Amendment No. 1 in the names of the Minister for Public Expenditure and Reform and Deputy Sean Fleming arises out of committee proceedings.
Protected Disclosures Bill 2013 [Seanad]: Report Stage
I move amendment No. 1:
In page 5, line 19, to delete "not later than the end of the period of 5 years" and substitute "not later than the end of the period of 3 years".
Deputy Sean Fleming will recall that we engaged in a long debate on Committee Stage on foot of an amendment he tabled to section 2 in respect of what might constitute an appropriate timeframe within which a review of the legislation should be carried out. That was a very useful debate, particularly as we want to ensure there will be sufficient activity under the legislation to make a meaningful review worthwhile. I made a commitment to reflect further on the matter and, having done so, I submitted my own amendment. The Deputy will recognise that my amendment replicates the one he tabled on Committee Stage. It proposes that the legislation be reviewed within three years of its enactment and that such review be completed within a 12-month period. The review will provide the opportunity - consistent with Deputy Sean Fleming's amendment - to assess whether the legislation is working as intended by the Oireachtas. It will also allow to be proposed any reforms which might, in light of its actual operation, strengthen the legislation.
As I indicated on Committee Stage if there are any major issues emerging which demonstrate that the legislation is not meeting its objective in advance of the formal statutory reform it would of course be my intention to seek to address the matter through legislative change, as necessary. We are starting on a positive note and I have listened to the clear case the Deputy has made.
I am happy to support this. As the Minister noted, we discussed it on Committee Stage. I put in an amendment on Report Stage and the Minister has an identical amendment. That is a great start. There is no more to be said, save to say that we look forward to the amendment being agreed to.
Amendments Nos. 2 to 4, inclusive, 6 and 7 form a composite proposal and amendment No. 5 is an alternative to amendment No. 4. Therefore, amendments Nos. 2 to 7, inclusive, may be discussed together.
I move amendment No. 2:
In page 6, to delete line 5 and substitute the following:
“ “employee” has the meaning given by section 1 of the Unfair Dismissals Act 1977 and includes an individual who is deemed to be an employee by virtue of subsection (2)(a);”.
The amendments in this group could be characterised as essentially technical in nature. However, they are important in providing clarity of the definitions of "employee" and "employer" and that part of the definition of "worker" relating to contractors. We had a long discussion during Committee Stage as both Deputies will recall. I will discuss each amendment in turn.
The purpose of amendment No. 2 is to ensure that members of An Garda Síochána, including members of An Garda Síochána Reserve, and civil servants who do not work under formal contracts of employment will have access to the full range of protections available to employees under this legislation, including recourse to the Employment Appeals Tribunal, the Rights Commissioner Service and the Labour Court, in circumstances where members of An Garda Síochána or civil servants believe that they are being penalised for having made a protected disclosure. We are taking them out of the normal system that operates in such cases and putting them into the regulatory environment that applies to all workers and they will have access to the full panoply of supports, including the Labour Court, the Employment Appeals Tribunal and so on. The proposed section 2(a) in amendment No. 7 explicitly deems that members of An Garda Síochána and civil servants are to be employees for the purposes of this Act.
The purpose of amendment No. 3 is to simplify and clarify the definition of "employer" and "worker" to minimise the risk of any legal uncertainty of the relationship that exists between them in any particular case. The proposal is to replace the existing definition of the term "employer" with a new definition that maintains the feature of the original definition but which clearly aligns definition of "employer" with the definition of "worker". The objective is to create a direct one-to-one relationship between each category of employer, set out in the definition of that term, with each category of worker, set out in the definition of "worker". Deputies will, therefore, see that the proposal includes four clear and distinct categories of employer, each of which can be mapped against the four distinct categories of worker in the definition of that term. The benefit of this change is that it simplifies the legal identification of the employer for the making of a protected disclosure by the worker or for the worker to secure redress for having been penalised for making any such disclosure. Deputies will recall that we debated this on Committee Stage and that the way it was structured is somewhat convoluted. I know Deputy McDonald, in particular, sought greater clarity. I believe this is a clearer approach and it helps to clarify for the employer the category of workers for whom he or she may receive a protected disclosure or is required to safeguard from penalisation for having made such a disclosure.
Amendment No. 4 focuses on the definition of "worker". There are two aspects to amendment No. 4. The first is a simplification of the language used in the definition of "worker", in particular that part of the definition relating to contractors. This follows a point strongly made by Deputy McDonald on Committee Stage. The second is the extension of the description of contractors in the definition to ensure that all types of contractors fall within the definition of "worker". This had been the objective but I wanted to make it clear. The reference in amendment No. 4 to an "employee" is a straightforward simplification of the current definition. The revised definition of "worker" in so far as it relates to a contractor in amendment No. 4 reflects the extensive debate on Committee Stage.
Deputy McDonald submitted a particular amendment on this issue on Committee Stage which is resubmitted and is part of the group we are now discussing. I note that the relevant amendment continues to reflect her concerns in respect of the definition of "worker" as it applies to contractors and proposes the removal of a specific exclusion currently included in the Bill in cases where a contractor carries out work for a client. My policy objective is to include in this legislation, as I have said repeatedly, the widest definition of "worker" that is legally feasible and in this regard I am keen to ensure that contractors come fully within the ambit of the legislation. Following our discussion on Committee Stage I undertook to bring my amendments to Report Stage. That is what I have done and that is what we are now discussing. I hope and I believe they meet Deputy McDonald's concerns as reflected in her amendment, which would also provide clarity with regard to the coverage of contractors. My corresponding amendment replaces what we agreed to be a complex set of definitions with potentially confusing language relating to contractors set out in the original draft of the Bill. I hope the case made by the Deputy is fully made by the amendment that I have submitted and I hope the Deputies opposite will agree that the pursuit of the other amendment in Deputy McDonald's name is unnecessary. I wish to make clear to the House that the overall effect of my amendment legally will be to ensure that all contractors will be included under the ambit of the legislation and, as such, will be in a position to seek redress against detriment experienced for having made a protected disclosure.
