Protected Disclosures Bill 2013 [Seanad]: Second Stage

I move: "That the Bill be now read a Second Time."

The Bill I am introducing here today, which completed its passage through Seanad Éireann on 20 November 2013, fulfils a commitment in the programme for Government to introduce whistleblower legislation and the several commitments I have made to introduce a single overarching framework for protection of workers in all sectors. As I have been anxious to ensure that the Bill stands shoulder to shoulder with the best in class and that the protections available to a whistleblower in Ireland meet with best international practice, the formulation of these proposals involved a wide process of consultation, as Deputies opposite are well aware. I have also closely monitored the recommendations made by the many international bodies and academics working in this area. I am pleased to say, therefore, that in addition to meeting and in some cases improving the frameworks for the protection of whistleblowers set out by many authoritative bodies, such as the G20, the Council of Europe, the OECD, Transparency International and Public Concern at Work, much of the good advice I received from those consultations, and especially from the Oireachtas Joint Committee on Finance, Public Expenditure and Reform, has found its way into the Bill. I thank the Deputies opposite for their input in that regard.

I have said elsewhere that legislative protections for whistleblowers must be seen as more than mere reactive responses to employers who wish to suppress information on darker deeds. I see the introduction of such protections as a catalyst for a change that involves viewing openness and transparency as an asset rather than a liability and a move towards a culture that values the contribution of employees and citizens and recognises those contributions as positive, effective tools in working towards the achievement of the common good rather than as something to be limited or destroyed. Good governance clearly demands that persons in positions of power and management be open, responsible and accountable for their actions. Good employers have nothing to fear from their employees reporting things that are going wrong. The ideal, therefore, is to encourage employers to adopt a culture that readily accepts reports of wrongdoing from its workers. Any responsible employer should be happy to accept such reports so that corrective action can be taken sooner rather than later.

The Protected Disclosures Bill addresses a significant gap in Ireland's anti-corruption framework. That gap was highlighted in particular in the final report of the Mahon tribunal, which recommended the introduction of pan-sectoral whistleblower protection legislation. The Bill also addresses the significant issue highlighted in the Nyberg report on Ireland's banking crisis that those expressing contrarian views risked sanctions and potential loss of employment. I can do no better here than to refer to the observation made by the Oireachtas joint committee in response to a comment made to it in the course of its consultations when considering the draft heads of the Bill that the introduction of legislation such as this could damage Ireland's international reputation. The emphatically made observation was that Ireland's international reputation could be damaged by not having such legislation.

The Bill introduces a framework which seeks to regulate whistleblowing not only in the best interests of the whistleblower and employer but also in the public interest. It substantially replaces the existing patchwork of sectoral protections and provides a single overarching framework of protection for whistleblowers in a uniform manner in all sectors of the economy. Whereas some special rules for disclosures relating to law enforcement are included, it is important to note that no class of information is excluded from disclosure. A key feature of the Bill is the fact that protection will be afforded for a disclosure which is made on the basis of a reasonable belief, even if the information disclosed ultimately proves to be incorrect. If we are to encourage disclosures, workers must have the right to be wrong and not to be penalised simply for being wrong. Equally, of course, we should not be in the business of encouraging false reports and no protection is provided for such reports.

The definition of "worker" in the Bill covers as many persons interacting with the workplace as possible, and this includes members of An Garda Síochána, who, in common with every other worker in the State, may report instances of wrongdoing. I make special mention of An Garda Síochána because of the issues that have come into the public domain in recent times. It must of course be recognised that having regard to the nature of the matters with which they deal, members of An Garda Síochána operate under very specific sets of rules and procedures particular to them. Notwithstanding this, it remains my desire that members ought to have the capacity to report wrongdoing in the force, if not in exactly the same fashion, at least on an equivalent basis to every other worker in employment in the State.

With this in mind, section 19 of this Bill seeks to update the position on whistleblowing in An Garda Síochána. The provision amends the Garda Síochána Act 2005 so as to require the Minister for Justice and Equality to make new regulations for the making of protected disclosures, within the meaning of this legislation, by members of An Garda Síochána. The new regulations will be made by the Minister following consultation with the Garda Commissioner, the Ombudsman Commission and the inspectorate, and with the approval of the Government.

The new regulations must comply with the thrust of the proposal I am introducing today; that is to say, they must contain provisions for internal and external reporting and distinguish the disclosure rules relating to non-sensitive and sensitive information of the type envisaged in sections 17 and 18 of the Bill. Whereas the matters referred to in sections 17 and 18 - law enforcement, security, defence, international relations and security intelligence matters - are matters of specific concern to An Garda Síochána, it would seem unsustainable to suggest that each and every matter dealt with by An Garda Síochána falls into these particularly sensitive categories and that the regulations must therefore contain separate disclosure rules for matters which do not fall into such sensitive categories.

In addition to such distinctions, the regulations must, in line with the provisions of this Bill, not only provide procedures for the securing of redress following the threat of or actual penalisation but also must similarly provide for the securing of the anonymity of the discloser, an issue of the utmost importance if persons wishing to report wrongdoing are to be encouraged to come forward. I am satisfied that the provision contained in section 19 of this Bill, which has been agreed with the Department of Justice and Equality and the Government, will provide a regulation which not only addresses the particular needs of An Garda Síochána but which will also closely mirror the nature of the protections available to all other workers in the State and not disadvantage any member of An Garda Síochána in terms of the disclosure options available to any other worker.

The stepped disclosure regime in the Bill sets out the specific circumstances under which a disclosure may be made in order to attract the protections envisaged in the Bill.

Distinct disclosure channels are available, namely, internal disclosure to an employer, external disclosure to a prescribed person or, subject to certain stringent conditions, disclosure into the public domain where the circumstances are such that this would be warranted. On this basis, it is anticipated, and international experience would show, that the simplest form of disclosure - to an employer - will be availed of most frequently. The threshold for a report to an employer is set at a low level so that, most important, a worker can make such a report on a no-fault basis. There is a clear public interest in the making of such reports so that any real or possible wrongdoing can be addressed at the earliest possible stage.

