorities of the legislative programme will be implemented".
The sectoral approach was also repeated on a number of occasions during 2004 either on the Order of Business or in replies to a number of parliamentary questions in the House. Throughout this period, the Whistleblowers Protection Bill 1999 continued to be retained on the Government's legislative programme. However, in the light of further exchanges on the Order of Business on 15, 16 and 30 June and on 1 July 2005, and in replies given to parliamentary questions on the issue on 28 September 2005, 2 November 2005 and 6 December 2005, the Minister, Deputy Martin, and I believed that it was necessary to bring clarity to this issue.
Over recent months, we have both been giving consideration to formalising a sectoral approach to the issue of "whistleblowing". I will again outline to the House what I mean by this and why I believe it is the best approach. A sectoral approach will enable the speedier introduction of relevant measures, appropriate to different sectors, to address the important issues identified in Deputy Rabbitte's original Bill. However, as already indicated, the extensive work on preparing official amendments to the Private Members' Bill raised a number of complex legal questions relating to: inclusion of the Central Bank having regard to the bank's confidentiality regime; the obligation on designated bodies and the Central Bank of Ireland to report certain suspected money laundering to the Revenue Commissioners; the Official Secrets Act 1963 and its implications for civil servants; and the protection of trade-secret type industrial processes. A single all-encompassing legislative proposal on "whistleblowing" would be complex and cumbersome, take considerable time to enact and would not be user friendly to the general public.
The benefits of the suggested sectoral approach can be evidenced by legislative developments in the period since Deputy Rabbitte's Bill of 1999. The issues raised in the context of the original Bill are so important as not to allow for postponement until perfect and comprehensive legislation can be devised. Accordingly, both the Minister, Deputy Martin and I, as well as our ministerial colleagues have been availing of opportunities to include a suitable "whistleblowing" provision in draft legislation, where appropriate. As indicated earlier, while still seeking to solve drafting problems in the original Bill, the Government included suitable provisions in a series of legislative measures adopted by the House in recent years. These legislative measures were the subject of lengthy discussions during their passage through the Houses, during which the Opposition would have had the opportunity to raise any concerns its Members might have had about workers who might want to ''whistleblow'' in good faith.
Section 4 of the Protections for Persons Reporting Child Abuse Act 1998 provides immunity from civil liability to persons who report child abuse reasonably and in good faith. Under the Ethics in Public Office Act 2001, the Standards in Public Office Commission is empowered to investigate complaints about alleged contraventions of the Ethics in Public Office Act.
As far as complaints are made, inter alia, by civil servants, against other civil servants, the Ethics in Public Office Acts 1995 to 2001 provide at section 5(1) that “where a person makes a complaint to the Commission in good faith, no cause of action shall lie against the person and no disciplinary action shall be taken against him or her as a result of reporting his or her concerns to the Commission”. Section 5(4) provides that a person who takes disciplinary action against a complainant in this context will be guilty of an offence and liable to a substantial fine.
Section 50 of the Competition Act 2002 provides that a person shall not be liable for damages in respect of the communication, whether in writing or otherwise, by him or her to the Competition Authority. The 2002 Act also provides that an employer shall not penalise an employee for having formed an opinion of the kind referred to in section 50(1) of the Act and communicated it, whether in writing or otherwise, to the authority if the employee has acted reasonably and in good faith in forming that opinion and communicating it to the authority.
Section 27 of the Safety, Health and Welfare at Work Act 2005 provides for protection against dismissal and penalisation of employees who, in good faith, take steps to protect themselves or others in a workplace situation.
Section 124 of the Garda Síochána Act 2005 provides for regulations providing for the establishment of a charter containing guidelines and mechanisms to enable members of the Garda Síochána or other persons to report in confidence allegations of corruption and malpractice within the Garda Síochána.
The Government decided on 7 March 2006 to formalise the sectoral approach as part of its policy on addressing the issue of whistleblowing by requiring Ministers, in consultation with the Office of the Parliamentary Counsel, with legislation either on the Government's legislative programme for the current Oireachtas session or currently in the course of preparation to include, where appropriate, whistleblowing provisions therein. Such an approach also acknowledges situations where the provision of whistleblowing provisions may not be appropriate.
As a consequence of the Government decision and as part of continuing this sectoral approach, I moved a Government amendment on Committee Stage of the Employment Permits Bill 2005 on Thursday, 9 March, to include a new section 25, entitled "Penalisation of Employees", to provide for whistleblowing provisions in that Bill. This amendment provides important protections to employees from overseas who act to report wrongdoing by employers to either a member of the Garda Síochána or the Minister in respect of the new Act or the earlier Employment Permits Act 2003. The amendment is along the lines of the provisions of previous sectoral legislation as outlined earlier and was agreed without discussion.
I have attempted to give the House some flavour of the exceptional legal difficulties encountered in seeking to give legislative effect to the provisions in the original Bill. I have no reason to believe that these problems can be satisfactorily resolved in the near future, despite the existence of goodwill and hard work on all sides.
The important issues that gave rise to Deputy Rabbitte's original proposal have not diminished in relevance. While appropriate provisions to address these issues will continue to be included in a number of statutes, there can be no sense of complacency. It is imperative that we continue to ensure that persons providing sensitive information in the public interest are provided with appropriate safeguards.
As the House considers each Bill that comes before it, it will have an opportunity to decide on the whistleblowing safeguards most appropriate to different sectors and to the particular needs of persons working therein. The sectoral approach also means that future measures in this area will be informed by the experience of earlier measures already on the Statute Book.
All Deputies have a role to play in this regard and the Government will certainly be prepared to consider contributions to this end from all sides of the House. I am convinced that the sectoral approach offers the best prospect of effectively addressing these important issues in a timely and effective manner.
Against this background and on behalf of the Government, I ask the House to support it in its decisions to proceed on a case-by-case basis with appropriate whistleblowing provisions, as either enacted by the House or currently before it, rather than await the possible resolution of wider complex legal issues. I also ask the House to note that the Government's approach will continue to provide a series of opportunities for Members to contribute to the formulation and enactment of appropriate whistleblower provisions on a sectoral basis. Finally, I ask the House to endorse the Government's intention to continue to pursue the sectoral approach which will supersede the all-encompassing approach proposed in Deputy Rabbitte's Private Members' Bill of 1999.
Under the sectoral approach, I commend the motion to the House that, notwithstanding anything in Standing Orders, the order of the Dáil of 18 June 2002, to the extent that it orders that the Whistleblowers Protection Bill 1999 be considered in Committee of the whole Dáil, be discharged and that the Bill be withdrawn.