The purpose of amendment No. 6 is to confirm that the definition of "worker" includes member of the Permanent Defence Force.
Amendment No. 7 is supplementary to amendment No. 2. It confirms the employment status of members of An Garda Síochána and includes members of An Garda Síochána Reserve and civil servants and deems them to be employees for the purposes of this legislation. It also confirms the employment status of members of the Defence Forces as workers since redress for the Permanent Defence Force will be provided, as we discussed, in accordance with the rules and regulations specifically applicable to the Defence Forces as set out in the Defence Acts, relevant regulations and section 20.
This sounds a little convoluted but, in essence, I am saying that I have listened to the clear message on Committee Stage in respect of the definition and spelling out of who is encompassed as a worker and who is encompassed as an employer. I believe this is a clear set of definitions and that it meets the points made effectively by Deputies opposite on Committee Stage.
As the Minister indicated, my amendment No. 5 was grouped with the Minister's amendments. I am pleased to withdraw my amendment in favour of the Minister's amendment No. 4, which addresses the concerns raised and debated on Committee Stage. I thank the Minister for clarifying the matter and putting it to rest within the legislation.
I move amendment No. 3:
In page 6, to delete lines 6 to 19 and substitute the following:
“ “employer”, in relation to a worker, means, subject to subsection (2)(c)—
(a) in the case of an individual who is a worker by virtue of paragraph (a) of the definition of that term, the person with whom the worker entered into, or for whom the worker works or worked under, the contract of employment,
(b) in the case of an individual who is a worker by virtue of paragraph (b) of the
definition of that term, the person with whom the worker entered into, or works or worked under, the contract,
(c) in the case of an individual who is a worker by virtue of paragraph (c) of the definition of that term—
(i) the person for whom the worker works or worked, or
(ii) the person by whom the individual is or was introduced or supplied to do the work,
(d) in the case of an individual who is a worker by virtue of paragraph (d) of the definition of that term, the person who provides or provided the work experience or training;”.
I move amendment No. 4:
In page 7, to delete lines 21 to 30 and substitute the following:
“(a) is an employee,
(b) entered into or works or worked under any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertook to do or perform (whether personally or otherwise) any work or services for another party to the contract for the purposes of that party’s business,”.
I move amendment No. 6:
In page 8, line 3, after “and” to insert “includes an individual who is deemed to be a worker by virtue of subsection (2)(b) and”.
I move amendment No. 7:
In page 8, to delete lines 5 to 17 and substitute the following:
“(2) For the purposes of this Act—
(a) an individual who is or was—
(i) a member of an Garda Síochána, or
(ii) a civil servant (within the meaning of the Civil Service Regulation Act 1956),
is deemed to be an employee,
(b) an individual who is or was a member of the Permanent Defence Force (within the meaning of the Defence Act 1954) or the Reserve Defence Force (within the meaning of that Act) is deemed to be a worker;
(i) in relation to a member of the Garda Síochána (other than the Commissioner of the Garda Síochána), means the Commissioner of the Garda Síochána;
(ii) in relation to a civil servant (within the meaning aforesaid), has the meaning given by section 2A(2) of the Unfair Dismissals Act 1977;
(iii) in relation to a member of the Permanent Defence Force or the Reserve Defence Force (both within the meaning aforesaid), means the Minister for Defence.”.
Amendments Nos. 8, 9, 11 to 13, inclusive, 15, 16, 22, 24 to 27, inclusive, and 32 to 39, inclusive, are related technical amendments and will be discussed together.
I move amendment No. 8:
In page 8, line 25, after "information" to insert "(whether before or after the date of the passing of this Act)".
We are dealing a great range of amendments. The purpose of amendment No. 8 is to provide clarity to the effect that a disclosure made prior to the enactment of this legislation can qualify as a protected disclosure provided that the penalisation, detriment or consequences for making it are subsequent to the enactment of the legislation. On the assumption that Deputies accept this amendment, the provision contained in section 5(9) of the Bill is, on a technical basis, no longer necessary, given the fact that the retrospective intention of the legislation is confirmed and, I hope, made clearer by the amendment. Amendment No. 11 proposes the deletion, therefore, of section 5(9).
A number of further technical amendments arise as a consequence of the acceptance of amendment No. 8. Clearly and logically, it could not be possible for a person to have made a disclosure precisely in accordance with the provisions of the legislation prior to the legislation. I hope Deputies are following me. If the requirement is that, to have a valid disclosure, it must be made in accordance with the legislation even though we want disclosures made prior to the legislation to be in accordance, we need to drop this provision. Therefore, it is necessary to provide the third parties involved in determining whether a protected disclosure was made with the appropriate legal basis to make a determination as to whether a disclosure made before the passing of the legislation was done in a manner specified in the section concerned, which sets out the conditions that need to be met for a disclosure to qualify. This being the case, and I hope it is clear, the term "in accordance with" should be replaced by "in a manner specified in". The remaining amendments encompassed in this group provide this change where it arises in the legislation. They are repetitive, technical changes.
I move amendment No. 9:
In page 8, lines 25 and 26, to delete "in accordance with" and substitute "in the manner specified in".