The protections in the Bill fall into two broad categories, namely, protection for employees from penalisation by employers, and protection from detriment suffered as a consequence of the actions of others. In the case of penalisation by an employer falling short of dismissal, an employee will have access to the normal industrial relations machinery. In the case of a dismissal, the matter may be pursued under the Unfair Dismissals Act, regardless of length of service or other exemptions set out in that Act.

If it is in the public interest that workers be encouraged to disclose wrongdoing in the workplace – I am firmly of the view that it is – it would be perversely contrary to the public interest if a worker who has acted in the public interest were denied the right to financial relief simply because of delays in the adjudication system. In this regard, there is a provision in the Bill, arising as a consequence of an amendment suggested to me in the Seanad, for the making of an application by a worker to the Circuit Court for an order of interim relief pending the outcome of a full unfair dismissal hearing. This was discussed at some length in the other House and I was convinced by the arguments put that we could not wait for a long hearing if somebody was penalised. He or she should have redress to support and compensation immediately. It is worth noting that the usual ceiling on compensation levels set out in the Unfair Dismissals Act – two years’ remuneration – is increased to five years in the case of a dismissal in respect of the making of a protected disclosure.

Where a worker suffers detriment as a consequence of the actions of any person other than the person with whom he or she has an employment relationship, there will be capacity to take an action for damages in tort. All workers who make protected disclosures will be provided with a defence against any criminal proceedings in addition to wide immunity from civil liability and qualified privilege against an action for defamation should such an action arise.

The issue of a worker having to seek recourse to the protections contained in this Bill should represent the exception rather than the rule, and most disclosures - or, I hope, the vast majority - should be investigated and resolved at the level of the employer. With this in mind, the Labour Relations Commission, at my request, has already commenced work on the preparation of a statutory code of practice that will set out practically how a disclosure might be made and how an employer ought to handle such a disclosure upon its receipt. Both IBEC and ICTU are engaging with this process, which will continue apace. Both have agreed to disseminate the new code of practice to their members once the legislation is enacted.

In approving this Bill, Members of the Seanad acknowledged that the Protected Disclosures Bill represents a significant step forward in the framework of existing protections for workers. The Bill not only reflects best international practice but is a fair, balanced and proportionate approach that will ensure that Ireland's international reputation in preventing corruption is significantly enhanced.

I would like to turn to the specifics of the Bill and give a brief outline of its main provisions. Section 1 sets out the Short Title. Section 2 provides for a review of the legislation after a period of five years and the presentation of a report after such review to the Oireachtas. We had some debate about the timeframe in the other House. There was an understanding that we need to have many concrete examples on the books before carrying out a comprehensive review that would result in a report and debate. Section 3 sets out the interpretations and definitions used in the Bill. Section 4 is a standard provision providing for expenses incurred by the Minister.

With regard to Part 2, section 5 provides that a protected disclosure is a disclosure of "relevant information". Information is relevant information if in the reasonable belief of the worker it shows or tends to show one or more of the relevant wrongdoings. A broad range of relevant wrongdoings is set out. Section 6 provides for the first step in the stepped disclosures regime, namely, a disclosure to an employer or to another person where the matter falls within the area of responsibility of that person. A disclosure to an employer requires a reasonable belief on the part of the worker that it shows or tends to show one or more of the relevant wrongdoings.

Section 7 provides for the second step in the stepped disclosures regime - that is, an external disclosure to a person prescribed by the Minister. In the case of a disclosure under this section, a worker must have a reasonable belief in the "substantial truth" of the matters disclosed. This is a step up from the simpler reasonable belief requirement in the case of a disclosure to an employer. Section 8 provides that a disclosure by an employee of a public body may be made to the appropriate Minister with responsibility for that public body. Section 9 provides that a disclosure made in the course of obtaining legal advice from a barrister, solicitor or trade union official shall be protected. This is the norm.

Section 10 provides for the third step in the stepped disclosures regime - that is, an external disclosure to another, possibly to a member of the media. If the protections are to be attracted in regard to such a wider form of external disclosure, even stronger qualifying criteria must be met. In addition to the substantial truth requirement, the disclosure must not have been made for personal gain, and at least one of a number of other conditions must be met. These are that the worker must reasonably believe he would be victimised; that the evidence is likely to be concealed or destroyed; or that the wrongdoing is of an exceptionally serious nature.

With regard to Part 3, section 11 amends the Unfair Dismissals Act 1997 so that its protections will, on a day-one basis, be available to employees dismissed for having made a protected disclosure. The compensation payable is increased to five years from two years. This section also includes a provision for the making of an application to the Circuit Court for an interim relief order pending the determination of a claim for unfair dismissal. Section 12 prohibits an employer from penalising or threatening penalisation against an employee or from causing or permitting any other person to penalise or threaten penalisation against an employee for having made a protected disclosure. Section 13 provides a right of action if a third party causes detriment to either the worker or another person because a protected disclosure was made. The term "detriment" is widely defined.

Section 14 provides immunity against civil proceedings. It amends the Defamation Act 2009 with a view to ensuring that a statement made under a protected disclosure will have qualified privilege under that Act. Section 15 provides a defence to criminal prosecution for an offence related to disclosure of information. This section is necessary to overcome the many provisions relating to non­disclosure included in other legislation. Section 16 imposes a duty on persons handling protected disclosures to protect the identity of the discloser. The necessary and pragmatic exceptions to that duty are also set out. Obviously, it has to be caused to be investigated, for example. A person who suffers loss as a result of a failure to maintain confidentiality of identity may pursue an action for damages.

Let me turn to Part 4. Section 17 sets out a number of further conditions that must be satisfied in addition to those in section 10 for an external disclosure of information relating to law enforcement matters. An external disclosure of such information can be made only to a member of Dáil Éireann or Seanad Éireann or, if it contains taxpayer information, the Comptroller and Auditor General.

