JOINT COMMITTEE ON FINANCE, PUBLIC EXPENDITURE AND REFORM díospóireacht -
Wednesday, 23 May 2012

Protected Disclosures in the Public Interest Bill: Discussion (Resumed)

Chairman

I welcome Ms Esther Lynch of the Irish Congress of Trade Unions, Ms Phil Ní Shéaghdha of the Irish Nurses and Midwives Organisation, Mr. Matt Staunton of IMPACT, and Mr. Seamus Shields of the Irish Bank Officials Association. The organisations' briefing documents were circulated via e-mail in advance of this afternoon's presentations. After Ms Lynch has made some opening remarks, we will begin our question and answer session.

I remind members, witnesses and those in the Gallery that all mobile phones must be completely switched off and immobilised so that they cannot ring or make any other odd sounds that might interfere with the quality of sound in the room. I advise the witnesses that by virtue of section 17(2)(l) of the Defamation Act 2009, they are protected by absolute privilege in respect of their evidence to this committee. If they are directed by the committee to cease giving evidence on a particular matter and they continue to do so, they are entitled thereafter only to a qualified privilege in respect of their evidence. Witnesses are directed that only evidence connected with the subject matter of these proceedings is to be given. They are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person or persons or entity by name or in such a way as to make him, her or it identifiable. I remind members of the long-standing ruling of the Chair to the effect that they should not comment on, criticise or make charges against a person outside the House or an official by name or in such a way as to make him or her identifiable. I invite Ms Lynch to address the committee.

Ms Esther Lynch

I thank the Chairman and the members of the committee. If it is okay with the Chairman, I propose to share my time with my colleagues.

Chairman

Yes.

Ms Esther Lynch

My introductory remarks will be brief. I want to make three points about the proposed Bill. First, legislation in this area is needed urgently and should be introduced without any further delays. We strongly urge the committee to recommend in its report the early publication and enactment of the Bill. The protections provided for in the Bill must apply to everybody who is at work. Such people are not necessarily employees. We welcome the proposal in the heads of the Bill to provide for a broader definition in this regard. We would be unhappy if loopholes were to exist that would fail to ensure agency workers, interns or those employed for less than six months are covered by this legislation. Those who may wish to come forward and report their concerns in the workplace must be protected from their first day at work, regardless of the construction of their contracts of employment or contracts for service.

The second point I would like to make is that the protections offered by this legislation must be real. A person who is unfairly dismissed can wait for up to two years to have his or her case heard. If various other appeals mechanisms have to be invoked, one can be three or four years down the line by the time one's case is finally resolved. That would lead to financial ruin for most families. It would be unacceptable for a person who has come forward to blow the whistle to have to carry such a burden for four years, even if he or she wins his or her case eventually. That is why the legislation in the UK and many other jurisdictions provides for interim relief. For this reason, the United Kingdom and many other jurisdictions provide for interim relief. This means that rather than the presumption being made that a person's dismissal was fair, it is presumed the dismissal was unfair and the person may be reinstated in his or her job while waiting for the case to be heard. This provision has not caused any widespread disruption in the labour market or in workplaces in the United Kingdom and elsewhere. ICTU questions the reason interim relief has not been included in the heads of Bill and strongly recommends the inclusion of such a provision in the Bill.

As it has not been practice in Ireland to have in place procedures to deal with whistleblowing, it would be helpful if the Bill provided some guidance to employers and employees as to the steps they should take to make a protected disclosure in their workplace. In the event that a person is making a protected disclosure to a regulator or into the wider domain, it would be helpful if everybody was clear about the steps he or she would be expected to take to keep himself or herself within the protections of the legislation and ensure reports he or she makes do not, for example, fall within the category of reckless reports.

Mr. Matt Staunton

I note the Oireachtas has its own Library and Research Service which has provided a comprehensive spotlight document on this issue. As is clear from the document, research shows there is first division or premier league of countries which provide high levels of protection for workers. These are listed as the United States, United Kingdom, New Zealand, Australia, Canada and South Africa. IMPACT's written submission notes that the heads of Bill appear to indicate that Ireland will take a light touch approach, which will be softer than the approaches taken in the mainstream countries. We advocate providing real protection for whistleblowers as opposed to engaging in a token exercise. For this reason, we have highlighted the need for proper burden of proof to be imposed on the employer in cases of whistleblowing and the introduction of interim relief, that is, a provision allowing people to continue to work while making a case that they are being victimised. This is a key point.