I move amendment No. 10:
In page 9, between lines 2 and 3, to insert the following:
"(c) that a person has failed, is failing or is likely to fail to comply with a nonstatutory obligation, such as that arising from a professional code or workplace code of practice or recognised international standard, where such obligation is intended to uphold human rights, or other rights of citizens,".
The Minister will recall that we had some discussion around this matter on Committee Stage. The objective of my amendment then and now is to ensure that breaches of what might be termed soft law or professional codes of conduct that do not have a statutory footing are covered by this legislation. At the time, the Minister not unreasonably raised the fact that, as an unintended consequence, codes of conduct could be a containment mechanism and have the reverse of the impact I had intended in my amendment, so I have recast it. The qualification is "where such obligation is intended to uphold human rights, or other rights of citizens". This affords clarity to the effect that soft law, standards and codes of practice are covered by this legislation and adds the rider that those obligations are intended for the upholding of citizens' human or other rights. This addresses the fair concern that the Minister raised on Committee Stage.
It is important that soft law obligations be covered explicitly by the legislation. I do not know whether the Minister is minded to accept my amendment, but he might clarify the reference in section 5(4) to the general corpus of law, be it within or without this jurisdiction. If the Minister will bear with me, I will rummage and find the precise-----
It is on page 9. Section 5(4) of Part 2 reads: "For the purposes of subsection (3) it is immaterial whether a relevant wrongdoing occurred, occurs or would occur in the State or elsewhere and whether the law applying to it is that of the State or that of any other country or territory." This does not cover exactly what I am seeking to remedy, but the Minister might comment on it. On Committee Stage, he took on board the spirit of what I was trying to achieve through the amendment. I heard his reservation at that point and recast the amendment to try to cater for it. I look forward to his response.
We had a good debate on this matter on Committee Stage, when I set out the legal assessment that I had been given by the Attorney General. I also indicated that I would consider how the points made by Deputy McDonald might be addressed in light of that legal advice. The Office of the Attorney General has advised that inclusion of breaches of non-statutory codes of practice or professional codes as wrong-doing under this legislation would not be legally consistent with the purposes of the Bill. I fully understand the basis of the amendment and its refinement, but the legal analysis that I am bound to accept is that, where professional bodies or representative organisations apply particular codes or standards to their members that do not have the force of law, it is not possible to apply sanctions under legislation on a person who is alleged to have been penalised for reporting a breach in such codes or standards.
The basic premise of this Bill is that the report relates to some unlawful action or breach of a formal legal obligation. In such circumstances and given the imperative to uphold the law, where an employee reports his or her concerns regarding a potential breach of the law in accordance with this legislation, there is a compelling public interest to safeguard such an employee from any victimisation. The legal assessment is that the protected disclosures legislation could not sustain the imposition of high levels of compensation, which are implicit in this Bill, of up to five years' compensation in respect of an issue that did not constitute a breach of law. On the basis of the Attorney General's advice, I am therefore not in a position to accept Deputy McDonald's amendment.
As I promised, however, I have reflected on how the amendment's intention could be recognised within the overall framework of protecting whistleblowers, as that is important. This is the aim of my approach to the legislation. In that context, I am examining how the procedures to be put in place in all public service bodies for dealing with protected disclosures could address the important issue of ensuring that public service employees who have concerns regarding breaches of professional codes or professional standards can make such reports without any concern regarding possible retribution or retaliation by the employer. We can implement this in our public service and Civil Service codes.
Section 5 does not capture the specific point raised by the Deputy. Rather, it relates to a multinational company and reporting some wrong-doing that occurred in a foreign jurisdiction. That wrong-doing would need to be a breach of the law.
I welcome the Minister's positive decision to make additions in respect of the code for the public service and Civil Service, but what I am referring to are legal instruments to which the State may have signed up but that remain unincorporated in statute. This is my concern.
The Minister may say it is a bit of a reach to say that some of these instruments might be called upon or referred to by workers in respect of violations or difficulties they might identify in their workplace. I cite the International Covenant on Economic, Social and Cultural Rights, for example, but I repeat the point that it is a gap in the legislation. If the Minister is not minded to amend the legislation in the way I am suggesting we have at least noted it on the record of the Oireachtas and if at any stage it becomes apparent that this is a difficulty, we have the option of amending the legislation. I withdraw the amendment.
I move amendment No. 11:
In page 9, to delete lines 27 and 28.
I move amendment No. 12:
In page 9, line 30, to delete “in accordance with” and substitute “in the manner specified in”.
I move amendment No. 13:
In page 10, line 5, to delete “in accordance with” and substitute “in the manner specified in”.
Amendment No. 14 arises out of committee proceedings. Amendments Nos. 14 and 23 are related and may be discussed together.
I move amendment No. 14:
In page 10, lines 9 to 11, to delete all words from and including “, and” in line 9 down to and including “true” in line 11.
I am concerned about this stepped approach, as the Minister described it, between reasonable belief and then that a concern or allegation might be substantially true. In explaining this stepped approach the Minister pointed to the British legislation. It is important to say in response to that that organisations such as Transparency International share my concerns in respect of this two-stepped approach. It is potentially confusing. It also leads to a scenario where workers second-guess themselves. All of us know that the experience to date has been one of marked reluctance for whistleblowers to come forward. Recent public controversies reflect the fact that workers in real time and in real terms have faced substantial stress and personal risk in doing just that. It is in the best interests of the regime to ensure that the provisions in the legislation are not misused for vexatious purposes or trivialities, but I am firmly of the view that a position of reasonable belief is a sufficient protection and threshold for any worker to come forward. My amendment No. 14 seeks to ensure that that threshold of reasonable belief - a single standard - is maintained throughout the legislation.