Section 18 sets out the conditions that apply in the case of an external disclosure of information that could adversely affect the State's security, defence or international relations. The only external person to whom a disclosure of such information may be made is the disclosures recipient, whose role and function are described in schedule 2 of the Bill.

Section 19 provides for the making of regulations covering protected disclosures by members of An Garda Síochána and for the securing of redress where a member has been penalised or threatened with penalisation for having made a protected disclosure. While these regulations will be specific to An Garda Síochána, the protections available to members of the force will, I am assured, reflect the broad thrust of those available to other workers.

Section 20 provides for an amendment to the Ombudsman (Defence Forces) Act of 2004, allowing the Defence Forces Ombudsman to receive and investigate protected disclosures from members of the Defence Forces. Section 21 requires every public body to establish and maintain internal procedures for dealing with protected disclosures while section 22 prohibits the contracting out of the protections provided under the Bill and is designed to prevent employers from preventing workers, by way of gagging clauses, from seeking the protections of this legislation.

Schedule 1 of the Bill sets out the detailed processes and procedures for the making of an application to the Circuit Court for an interim relief order. Schedule 2 sets out the redress provisions in respect of the penalisation - falling short of a dismissal - and reflects the existing standard provisions of the industrial relations dispute mechanisms. Schedule 3 establishes the office and functions of the disclosures recipient. Schedule 4 sets out the amendments to a total of 16 sectoral Acts and one statutory instrument containing whistleblowing-type provisions. They are all being encompassed under one, overarching provision as I promised.

I have dealt with the provisions of the Protected Disclosures Bill in summary form here but am more than happy to expand on any of its provisions during this debate and later at committee. Deputies will also have the opportunity during Committee Stage to examine the Bill in detail. Although it is a short Bill, certain elements are complex and difficult. The Opposition spokespersons have grappled with this when the heads of the Bill were discussed at committee level. I look forward to hearing the contributions of the Deputies opposite and hope the House will support the passage of this Bill and assist me in securing its early enactment so that we can provide the protections of this Bill to workers in every workplace in the State. I commend the Bill to the House.

I welcome the opportunity to speak on the Protected Disclosures Bill, which most people will generally refer to as the whistleblowers bill. We welcome the legislation, which is good and important. It is part of the changing society in which we live. Years ago many people would not have been happy with legislation such as this but now people are more open and up-front in their dealings with others. There is much more coverage of events today and people are quite happy to see greater levels of disclosure. That is why this legislation is so necessary.

My party will be supporting this Bill. As the Minister said, we have had a significant amount of discussion on it at committee level during the pre-legislative stage. Various people made contributions to those discussions. The Bill has already been before the Seanad, where there was quite an amount of discussion on it. Notwithstanding all of that, a number of amendments will need to be considered because the legislation can be improved and clarified in some respects. We will deal with those amendments as we discuss the legislation on Committee and Report Stages.

Given its topicality, I wish to deal with the recent public debate about the whistleblower from the Garda Síochána who appeared before the Committee of Public Accounts. It is very germane to the legislation being discussed now. I was conscious last week, as a member of the Committee of Public Accounts, of this issue and wondered how what was happening in practice would gel with the legislation before us now. I am pleased that the Minister specifically dealt with that issue. I might have a slightly different take on it but I am very pleased that the Minister devoted a page of his script to that issue, which is very important.

The whistleblower who appeared before the Committee of Public Accounts was dealing with the issue of a loss of income to the State, which is very much within the remit of the committee. I understand that a lot of people who commented and reported on it were, perhaps, too busy to check out the source of the issue to begin with. Some of them - members of the media and politicians - were happy to jump on a bandwagon, mainly within the confines of this building and argue that the committee was straying beyond its remit. However, once they got away from the bubble that surrounds Leinster House, they discovered that the public was absolutely delighted that our national Parliament was holding people to account, dealing with the issues, getting answers and making progress. I hope the Committee of Public Accounts will produce a report on its hearings in the very near future because I would not like that report to be delayed for too long. The public of Ireland felt that the Parliament was actually relevant. That did not happen through the Chamber but through the committee system and the people of Ireland were happy that it happened. Members of the committee have heard that from people they meet on a daily basis.

The Committee of Public Accounts has a very specific remit, namely to deal with matters contained in the reports of the Comptroller and Auditor General who wrote a specific chapter on the cancellation of fixed penalty notices as a result of driving incidents. The chapter itself, chapter 7, was quite short but on page 1 of his report, the Comptroller and Auditor General went out of his way to point out that a current serving member of the Garda Síochána called to his office last year and was interviewed for hours. On foot of that interview, the Comptroller and Auditor General, during the course of the audit, proceeded to investigate the points made by the whistleblower. The Comptroller and Auditor General did not reprint, reproduce or take what the whistleblower had said as fact but conducted his own inquiry, having been alerted to an issue and lo and behold, he found that everything the whistleblower had said stood up. In fact, in some cases, the situation was even more serious than the whistleblower had suggested and the Comptroller and Auditor General produced a chapter on that. At around the same time, the whistleblower wrote to the Joint Committee on Justice, Equality and Defence, at the suggestion of the then Minister for Justice and Equality. He also wrote a similar letter to the Committee of Public Accounts. In fact, the two letters were identical, save for an additional sentence in the letter to the Committee of Public Accounts referring to the fact that the issue referred specifically to a loss of income to the State and should be examined by the committee in that context. It is a standard procedure in this House that no two committees examine the same issue in parallel so the Joint Committee on Justice, Equality and Defence handed it over to the Committee of Public Accounts based on the fact that the issue was dealt with in the Comptroller and Auditor General's report and was related to a loss of income to the State. The whistleblower has suggested that the loss of income could amount to €5 million per annum. The Comptroller and Auditor General does not put a figure on it but that is the type of money we are talking about; he did not check every last one of the cancellations.