Ms Lynch alluded to the need not only to pass the legislation but also to request the Minister for Jobs, Enterprise and Innovation, Deputy Richard Bruton, to instruct the Labour Relations Commission and agencies under his aegis to draft a formal code of practice to ensure tangible policies and procedures are in place in workplaces to address whistleblowing incidents should they occur. From my visits to employers, I am aware that since the passing of the grievance and disciplinary code of practice, which is underpinned by a statutory instrument, rows no longer take place about how to handle a grievance or disciplinary matter. A path for employees to follow has been laid down and a similar path must be laid down for cases of whistleblowing. IMPACT hopes that concurrently with the legislation, arrangements will be made to touch base with the Labour Relations Commission. The LRC knows this is a burning issue in the workplace because its research department has identified the issue. The commission is probably ready to hit the ground running by providing a policy in this area. We have a golden opportunity to do so because the legislation allows for the introduction of a statutory instrument and a request by the Minister to the LRC that it draft a code of practice to provide something tangible for whistleblowers.

It is difficult for a trade union official to read legislation without individual cases he or she has encountered coming to mind. I will refer to a particular case, which I do not propose to discuss in detail, involving a multinational company engaged in the communications industry. The individual in question was kept awake at night wondering what would be the consequences for his family if he chose to blow the whistle about his company. Having decided to do the right thing and blow the whistle, he found to his horror that his workplace life became a misery and he was hounded out of his job. He sought redress at the Labour Court, the Labour Relations Commission and a rights commissioner and despite all of them finding in his favour, the employer still has the right to dismiss him. He took a case against his dismissal under the Unfair Dismissals Act, the only legislation available to him, and a rights commissioner ruled that he was unfairly dismissed because he was a whistleblower. The employer has every intention of appealing, with a view to burning off the individual in question, because few individuals can afford to take a case to the Supreme Court to secure their rights. This is the reason we emphasise the need to provide for interim relief and impose the burden of proof on the employer. The legislation would be meaningless without these provisions.

Mr. Seamus Shields

Effective protection for whistleblowers is a vital ingredient for securing the change in operating culture that is essential for the recovery of Irish banking. While I appreciate that this legislation emanates from the Department of Public Expenditure and Reform, its provisions should extend across the public and private sectors. The example of the banking sector is appropriate under the circumstances. If whistleblower protection had been in place during the latter years of the Celtic tiger, many of our concerns about the troubling developments in Irish banking may have been taken more seriously by the authorities. The inability of the Irish Bank Officials Association to produce hard evidence of abuses in the banking industry resulted in our concerns being relegated, if one likes. We were widely viewed as party poopers, which is an appropriate analogy given that the party was in full swing at the time. We know now that even if we had managed to produce hard evidence, it is unlikely the light touch regulatory regime in place at the time would have responded effectively to it.

The reason the banking sector was able to achieve such a reckless performance, perhaps with the knowledge of its employees, was the climate of fear in the industry. This climate, which endures, means employees in banking are unwilling to come forward to disclose possible infringements and infractions of ethics and legislation. Most bank staff believe that if they were to stick out their necks, there is every likelihood they would suffer as a result. While they may not be dismissed specifically for disclosing a confidence, as it were, there is every likelihood they would be managed out of their current employment. There is also every likelihood, especially in the current climate in banking, that they would be effectively blacklisted in terms of the possibility of securing future employment in the industry.

The tragedy is that the climate of fear I speak about arose from a natural respect for customer confidentiality. It is fair and reasonable that staff are required to treat the business of the organisation they work for with appropriate confidentiality. However, over the years and especially in recent years, we have seen a grotesque form of omerta emerge in banking. This has meant that bank employees who offer even the mildest and most general criticisms of the sector as opposed to their employer are not only likely to incur the wrath of management on the ground for being disloyal to their institution, but they also run the risk of being charged with bringing the bank into disrepute, a disciplinary offence that is likely to result in suspension or, more likely, dismissal. The obvious irony is that a senior executive can bring a bank to the brink of collapse with apparent impunity, whereas a staff representative who makes passing reference to, for example, the pressure on banking staff generally when dealing with distressed customers, he or she will be deemed to have damaged the reputation of his employer. That is the sad position in which banking staff find themselves.

IBOA members would definitely welcome the introduction of effective whistleblower protection. This protection should ensure, as my colleagues have stated, that the whistleblower making a disclosure in good faith is not placed at an actual or apparent disadvantage during the process. For example, removing an employee from the workplace and from contact with his or her colleagues, through suspension for example, even on full pay, would make it far easier for the employer to pay the employee off in due course, after he or she has endured a period, as Ms Lynch has indicated, of effective isolation, possibly without any other means of support.

It is also important to ensure that protection is provided for whistleblowers who may only be threatened with disciplinary action. There seems to be a focus in the draft legislation on actual outcomes, but sometimes the same result can be achieved by threatening an outcome, without delivering it. The employer can achieve the same result by threat without seeing it through. We are particularly concerned that employers may attempt to threaten to take such action, perhaps more in order to set an example to other employees about the consequences of whistleblowing rather than necessarily always punishing the particular individual. Therefore, the legislation should seek, as far as possible, to discourage that kind of behaviour.