We had considerable debate on this issue and I set out on Committee Stage that I regarded this amendment as undermining in a significant way the basic architecture of the legislation, and it is modelled on the best international practices.
The Deputy's amendments propose the deletion of section 7(1)(b)(ii) that an external disclosure - this is to a person outside the company such as a journalist or somebody else - to a prescribed person under section 7 must be based on reasonable belief of the substantial truth of the information disclosed. That is the criterion to afford the protections to the individual. She also proposes the deletion of a similar requirement in section 10(1)(a) regarding external disclosures, for example, to the media.
It should be clear that the simple focus on the substantial truth test in the provision does not tell the full story. That test, in both cases where the amendments seek change, is subject to reasonable belief. For example, in section 7(1)(b)(ii), the test for the external disclosure to be afforded those protections is that the disclosure must have reasonable belief that the information disclosed, and any allegation contained in it, is substantially true. There are two hurdles. They must have reasonable belief that they are substantially true. They do not have to be fully true; they do not have to be true at all. One just has to have reasonable belief that they are substantially true. It is not a terribly high threshold but it is important. The notion that we could have very significant protections that would afford one five years salary, for example, if one did not have a belief that they were substantially true, before one gave them to an external person, seems to be a blow at what we are trying to do here. The whistleblower must have reasonable belief in the substantial truth of the information. The information may or may not be true. If he or she can show that he or she had reasonable belief that they were substantially true, he or she has met the criterion. By any objective measure I believe that is a reasonable threshold for enabling the disclosure into the public domain of what might be very damaging allegations.
We have to have balance in the way we construct this; otherwise, we will undermine the legislation. If there is no requirement to have reasonable belief of substantial truth before one makes very damaging accusations in the public arena, and one is protected by law for that, we could not hold public confidence in the whistleblowing legislation we are putting forward. As I said, the weakening of the threshold would be a detrimental blow to the intended operation of the regime we have set out. For that reason, and I am consistent with what I said on Committee Stage, I do not accept the amendments put forward.
The Minister is consistent but he is arguing a consistent contradiction because on the one hand he seems to be suggesting that reasonable belief in a substantial truth is almost a play on words-----
-----and on the other hand he is recognising that it is a second and higher threshold in terms of availing of the protections. I accept that we are not going to agree on this matter but in terms of lay persons who finds themselves in circumstances where it might be necessary or they might consider coming forward with an allegation or revelation, to ask for reasonable belief is one thing but to then ask the person to guess or establish the substantial truth will act as a barrier in terms of some persons coming forward. I hope I am wrong but our job here is to road-test this legislation, not just for its legal finesse but also for its practicality and how amenable and supportive it will be in real life for people who find themselves in circumstances where they would avail of these protections. In accepting that the Minister and I do not see eye to eye on this matter, I will still press amendment No. 14.
There has to be balance. If we move away from the balanced approach in this Bill so that we afford protections in all circumstances to somebody who makes an accusation, we will fundamentally undermine the Bill. The modelling I have talked about is examining the best international practice, and I have asked my team to examine best international practice. These matters have been legislated before the courts in the United Kingdom and they found that reasonable belief is a low threshold case but where there is demonstrable knowledge that the allegation is false, we have to have protections for people against that as well.
That is the balance that is implicit in the Bill. I genuinely believe that objectively a requirement for reasonable belief of substantial truth before a matter could be raised externally is the right threshold. Obviously, this threshold is not required in order for a complaint to be made internally to the company.
I move amendment No. 15:
In page 10, line 26, to delete "in accordance with" and substitute "in the manner specified in".
I move amendment No. 16:
In page 10, line 31, to delete "in accordance with" and substitute "in the manner specified in".
Amendments Nos. 17 to 21, inclusive, are related and may be discussed together by agreement.
I move amendment No. 17:
In page 10, line 32, after "advice" to insert "(including advice relating to the operation of this Act)".
Deputies will recall that on Committee Stage these amendments were the subject of discussion in the context of the circumstances in which advice from a solicitor or a trade union official on a legal matter constitutes what is captured as "legal advice". On the basis of my commitment to Deputies on Committee Stage, I asked my Department to consult further with the Office of the Attorney General on this particular legal issue. That office has confirmed that advice provided by trade union officials to members on, for example, how this legislation will operate or how it might be utilised, would fall within the scope of the term "legal advice" in exactly the same way that advice from a solicitor would be characterised and protected as legal advice.
The Attorney General's office also advises that it would not be prudent to replace the term "legal advice" in this provision with the word "advice" as, in the case of trade union officials, it would create uncertainty as to the circumstances where a protected disclosure may have been made and when a whistleblower might expect to benefit from the provisions provided under the legislation. For those reasons, the legal assessment is that the term "legal advice" should be retained in the legislation. The Attorney General's Office did, however, endorse the proposal that a text in parenthesis could be included in the provision to make it clear in the legislation that "legal advice" extends to "advice" on the operation of the protected disclosures regime. This is the purpose of amendment No. 17.