Up to 2012, there were 700 cases of notices being cancelled on the basis of "medical emergencies". When the Comptroller and Auditor General produced his report and the hullabaloo started, the Commissioner instructed his people not to cancel fixed penalty notices unless the reasons were verified and genuine and, lo and behold, in the last three months of last year no cancellations were issued. That proves that what was happening was wrong.

When the Commissioner got an independent report and not one by written by one of his own staff, it was proven to him externally that an issue existed and he did take action, which resulted in savings to the State. I suggest that the whistleblower has probably ensured the State is €1.5 million better off as a result of his whistleblowing. However, I do not think it was ever admitted by the Garda Síochána that the whistleblower had a valid case. In fact, the Commissioner was disparaging when he said - I paraphrase - that he found the process of what the whistleblower was doing disgusting. It was unfortunate of him to use such a phrase. He kept referring to “my force” and to one of his subordinates doing such a thing. It would lead one to conclude that there would be formal or informal consequences for the individual whistleblower. I hope the purpose of the legislation is to ensure that does not happen.

I hope the spirit of the legislation to which the Minister referred is carried through by the Garda Síochána. Sections 18 and 19 deal with the matter. The inspiration for it comes from the Garda Síochána, which always seems to be a special case. We accept that there must be protection for the State when matters could adversely affect the security of the State, the defence of the State or international relations of the State. I take issue with the latter point because "international relations" covers embassies, consulates and diplomatic missions. Such information could include reasons for taking a decision to close an embassy or to reopen one. The Government should not be given protection in the making of such political or administrative decisions just because they have an impact on relations with other states. In the normal course of a country’s business, unless it is a serious issue affecting security or defence, a shield should not be provided for normal functions of the Department of Foreign Affairs and Trade in terms of embassies. Members will understand to what I refer in that regard.

I welcome the provision in section 19 that the Minister will require an amendment to the Garda Síochána Act 2005 to take account of the new legislation. I propose that such an amendment be made by the Minister for Public Expenditure and Reform, Deputy Howlin. That is a compliment to the Minister. I would have more confidence in him in bringing forward the amendment than in the line Minister with responsibility for the Garda Síochána, the Minister for Justice and Equality, Deputy Shatter. The Bill cuts across Departments and the Minister, Deputy Howlin, would get agreement from the Government, including the line Minister.

The legislation will impact on dozens of other pieces of legislation. I will not list them all, but more than 40 items of legislation will be affected. I suggest that the Minister, Deputy Howlin, amend the legislation in consultation with the Minister for Justice and Equality and that it be done as part of the Bill and not as a separate Bill. That would give the public confidence that the Garda is subject to the legislation under discussion and not that there will be further legislation somewhere along the line when the Commissioner and the Minister have consulted with each other and they feel it is the right thing to do at the time. I urge the Minister, Deputy Howlin, to deal with the amendment because what is proposed in section 19 goes to the heart of what has happened in recent weeks and months.

There has been much debate about the Garda Síochána and whistleblowers in the Chamber in the past year, not just at the Committee of Public Accounts. Several Members have raised the issue. I would be happy if we could deal with the entire issue in this Bill rather than waiting for the Department of Justice and Equality to introduce separate legislation. The Bill outlines that the Minister for Justice and Equality, after consultation with the Garda Commissioner, the Garda Ombudsman Commission, the Garda Inspectorate and the Government, will make regulations on protected disclosure under the proposed legislation for the Department of Justice and Equality. The provision must be amended in order that representatives of the Garda Representative Association, the Association of Garda Sergeants and Inspectors, and other such bodies - for example, a consumer group to represent the public interest - can be consulted as part of the process. Once again, the Commissioner and the Minister are to make the decision and approve the regulations.

The Garda Ombudsman Commission and the Garda Inspectorate are also involved.

Yes, absolutely, but as the public would see it, they are all very much within the system. The Garda force involves 13,000 gardaí. I urge the Minister to allow them some representative voice in drawing up the regulations. I have suggested bodies with whom I have not consulted but I was immediately struck by the omission. I am sure the Department of Justice and Equality deliberately intended that they would not be included. The legislation would be better if serving gardaí were happy with what was put forward in the regulations. We are back to a hardy annual that has arisen with every item of legislation we have had to date. We would like to see a draft of the regulations published before the legislation is passed because we will be asked to pass it without sight of the regulations for the Garda Síochána. The issue arose before Christmas in terms of the public service sick pay scheme. We were asked to pass legislation which the Government forced through the House without the regulations, which were dependent on a Labour Court judgment. The Minister is following the same approach. He wants us to pass the legislation without sight of the regulations that will flow from the legislation. I do not think the Minister has anything to hide. He is being good on this issue. He should go the whole way and prepare a draft of the regulations and engage in a consultation process before we get to Committee Stage. It could be the case that the changes do not need to be made by regulation but could be done legislatively, but given the probable level of detail it might be done by regulation. If regulations are required they should be published and laid before the Oireachtas immediately on the passing of the Bill rather than waiting for an unspecified time period for that to happen. I agree with the spirit of what the Minister is trying to do but I do not think he has gone far enough.

As to the purpose of the Bill, everyone remembers the recent case of Louise Bayliss, who temporarily lost her job after she spoke out about the conditions for female psychiatric patients in St. Brendan’s Hospital, Grangegorman, Dublin. The case highlighted the need for legislation. People in the health service realised the injustice that was being done in that regard. The legislation should be seen in the context of important public information being made available not through the mechanism being provided but also through the freedom of information process. Recently, the Minister was forced to extend freedom of information provisions to Irish Water, having previously said he would not do so. Tomorrow I will introduce a Private Members’ Bill, which I hope the Minister will accept, to bring EirGrid under the remit of freedom of information legislation. I hope the Minister will allow it to proceed to be debated during one of the Friday sessions. I would ask anyone who would suggest that EirGrid should not come under the remit of freedom of information legislation what planet he or she is on. I hope the Bill will get unanimous support in the House tomorrow.

The Bill does not contain any provision for oversight by any State body, which is an omission in itself. Every public and private body will be subject to protected disclosures being made, yet no mechanism is provided to assess how the process is working after one year or two years, whether it is operating in a consistent manner or if reasonable practices are being established. There is a need for an existing body – not a new organisation, as the Government seems to want to introduce every time a new process is established – such as the Standards in Public Office Commission or the Ombudsman to have the responsibility of monitoring the implementation of the legislation to ensure it is being done in a consistent manner across all relevant bodies.

It is not just in the interests of the country’s good reputation that we have such legislation but also in the interests of private companies and businesses, because many things could happen in such organisations of which senior managers, shareholders and directors are unaware. It is maintained that one in four cases of fraud and corruption worldwide is exposed by whistleblowers.

In 2010, the Director of Public Prosecutions, James Hamilton, in a rare media appearance, suggested the lack of legal protection for whistleblowers meant fewer witnesses in court. In turn, fewer witnesses meant fewer convictions and fewer convictions meant more white-collar crimes. The Central Bank Governor, Patrick Honohan, made a similar appeal. The absence of a robust whistleblower charter has left courageous people who highlight wrongdoing exposed.

Recently, a journalist argued that whistleblowers should get a reward if they uncover wrongdoing in an organisation. I am concerned such a move could lead to a rash of such reporting if people felt there were a reward. It could also lead to a practice similar to that of planning applications in which people withdraw their objections if they receive a small payment. We need to delve into this matter more. It does happen in the corporate and finance sector in the US, where it has not caused problems. When the system is more embedded here, we should examine its introduction. There was the recent disclosure of large-scale rigging of the London inter-bank offered rate, LIBOR, by a whistleblower.

We are all familiar with the case of Eugene McErlean, an AIB internal auditor, who reported issues at the bank but was removed from his position there. This legislation provides for compensation of up to five times one’s annual salary in such cases. Some of the employers’ bodies have suggested that this could be too severe for small organisations and that we should instead go along with just twice the salary as contained in the unfair dismissal provisions. I do not go along with that because twice a salary is nothing to a large bank or financial institution. In fact, it would pay five times the whistleblower’s salary to get rid of the nuisance. In the cases of financial institutions and whistleblowing, the Financial Regulator needs to conduct an investigation and, if it is found to have committed a wrongdoing, fine the institution too.

The biggest whistleblower case is that of Edward Snowden, who has had to criss-cross the globe to avoid American arrest. Many countries are afraid to take him in because there might be consequences from the USA. From the Snowden affair, we learned that the USA had bugged the phones of many Heads of State. I do not know if the US authorities thought the Irish Head of State was important enough to waste their time bugging his phone, but I have no doubt it was recorded sometime.

Legislation on whistleblowing may apply to many companies already operating in Ireland. For example, all companies listed on US stock exchanges are subject to US law stipulating that internal procedures be in place to facilitate protected disclosures of a financial nature. The intention of these laws is to protect shareholders rather than the public interest, however.

There was an extensive debate on this legislation at the committee on 18 April 2012. At it, we all agreed that whistleblowers need to be protected. This legislation is intended to provide immunity against civil liability for the whistleblower. Importantly, there is a stepped disclosure regime through which a worker can make a protected disclosure. This legislation will highlight the responsibility of employers to put mechanisms in place to investigate whistleblowing complaints and develop an organisational culture which supports whistleblowing. That is in the interests of every organisation. There needs to be a system in place that will encourage the reporting of wrongdoing down the line to the rarefied atmosphere of headquarter offices.

Some of the employers’ groups are concerned about the definition of a worker because it covers subcontractors, direct contractors and people on work experience. This is a broad definition. Practically everyone employed in any of the large State building projects will be a subcontractor, for example. I support the Minister’s approach on including subcontractors in the legislation. Some large companies may be uncomfortable with this, but tough on them because there is a larger interest at stake. It is in their interests that they know what is happening on their sites.

The issue of wrongdoing is very well defined in the Bill. The whistleblower does not have to prove the allegation but must have a reasonable belief that it is substantially true. Complaints cannot be vexatious or avenging. One of the more interesting discussions at the committee concerned whether the option of good faith has to be included.

I took it out because of the UK experience in that regard.

I support the Minister on that choice. Section 5(7) states, “The motivation for making a disclosure is irrelevant to whether or not it is a protected disclosure.” That is an important decision. Just because someone has a gripe does not mean what they are saying is not true.

Some of the best information can come from such a source.

The Revenue Commissioners will always say a disgruntled ex-partner or ex-spouse is often their main source of information. Just because someone might have a beef with the person they are reporting does not mean what they are reporting is not true. It is better that the legislation does not rule a disclosure out of order because a whistleblower had a gripe. It will quickly emerge if a disclosure is vexatious with no substance. It is the validity of the complaint that matters, not who said what to whom and when. Let the facts speak for themselves. There are plenty of ruses a company can use to put a whistleblower down, such as suggesting that he or she take time off or get counselling. The legislation needs to ensure these are not allowed to prevent people from making legitimate complaints.

Section 17(2)(b) states, “if it is taxpayer information, it is made in accordance with section 10 to the Comptroller and Auditor General.” It is ironic that this is what the recent Garda whistleblower did. The Minister was correct all along on this provision.

It was in the draft from the outset.

I commend the Minister on doing this. That individual had great foresight to know what the Minister was planning and to do it in advance of what the Minister was planning. Perhaps he took note of Members' discussions last year on whistleblowers. It is probable that if he was interested in the subject, he watched the debate and saw this issue. He did precisely what it says on the tin in this legislation and that is important.