I have also carefully considered Deputy McDonald's proposal that the disclosure channel be extended beyond solicitors and trade union officials to, as proposed in her amendment, "other suitably qualified individuals who give advice on legal issues and legal rights as part of their public advocacy role". The legal assessment is that this amendment is not necessary in light of the existing provision which allows for a protected disclosure, using this provision, to be made to any solicitor. In such circumstances, if any public advocacy organisation is willing to provide legal advice from a solicitor based on operation of this legislation, that advice is captured by the definition already in place. The Deputy may have in mind extending the scope of the provision to allow a protected disclosure to be made to a paralegal or a person without legal qualifications. I have considered this and do not believe it is wise to enable a situation in such circumstances that advice on the operation or use of the legislation - in essence, legal advice - is provided by an individual who is not legally trained. Given the complex legal issues that can arise in whistleblowing cases, the critical importance of the worker's decision-making on a step-by-step basis and the risk that the advice received would be not sufficiently well informed or ground in proper legal basis and of the person being misguided by inappropriate legal advice, I have decided not to move in that direction. Given the existing role and experience of trade unions in representing the interests of their members - I worked out of a trade union office for many years - and the legal advice available to trade unions I would have some concerns if we moved outside those parameters in relation to this Bill.
Deputies will note that I am also proposing a revised wording of section 9 arising out of amendments Nos. 17 and 19, which encompass an official of an exempted body within the meaning of the Trade Union Act 1941, to provide that an exceptional body within the meaning of section 6 of the Trade Union Act 1941 includes bodies which were included on the register maintained by the Registrar of Friendly Societies for the purposes of representing workers in their relations with employers or to act as representative bodies for particular interest groupings.
I am satisfied that as stated by the Minister this is the correct balance to strike. However, in the context of public exposition of this legislation in terms of official publications and so on it is important for workers that the appropriate channels are set out in plain language. Given not everyone has access to the wisdom of the Attorney General's Office it is essential the appropriate channels are clearly set out for workers.
We enact legislation. However, we do not expect every worker to be able to follow or understand it, particularly when there are significant personal consequences for them. I indicated on Second Stage that I had asked IBEC and ICTU to work together on a simple communication structure in respect of this Bill, to be published in tandem with enactment of the legislation so that employers and all trade union members and employees will have a simple guide to the operation of the Bill, with training courses in that regard provided.
I move amendment No. 19:
In page 10, line 32, to delete "solicitor or trade union official" and substitute the following:
"solicitor, trade union official or official of an excepted body (within the meaning of section 6 of the Trade Union Act 1941)".
I move amendment No. 22:
In page 10, to delete lines 34 and 35 and substitute the following:
“10. (1) A disclosure is made in the manner specified in this section if it is made otherwise than in the manner specified in sections 6 to 9 and—".
Amendment No. 23 has been already discussed with amendment No. 14. Is the amendment being pressed?
Yes. I move amendment No. 23:
In page 10, to delete line 36, and in page 11, to delete line 1.
I move amendment No. 24:
In page 11, line 9, to delete "in accordance with" and substitute "in the manner specified in".
I move amendment No. 25:
In page 11, line 13, to delete "under" and substitute "in the manner specified in".
I move amendment No. 26:
In page 11, line 16, to delete "in accordance with" and substitute "in the manner specified in".
I move amendment No. 27:
In page 11, line 17, to delete “in accordance with” and substitute “in the manner specified in”.
Amendments Nos. 28 to 31, inclusive, are related and may be discussed together.
I move amendment No. 28:
In page 14, lines 34 and 35, to delete “shall take all reasonable steps to avoid disclosing” and substitute “shall not disclose”.
This group of amendments relates to an important issue at the core of the Bill, that of seeking as much as possible, consistent with the objectives of the legislation and other important policy objectives, to differentiate between the message and the messenger through the safeguarding of the identity of the potential whistleblower. We had an extensive debate on this issue on Committee Stage.
I am very cognisant of the concerns raised by Deputies Mary Lou McDonald and Sean Fleming to the effect that the duty imposed on the holder of a protected disclosure in section 16(1) is qualified by the test that such a holder shall take all reasonable steps to protect the identity of the discloser. There is clearly a risk that the qualification may be interpreted in practice in a permissive way – that was the argument made by Deputies opposite - notwithstanding the risk of legal action for disclosing the identity of a whistleblower. However, we must also be aware of the fact that circumstances will arise where it may not be possible to safeguard completely the identity of a whistleblower, particularly where disclosing the identity of the whistleblower in a restricted and limited way is essential for action to be taken to address or redress the issues being reported. As I committed to doing, I have reflected further on the balance between these intentions since we had a good, robust debate on Committee Stage.
The effect of the amendment I am tabling, No. 28, will be to remove the "all reasonable steps" qualifier from section 16(1) so as to make the duty to protect the identity of the whistleblower absolute in the first instance. Deputies will, however, acknowledge that it is essential that recipients of disclosures are not precluded from taking necessary action on foot of the information disclosed to them because it may require them to disclose the identity of the whistleblower. If there was only one potential source of information, that might become obvious. We cannot have circumstances where the person is precluded from actually addressing the wrongdoing concerned because the mere addressing of it would inadvertently identify the one person who might be able to report the wrongdoing.
The amendment to section 16(2), therefore, makes explicit the specific and limited circumstances that objectively could warrant the departure from what I am including, the mandatory prohibition on the disclosure of the identity of the whistleblower. The legal assessment is that the effect of amendment No. 29 will be to place the burden squarely on the recipient of a disclosure to demonstrate, where the identity of the whistleblower has been revealed, that all reasonable steps were taken to avoid such a disclosure. I understand the legal assessment is that the test will set a high standard for the recipient of the disclosure in terms of protecting the identity of the discloser. I am confident that my proposed approach, when considered in conjunction with the provisions of section 16(3), whereby the holder of a disclosure can be subject to an action for any loss arising, represents a significant strengthening of the Bill in the direction Deputies sought, that is, safeguarding in so far as is prudent and practicable the identity of whistleblowers consistent with the concerns raised by Deputies opposite but also with making sure the wrongdoing is dealt with.