The next paragraph deals with how, in certain cases, admissions can be made to Members of the Houses of Oireachtas, which is fine. The Minister will appreciate there are other cases, which probably relate to matters concerning the administration of law courts, prisons and other functions, that do not come under the normal procedure. Schedule 3 of the Bill provides, "The Taoiseach shall appoint as the Disclosures Recipient a person who is a judge or retired judge of the High Court". That is fine and I am happy with that. Schedule 3 concludes by providing that, "No later than 31 March in each year the Disclosures Recipient shall submit to the Taoiseach a report on his or her activities in the immediately preceding year". While this also is fine, I believe this report should be published. It should be anonymised or whatever phrase people wish to use. I would go as far as to state it is unfair to the Taoiseach if such things are going on, it all lands on his or her desk and he or she is unable to tell anyone about it. It would not be good for the Taoiseach's karma to keep it all to himself or herself. Consequently, there is a case for publication with appropriate protections for those involved, to prevent them from being in any way identifiable. The legislation should be amended for this report to be published.

The point has been well covered that disclosure under this legislation can be made by a worker who must reasonably believe that his or her disclosures tend to show more than one wrongdoing. In general, it will not be a single-incident issue. The information must come to the attention of the worker in connection with his or her employment and the worker must decide to whom to make the disclosure. Members have mentioned a variety of channels, in that it can go to the Minister if it is a public body or to an employer and the procedures for the Garda and for the courts in respect of what will be presented to the Taoiseach also have been covered. As people will be interested in the practicalities of what this means, the Oireachtas Library and Research Service has helpfully provided Members with a few examples. It will only take me a few seconds to outline who will and will not be covered. One example provided is a scenario in which Siobhan worked in the marketing department of a supermarket chain. She suspected that misrepresented promotions amounted to overcharging and reported her case. The outcome in this case would be that Siobhan would enjoy the same protection as any worker reporting wrongdoing under the Bill and would be covered. Another example concerns a garda who suspected wrongdoing among colleagues interfering with evidence. As for the outcome in this case:

the provisions of the Bill will apply to members of An Garda Síochána. The Garda Síochána Act will be amended to provide for redress provisions specific to the force.

The Minister should make the amendment pertaining to the Garda Síochána in this Bill and should not leave it to another Minister. I trust the Minister, Deputy Howlin, more in this regard. I will conclude with a final example of Brian, who is a care worker who has had a gripe with one of his co-workers and who made a malicious complaint. He clearly is not covered and rightly not. These are some specific examples.

I support the Minister in bringing forward the Bill. Fianna Fáil will table amendments on Committee Stage and I look forward to discussing them in detail then.

At the outset, I will read some of the Minister's comments and sentiments that I share back to him. I also:

see the introduction of such protections as a catalyst for a change which views openness and transparency as an asset rather than a liability and as a change towards a culture that values the contribution of employees and citizens and recognises those contributions as positive, effective tools in working towards the achievement of the common good rather than as something to be limited or destroyed. Good governance clearly demands that persons in positions of power and management, be open, responsible and accountable for their actions.

I say "Bravo" to that.

I welcome this legislation and acknowledge the Minister's personal efforts to ensure the commitment to whistleblower legislation was included in the programme for Government and now is being delivered. However, the irony of the Minister presenting the Protected Disclosures Bill will not be lost on the many people who have followed recent events and in particular those pertaining to the Committee of Public Accounts. It is the Minister's own commitment to this legislation and its spirit that makes public commentary by Ministers, including the Minister himself, in advance of the Garda whistleblower coming before the Committee of Public Accounts last week so unsatisfactory. I believe Ministers cynically used the media to undermine the motivation of the Opposition members of that committee and in turn the committee itself and perhaps even the credibility of the whistleblower himself. However, the Government had form in this regard. The Minister, Deputy Howlin, will recall that on the occasion of the publication of the O'Mahony report, which was an internal Garda investigation into the penalty points issue, the Minister for Justice and Equality, Deputy Shatter, rubbished whistleblowers within An Garda Síochána, and the serious charges they had made. I refer to the serious issues they had raised with An Garda Síochána confidential recipient, in respect of which they had been in contact with the Departments of the Taoiseach and Transport, Tourism and Sport, the serious allegations that caused them to make contact with the Road Safety Authority and which brought them to the Office of the Comptroller and Auditor General. However, the Minister, Deputy Shatter, chose to abuse his position as Minister for Justice and Equality and to make derogatory remarks in respect of these two individuals. One cannot have it both ways. Either the Government, in its totality, genuinely is committed to a culture of openness and transparency and values the essential role of whistleblowers in good governance and accountability or it does not. The problem, as this debate gets under way, is that the Government has sent out a clear message that whistleblowers, certainly in respect of An Garda Síochána, were to shut up and put up. This position is wildly at variance with the Minister's words this evening, which I read back to him. This should give everyone cause for reflection.

It is my view that the Committee of Public Accounts, of which I am a member, has been and always is vigilant in its public commentary on the allegations of the Garda whistleblowers. This is a matter of significant public interest and one should not forget that under the existing legislation, gardaí are permitted to bring such matters to the attention of Members of the Oireachtas. As the Minister is aware, it is the responsibility of the Committee of Public Accounts to examine reports by the Comptroller and Auditor General and this it did. Moreover, as part of its routine work, committee members can and routinely do seek oral and written evidence to support their investigations. I of course accept the penalty points allegations could have been referred to the Garda Síochána Ombudsman Commission some time ago when it became clear the internal mechanisms of An Garda Síochána had not dealt adequately with the matter. More than a year had passed since my colleague, Deputy Mac Lochlainn, first called for an independent inquiry into the matter and for a referral to the Garda Síochána Ombudsman Commission, as it was clear at that stage that the totality of issues could not be resolved internally. In this respect, the Minister for Justice and Equality and the Cabinet, of which the Minister is a member, failed miserably to show the necessary leadership in a difficult situation. Instead, the problems, allegations and worries rumbled on in the public domain until at last, it ended up at the door of the Committee of Public Accounts.

The comments of the Minister and his colleagues were unwarranted, unfair and not based in fact, and were deliberately aimed at undermining the aims of the Committee of Public Accounts.

Would Deputy McDonald quote my comments?

In doing that, the Minister, with his ministerial colleagues, has done a grave disservice to the work we do as Members of the Oireachtas and as members of that committee.

Can Deputy McDonald quote the comments? The Deputy is making a charge. Can she substantiate that charge?

A grave disservice was equally done to the notion of whistleblowers, protected disclosures and protecting-----

On a point of order, the Deputy is making a charge against me. Could she substantiate that charge?

I am speaking. I have the floor.

Does the Deputy accept the point of order?

No. I have the floor. The Minister will have his opportunity to respond.

It is for the Leas-Cheann Comhairle to accept the point of order, not the Deputy.

I will take the point of order.

The Deputy is making a charge against me. I would like her to quote the comments I have made that made her draw her conclusions, please.

The comments, as the Minister is very well aware, relate to the appearance of the whistleblower before the Committee of Public Accounts. Those comments, along with others of his colleagues, were a calculated and failed attempt to frustrate the work of the Committee of Public Accounts.

The Deputy cannot quote them. She is making it up, again.

A grave disservice has been done to the notion of whistleblowers, protected disclosures and the kinds of protections that must exist for persons who step forward, whether they are members of the Garda Síochána, any other agency of the State or any private entity. It is a deep irony that the Minister is bringing forward this very welcome legislation this evening while last week he was happy to join in the chorus-----

The Deputy should read out the quote.

-----suggesting that the Committee of Public Accounts had acted improperly in a bid to prevent this particular whistleblower from presenting his case to us.

It is entirely false.

The other irony is that in the course of this controversy, the only names that have been bandied about, and with wild abandon, have been the names of the two Garda whistleblowers. They have had comments made about them during committee proceedings by, among others, the Garda Commissioner. My colleague Deputy Sean Fleming referred to some of those remarks. Yet we had to hear from the whistleblower in private session, not least because of an utterly contrived political atmosphere of which the Minister, Deputy Howlin, was part and parcel.

That is a shocking and scandalous untruth.

It was indeed shocking and scandalous.

On the legislation.

Let me turn to the legislation.

She is not interested in the legislation. She is interested only in muck-raking, as is her wont.

It is not my wont. I am sorry if a statement of the facts offends the Minister's delicate sensibilities, but there you go.

I have welcomed the introduction of this legislation and particularly commend the work of officials in the Department of Public Expenditure and Reform. The European Commission anti-corruption report on resourcing and the regulatory impact assessment of the Bill concluded that the legislation was a fair, balanced and proportionate approach which will ensure that Ireland's international reputation in preventing corruption is significantly enhanced. The EU has also recognised the State's progress; however, the Commission has sounded a note of warning. When dealing specifically with Ireland in its European anti-corruption report published this week the Commission stated that more work could be done to improve the capacity to prosecute and punish corruption cases in a timely manner.

While a number of issues affect the potential efficiency of anti-corruption agencies, there is no doubt that adequate and appropriate resourcing of such agencies is key. I have raised this matter with the Minister before. Research has shown that even where significant cases of illegality have been identified - for example, the Ansbacher tax scandal - prosecutions can be very difficult. The Commission's report identifies access to databases and intelligence and the provision of necessary resources and skills as factors affecting the success of anti-corruption agencies across Europe. Ireland is no different in this regard. Transparency International's 2012 national integrity study notes that "full analysis of trends is impeded by an absence of clear and consolidated statistics on investigations or prosecutions for corruption-related offences by law-enforcement agencies and the various regulatory bodies."

The legislation provides for the establishment of a disclosures recipient. The RIA states that it is hoped that the volume of reports to the disclosures recipient will be minimised by virtue of the structure of the legislation, which is designed to encourage reporting to an employer in the first instance. I support that staged approach. While the expenses associated with the appointment of a disclosures recipient are not anticipated to give rise to significant costs to the Exchequer, I would like to sound a note of caution. There is in the public mind an understandable reluctance to establish new public bodies, or what might be termed quangos, and that is fair enough. However, we need to be mindful of the danger of automatically regarding every new agency, regulatory body or service provider as surplus to requirements. That would be wrong, and I take a different view. While we need to be cautious about waste in the system, we need to resource agencies properly, particularly those that have oversight and accountability roles. In the long run, a fully resourced disclosures recipient office will more than pay for itself.

On interim relief, employees, be they public or private sector workers, must be protected when they report wrongdoing. Whistleblowers are regularly portrayed by those they make complaints against as difficult or contrarian. This is true the world over. Their motivation is questioned and retaliation is often a first response by those who employ them. Those who expose wrongdoing need legal protections and it is very welcome that the State recognises this. My colleague Senator Kathryn Reilly raised the need for an interim relief provision in the legislation and I thank the Minister for engaging constructively on this matter. Concern remains in the event that an interim relief order is in place and an employer who is found to have acted correctly seeks to recover the moneys paid before the conclusion of the case. That matter is still outstanding and I look forward to discussing it with the Minister on Committee Stage.

Section 19 of the Bill amends the Garda Síochána Act 2005 by requiring the Minister for Justice and Equality to make regulations providing procedures for protected disclosures by members of the Garda Síochána. In light of recent events and controversies, it would be desirable and helpful for us to see those regulations. The Minister might clarify the status of that process and precisely the procedure for these regulations to take effect.

Transparency International Ireland, which has made an exceptionally positive contribution to this legislation, has suggested a number of additional amendments to the Bill which merit consideration by the Minister. It suggested that volunteers should be provided for in the Bill. We cannot encourage citizens to give up their time to support their communities and then not protect them if they expose wrongdoing in an organisation. It has also been proposed that volunteers be afforded immunity against civil proceedings, including qualified privilege against defamation proceedings.