Amendments Nos. 30 and 31 are also in the group. Having considered the concerns raised by Deputies about the necessity of the recipient of the disclosure to seek express written permission for the disclosure from the discloser in amendment No. 30, it seems that given the absolute duty to protect the identity of the discloser we are now enshrining in the Bill, the proposed amendment is unnecessary and I hope the Deputy will not press it.
Amendment No. 31 proposes the deletion of that part of section 16(2)(b) that lists the circumstances in which the duty to protect the identity of the discloser does not apply, particularly where a breach is required for the effective investigation of the wrongdoing. I refer to where the reported wrongdoing cannot be fixed without such a breach. It is essential that the holder of a disclosure is not prevented from taking such action. That is common sense and I hope the Deputies opposite will accept this.
The deletion of line 7 in page 15 would place a very high hurdle in the path of a recipient of a protected disclosure who is required to investigate an alleged wrongdoing. I am satisfied that the combined effects of the amendments I am proposing, Nos. 28 and 29, will be to maximise to the extent that is reasonable, prudent and right the protection of the identity of the whistleblower, and meet the valid concerns raised by Deputies on Committee Stage.
It would be a little farcical and render the legislation null and void if provisions within it were to set out to paralyse the recipient of a disclosure. We all recognise this. That is not what my amendments are intended to do. This is not only about the investigation of an allegation or complaint but also about the revelation of the identity, or the protection of the identity, of the whistleblower. In addition to the thresholds with which any worker would have to be satisfied, involving a reasonable belief an allegation is substantially true, there is the core issue - the level of risk to the worker. Other factors are confidence in the process and confidentiality. We can all imagine somebody in these circumstances. It is essential that there be a consent provision in the legislation. It does not have to be in writing. In fact, the amendment does not suggest this; it suggests there be positive consent given by the complainant, except in circumstances where there is a serious risk to the security of the State, public health, public safety or the environment, where it is believed disclosure is necessary for the prevention of a crime or the prosecution of a criminal offence, or where the disclosure is otherwise necessary in the public interest or required by law. There are already in the legislation significant waivers in respect of the need for consent. That is absolutely appropriate, but it is equally appropriate to strike a balance in the legislation to ensure protections for the individual. The phenomenon of whistleblowers falling over one another to make revelations has not been the culture in Irish organisations, public or private; rather, the instinct or culture is for people to keep their heads down and say nothing. Therefore, the legislation must afford a minimum level of protection and give confidence to any worker coming forward. I respectfully suggest to the Minister that he reconsider his position on this matter. I do not believe the balance is struck in the legislation as drafted.
I believe we have the same objective and that we have achieved the same result by different means. I have moved to delete in amendment No. 28 the phrase “shall take all reasonable steps to avoid disclosing” and substitute “shall not disclose”. There are sanctions against disclosure. This obviates the need to have permission to disclose. The law states one shall not disclose.
Section 16(2) states:
(b) the person to whom the protected disclosure was made or referred reasonably believes that disclosing any such information is necessary for—
(i) the effective investigation of the relevant wrongdoing concerned,
(ii) the prevention of serious risk to the security of the State, public health, public safety or the environment, or
(iii) the prevention of crime or prosecution of a criminal offence,
These are the only escape clauses for the thou-shalt-not provision. I have more than met the requirements of the Deputy without placing an additional burden on anybody. I have approached the same issue in a different way.
I move amendment No. 29:
In page 15, between lines 1 and 2, to insert the following:
“(a) the person to whom the protected disclosure was made or referred shows that he or she took all reasonable steps to avoid so disclosing any such information,”.
I move amendment No. 30:
In page 15, to delete lines 2 to 4 and substitute the following:
“(a) the person to whom the protected disclosure was made or referred has ascertained, by way of express permission by the person making the protected disclosure, that she or he does not object, in particular if the person to whom such disclosure is made reasonably believes that this is necessary for the purpose of the effective investigation and rectification of the relevant wrongdoing concerned,”.
I move amendment No. 31:
In page 15, to delete line 7.
I move amendment No. 32:
In page 15, line 34, to delete “in accordance with” and substitute “in the manner specified in”.
I move amendment No. 33:
In page 15, line 35, to delete “in accordance with” and substitute “in the manner specified in”.
I move amendment No. 34:
In page 16, line 1, to delete “in accordance with” and substitute “in the manner specified in”.
I move amendment No. 35:
In page 16, line 6, to delete “in accordance with” and substitute “in the manner specified in”.
I move amendment No. 36:
In page 16, line 15, to delete “in accordance with” and substitute “in the manner specified in”.
I move amendment No. 37:
In page 16, line 16, to delete “in accordance with” and substitute “in the manner specified in”.
I move amendment No. 38:
In page 18, line 3, to delete “in accordance with” and substitute “in the manner specified in”.
I move amendment No. 39:
In page 18, line 4, to delete “in accordance with” and substitute “in the manner specified in”.
Amendments Nos. 40 and 41 are logical alternatives and may be discussed together.
I move amendment No. 40:
In page 18, to delete lines 11 to 16 and substitute the following:
“102A. (1) Where a disclosure relating to the Garda Síochána is disclosed to the Ombudsman Commission as a prescribed person under section 7 of the Protected Disclosures Act 2014 in respect of disclosures so relating, it may, if it appears to it desirable in the public interest to do so, investigate the disclosure, even if the worker (within the meaning of that Act) making the disclosure is a member of the Garda Síochána.”.