There is a concern the current wording of the definitions may exclude external auditors, accountants and professional advisers. Those supplying contracts for services should be free to make a protected disclosure where there is a failure on behalf of their client to comply with legal or codified stands. Fear of a civil action should not deter such persons from making a protected disclosure.

Section 5 does not adequately address breaches of "soft law" mechanisms, such as professional codes or ethical guidelines. Limiting compliance to "any legal obligation" can exclude mismanagement of conflicts of interest by providers of professional services, breaches of client confidentiality, mismanagement of client funds, abuse and misuse of charitable donations. Transparency International also points out that while public sector codes, such as the code of conduct for officeholders, code of conduct for members of the Legislature, code of practice for the governance of State bodies, and the codes of conduct for employees of local authorities and councillors have statutory effect, a breach of any of these may not automatically amount to a breach of legal duty.

Section 16 appears to place the onus on the persons making a disclosure to make it known that they do not want their identity disclosed. In other words, they are responsible for confidentiality. This introduces a particular risk to workers who have accidentally made a protected disclosure by seeking advice on a matter related to wrongdoing or where that person's identity is released by a third party, other than an employer, without their knowledge. Transparency International advises that the onus should always be on the person to whom the protected disclosure was made to treat as confidential the identity of the person making a disclosure.

Attention has also been drawn to an amendment submitted by Senators Zappone, van Turnhout, Mac Conghaíl and O'Brien, which seeks to assess the effectiveness of the legislation annually. This amendment was already raised with the Minister on Report Stage in the Seanad, so I will not rehearse the arguments here. However, I intend to pursue the matter on Committee Stage.

I would like to conclude by commending the work of Transparency International Ireland, which continues to operate the Speak Up helpline for whistleblowers. In the absence of this overarching legislation, this organisation has championed the rights and protection of those who speak up against corruption or wrongdoing. Finally, I am sure the Minister would join with me in commending all of those men and women, from different walks of life, who at different times and junctures have stepped forward and taken a huge risk. They have been quite courageous in speaking out and speaking up about wrongdoing.

I welcome the opportunity to contribute to this debate on the Protected Disclosures Bill, which is an important and welcome piece of legislation.

The Bill sets out to provide a general protection from reprisal to workers who report suspected wrongdoing within their organisations. It applies to both the public and private sectors and its protections are designed to encourage potential whistleblowers to come forward and to prompt higher standards in business, employment and society. The ultimate intention of the legislation is to effect a cultural change right across society, to ensure things are done properly in the future. The Bill applies to those who make a disclosure about wrongdoing in the workplace and provides protections for them if they are penalised by their employer as a result.

In its guidelines on international principles for whistleblower legislation, Transparency International speaks about the right of citizens to report wrongdoing as a natural extension of the right to freedom of expression and as linked to the principles of transparency and integrity. All people have the inherent right to protect the well-being of other citizens and society at large, and in some cases have the duty to report wrongdoing. Transparency International states that the absence of effective protection can, therefore, pose a dilemma for whistleblowers. They are often expected to report corruption and other crimes, but doing so can expose them to retaliation.

Too often we have seen - as we did recently in this State - how whistleblowers are treated. We have a history and culture of viewing whistleblowers as informers or as people who should be looked down on. This legislation needs to change this, but we as a society also need to change to ensure people who expose wrongdoing in the public interest are respected and treated properly and not ostracised or penalised for putting forward remedies in the public interest or exposing bad or illegal practices and criminal wrongdoing in business. It is important this cultural change happens as it will bring more integrity. Perhaps we will even get to a stage in the future where this legislation will not be required. That may be a utopian view, but we should aspire to a situation where there will be no need for this legislation because of a significant culture change where businesses and public bodies do business in the right way.

As has been outlined in the House previously, the current legislation in this area is partial and inconsistent and provides various levels of protection for the employment and industry sectors. Approximately 25 pieces of legislation cover various forms of whistleblowing and different sectoral interests. It is believed that the lack of general protection has stopped potential whistleblowers from coming forward. I believe this is true. Workers who come across wrongdoing in the workplace feel very nervous about exposing it or bringing it to the public domain because of retaliation and the risk involved to themselves. The Bill outlines that a disclosure should be made to an employer in the first instance, but there are other avenues within the legislation workers can take, depending on the circumstances of the case. These include making disclosures to Members of the Dáil. The Bill provides for six channels of disclosure and different tests will apply to decide which disclosure is a protected disclosure and which channel should be used.

Having examined the legislation and read the debates that took place in the Seanad on it, the Bill seems to be very cumbersome. There may be good reasons for this, but there were calls in the Seanad debate for a code of practice and there was mention of the possible publication of such a code. A code of practice is vital and should be published in line with the enactment of the Bill. This code should be made available to all workers and we should have an extensive campaign to make workers aware of it.

Yes. Obviously the code will place scrutiny on employers also.

I have a concern with regard to whether a disclosure is made in the wrong place initially. For example, if a worker comes to a Member of this House to make a disclosure that should have been more appropriately made to the employer, what protection will be available for that worker? Will the onus be on us, as Members of the House, to direct workers to the right avenue? Some people may not feel that even with this legislation and its protections, this is something they can do. How will the legislation work in practice in this situation and in the future?

The Bill provides that deliberate false reporting will not be covered under protected disclosure legislation. This makes sense. However, unfortunately, this will be the first defence employers will use and workers who make a disclosure will come under attack initially. They will probably also be subject to abuse from co-workers, possibly because they do not understand the implications of what has been disclosed.

Protection is provided to those making a protected disclosure under this legislation under the Unfair Dismissals Act. A number of other provisions are also made, such as immunity from civil liability, not making protected disclosure a criminal offence and protection of the identity of the whistleblower. The difficulty with that however is that whistleblowers must signal they want their identity protected when making a disclosure. There should probably be a presumption this is the case.

Debate adjourned.