Again, the Deputies opposite will recall that at the conclusion of the Second Stage debate I indicated that the priority must be that the legal framework presented in this Bill protect in all respects members of An Garda Síochána who wished to make protected disclosures under the legislation. On the basis of the Government's examination and decision making on this issue, it has been agreed to provide for what is termed the mainstreaming of An Garda Síochána for the purposes of the Bill. In other words, members of An Garda Síochána are subject to the legislation in exactly the same way as any other worker or employee. No further legal requirements apply to them beyond the provisions of the protected disclosures legislation. Section 19 and a number of associated technical amendments accepted on Committee Stage bring members of An Garda Síochána, including members of the Garda Reserve, fully within the ambit of the Bill. In short, members of An Garda Síochána will, for the purposes of making confidential reports, be treated in a similar manner to every other worker in the State and will have access, without exception, to all of the protections in the panoply of labour relations organisations as are afforded to any other worker.
Deputies will recall that the former Minister for Justice and Equality announced that the Garda Síochána Ombudsman Commission would deal with disclosures by members of An Garda Síochána. While section 19(1)(a), as approved by the committee, was intended to implement this policy approach, I am conscious of the comments made by Deputy Sean Fleming on Committee Stage that the wording might be misinterpreted and presented as ambiguous, notwithstanding my assurances to him and the clear Government decision that members of An Garda Síochána could make disclosures to GSOC and the fact that the effect of the amendment proposed to the Garda Síochána Act 2005 would be to allow this. In view of the points made by Deputy Sean Fleming and my reflections on them and on the basis of further discussions I have had with the Office of the Attorney General, amendment No. 40 is intended to address the Deputy's concerns. The proposed wording is, in fact, closely allied with what the Deputy suggested on Committee Stage and is now proposing.
In response to amendment No. 41 - the "may" versus "shall" issue we also discussed - in regard to that part of the legislation relating to the investigation of a matter by the Garda Síochána Ombudsman Commission, it states that where GSOC receives such a complaint, "it may, if it appears to it desirable in the public interest to do so, investigate any disclosure". The view of the Deputy is that it should read " it shall...". In the first instance, as I said on Committee Stage, we have set up a completely independent investigative organisation, GSOC, and the House is now of a mind to give it even greater independence and more authority as an independent investigative body of An Garda Síochána. Therefore, it must be allowed to exercise that independence and discretion in a manner that it chooses, rather than it being prescribed by the House. Without this discretion, the regulatory body is put in a position where, irrespective of its assessment, it is obliged to take a particular course of action. That is not right. I have thought about the issue and what the Deputy has said. If we truly believe we want to have an independent oversight body, we should not say that, whatever its conclusion is, it "shall" do this. That is a view which has been sustained by my reflections in the last while.
In the case of this provision, the Office of the Attorney General has advised that once a matter has been determined by the commission to be in the public interest, there is obviously an onus on it to carry out such an investigation. On balance, I hope the Deputies will agree with me that if we are serious about creating, maintaining and allowing a robust independent oversight body, we should not give it directions in law; we should allow it discretion to make that determination.
I want to clarify one issue. There are two amendments grouped for discussion purposes, amendment No. 40 in the name of the Minister and amendment No. 41 in mine. The Acting Chairman has said they are logical alternatives. Is he suggesting that if amendment No. 40 is passed, I may not move amendment No. 41?
That is correct.
Therefore, if I have a problem with amendment No. 41 not being moved, I will have to oppose amendment No. 40 because I will not be able to move amendment No. 41.
I thank the Minister for considering this matter, on which we had a detailed discussion on Committee Stage. There are many important issues to be discussed today and further amendments before we finish the debate. This amendment has a resonance among the public because if this legislation does not stand the test when it leaves this Chamber and has been signed by the President such that it affords protection to gardaí, it will be seriously diminished. That is why I brought forward a specific amendment on Committee Stage, on which we had a detailed discussion. I note that while the Minister has gone some way towards changing the wording, he has not changed the effect of the legislation.
Both amendments seek to delete lines 11 to 16 on page 18. While I will not go over everything I raised on Committee Stage, I need to refer back to it. The section, as presented on Committee Stage and which we are now seeking to amend, commences with the words: "If the Ombudsman Commission is prescribed...". I had a big issue with the word "If" because it was not definite. We moved on to the second element, where the Bill stated: "if it appears to it desirable in the public interest ... GSOC may investigate". People want to be sure in a case where it is desirable to investigate in the public interest; we should not shilly-shally. It is either in the public interest that an issue be investigated or it is not. It is not good enough to say there is a matter to be investigated in the public interest, but we do not feel like doing it.
People want to have absolute confidence. It is ironic. Yesterday, the Minister published a report about accountability in the public service, the theme of which was making the public service more accountable, yet here we are saying that even when matters are in the public interest, the Minister does not necessarily want public accountability. It is a case of perhaps we will or perhaps we will not. That is not good enough and runs counter to the theme of what the Minister has said on other occasions and in his press release yesterday about making the public service more accountable. To say "Even if it is in the public interest to investigate a matter, we do not really have to do it," allows a public service body off the hook. That is not good enough in this day and age. I will come back to that point in further detail.
We are discussing amendments Nos. 40 and 41. Amendment No. 41, which is in my name, states: "the Ombudsman Commission is prescribed under section 7 of the Protected Disclosures Act 2014 in respect of disclosures relating to the Garda Síochána", so I was absolutely specific - no ifs, buts or maybes. The Minister has come back with his amendment, which states:
In page 18, to delete lines 11 to 16 and substitute the following:
"102A. (1) Where a disclosure relating to the Garda Síochána is disclosed to the Ombudsman Commission as a prescribed person under section 7 of the Protected Disclosures Act 2014 in respect of disclosures so relating, it may, if it appears to it desirable in the public interest to do so, investigate the disclosure, even if the worker (within the meaning of that Act) making the disclosure is a member of the Garda Síochána.".
Let us see what section 7 says, because amendment No. 40 refers specifically to it. It states that the Minister may by order prescribe bodies. Instead of stating that it is prescribed, the amendment now provides that the Minister may prescribe. It is still not definite. The Minister has taken out the word "if" and put in the word "may" by referencing section 7. It is still not definite. The Minister has gone a bit of the way on one of the issues I sought to address by taking out the word "if", but he has effectively substituted the word "may". The effect of this section is that the Minister may designate the Garda Síochána Ombudsman Commission as a prescribed body and, even if a matter that requires investigation is in the public interest, the Garda Síochána Ombudsman Commission may investigate it. Those two "mays" are not good enough. We want definitive positions in respect of those matters.
The Minister spoke about mainstreaming, with which I do not disagree, but it is not possible to mainstream it because of all the people in the public bodies, the Minister has picked out a particular section and a particular reference to deal with. The Garda Síochána and the Garda Síochána Ombudsman Commission are then dealt with separately in this legislation. Yes, the Minister wants to make them as mainstream as possible, notwithstanding the fact that they are being dealt with separately in the legislation.
Saying that the Minister may prescribe a body is not strong enough. We have no assurance when we leave the House after this legislation is passed today, having gone through the Seanad, that it will be so prescribed. The reason I raise that particular issue, of which the Minister is aware, is because when we were here last week, I asked him about legislation he had passed since coming to office that he had not yet commenced. We will not go into the case of the former Minister for Justice and Equality, Deputy Shatter. Legislation was passed but it was not commenced. The Minister went on to tell us that one of the most long-standing and important pieces of legislation that went through his Department - the Construction Contracts Act - has still not commenced even though it was passed a year ago. The Minister is asking us to accept that he will do something when the legislation just gives him the option of doing it. When he was given the option in respect of that important piece of legislation, he still did not commence it. In respect of commencing legislation, we regularly listen to statements from the Minister about stimulus packages, construction and getting projects moving, but we then find that the Construction Contracts Act has not even been commenced by the Minister, for a variety of reasons. The exchange with the Minister about legislation that has been passed in his Department but not yet commenced is directly relevant to this section, because section 1 states that it will come into effect on a day appointed by the Minister, so it does not come into immediate effect upon signing by the President. The Minister may or may not choose to do so. If the Minister can give me an exact date by which he will sign and so prescribe those organisations under section 7, it would be a big help to this debate.
Looking at the performance of this Government in respect of commencing sections, as the Minister proposes to do here in section 7, I put the same parliamentary question to every other Minister about legislation passed in the past three years and items not yet commenced. The range is staggering - child care, social welfare and foreign affairs legislation. I mentioned one relating to the Minister's own Department. There are a litany of cases in which legislation has been passed in this House but has not yet been commenced by the Government, having been debated at length in the House. The public probably presumes that this legislation is in operation but we find that this is not the case. There is a big lacuna in this regard - a gap in confidence as to whether, when the Minister is given the power to do something down the road, he will do so in a timely manner. The practice we have seen here in the past seven days does not inspire confidence in that regard.
Instead of the phrase "if the Garda Síochána Ombudsman is prescribed", we now have "the Minister may prescribe". This is not a sufficient advance and is not definitive. My wording is more definite and superior. The wording of the amendments match very closely, except for the opening line and one other word - "shall" versus "may". My amendment is saying that the Garda Síochána Ombudsman Commission is prescribed under section 7. When the Minister comes to respond, I will be asking him to say that he accepts the merit of removing doubt, wants to make the public service more accountable, and does not want to provide any opportunities for ifs, mays and buts or for the public service to weasel out of its responsibilities, particularly since he has acknowledged in the legislation that the matter of GSOC is in the public interest, but there will still be no requirement under this legislation for the Garda Síochána Ombudsman Commission to investigate the matter. I know we talk about Garda discretion, an element of which is often required. However, what happens when complaints are made by a worker who is a member of An Garda Síochána within the meaning of this Bill to the Garda Síochána Ombudsman Commission and the commission is satisfied that there is a valid complaint - because if it is not valid it does not come under this - and is satisfied that the complaint requires investigation in the public interest but does not want to do so? We should not giving the public sector so much discretion, because that will damage public confidence. This legislation needed a belt-and-braces approach relating to complaints by members of An Garda Síochána to the Garda Síochána Ombudsman Commission, but it does not use such an approach. The Minister is still leaving wriggle room for the Garda Síochána Ombudsman Commission to decide whether or not it will investigate a matter in the public interest and there is still wriggle room for the Minister as to whether it will ever be the designated body for receiving such complaints.
There is too little certainty. The issue of the Garda whistleblowers went to the Committee of Public Accounts. I will not go through everything that happened. People want to feel that the Oireachtas is responding definitively to this matter - not that the Minister may do it or that Garda Síochána Ombudsman Commission may choose to investigate matters in the public interest. The Minister recognises the point I have made but the draftspersons have got to him to say that we should not tie people's hands, we should not be definite, and we should leave wriggle room, scope and ambiguity.
The time for ambiguity when it comes to members of the Garda making complaints in the public interest and having them investigated by GSOC has long since passed. We want definitive, prescribed primary legislation and not a statutory instrument.