Ms Phil Ní Shéaghdha

I echo what my colleagues have said. The INMO has lobbied for whistleblowing legislation for a long time and we welcome this Bill. We have some experience in this area in that the Health Act was amended to include section 9A, which allows for protected disclosure in the public sector and our experience has been that the remedy falls short and does not promote whistleblowing. This is because the remedy comes after the event and one must prove one was adversely affected. Therefore, one would not proactively seek to open up areas that might raise issues that need to be brought to the Minister's attention.

With regard to this Bill, we seek that the provisions be the same for private sector employees - private hospitals, agencies and GP practices where it is very unlikely that an individual on a one-to-one employment relationship basis will blow a whistle - and that they are provided with real protection. This must allow for an authorised person, as in section 9A, outside of the employment to ensure the employee can make a confidential disclosure if there is something happening in the particular workplace that affects the welfare of the people under care. The Bill proposes that confidential disclosure would be, for example, to a statutory body. Currently, HIQA does not have any responsibility in private practice areas such as GP practices or private hospitals. Therefore, there is no body to which a person with a concern can go outside of the immediate employer. We believe this sways the situation so that individuals will be unable to make the disclosure.

It is important to remember that agency staff are covered by section 9A of the Health Act and are considered employees for the purpose of protected disclosures. This should follow into this legislation. Our experience is that when issues have been raised, that is usually by somebody not normally working in the environment. They see the issues as out of the ordinary, they are not accustomed to them and they raise concerns. In the private nursing home sector, where there is still a high dependency on workers who are visa dependent for residence, the likelihood of these workers making a protected disclosure that would put their right to reside in the State in jeopardy is limited, unless they have real protections. The amendment we propose is that the disclosure can be made to the Minister, in this case the Minister for Health who has responsibility for the provision of health care, particularly in the private sector where public funds are being used, for example, in the form of subsidies for GPs and private hospitals in the provision of public care, and that the same principles should apply.

I have already mentioned the definition of workers and this is covered in section 9A. Anybody in the health sector providing care is considered to be covered by the protected disclosure. The issue of confidentiality versus anonymity must be examined. It is important in a small area of employment where there is a one-to-one relationship that the confidential disclosure is made to an authorised person, who may not necessarily be in that employment. That is not an anonymous complaint, but a confidential complaint or disclosure.

Deputy Sean Fleming

I thank contributors for their presentations. On the issue of complaints made in good faith, significant emphasis is being put on the "good faith" aspect. It regularly happens that a person makes a necessary complaint highlighting an important issue. The complaint may be made through bad faith, but that may not take from the importance and accuracy of it. Therefore, should we look at the issue in the context of the nature of the complaint rather than in the context of the mindset of the person making it? The mindset of the person making the complaint is neither here nor there once the facts are being investigated. Whether the person made the complaint in good or bad faith is irrelevant once the complaint is on the desk, where it is then free from the emotion of the mindset of the person who made it. I have an open mind on this. Inevitably, some people make disclosures in bad faith, but it may be a good thing that the disclosure is made. Just because a person has fallen out with somebody does not mean the legitimacy of the complaint is in question. The position in the United Kingdom and other areas is that the person may be retained in employment. Are there any exceptions to that of which the witnesses are aware? For example, are there cases where the issue is so serious or fundamental to the organisation that a summary dismissal or removal might be justified?

I understand where ICTU is coming from on this as its practice is to allow workers seek help from their union. However, that essentially suggests that non-unionised workers should have fewer rights. That is a concern. I do not know the figures, but there are approximately 600,000 members of trade unions, half of whom are public servants. Therefore, there are approximately 300,000 union members in the private sector out of approximately 1.5 million employees. I do not know the exact figures, but I expect that only approximately 25% of the workforce in the private sector is unionised. Giving extra standing to the minority in trade unions is not fair to the majority of workers in the private sector. However, I understand why ICTU makes its point.

On the question of being infallibly and vicariously liable for reprisals, sometimes other workers might be cross with the person or customers might not want to deal with somebody they feel is disloyal to their employer or supplier. Is ICTU aware of many such cases in other countries? I put the point that people may be being asked to be liable for something over which they have no control or influence. On the open-ended issue of uncapping compensation based on future losses, there is probably a case for that because a person could be blacklisted for two years and unable to get work. The person could be in his or her 40s and unlikely to get work again. I understand the need for this, but it is something we will probably have to tease out and limit. We must consider who, ultimately, will pay that person. One would not want to give rise to a situation where, because somebody feels like retiring at 40, he or she makes an allegation and ensures he or she is blacklisted so that he or she will then be paid to play golf for the rest of his or her life. One can understand what would happen if this was taken to the extreme.

Some of the main issues mentioned relate to HIQA and the health sector. Some of the disclosures made have related to health and the care of people. HIQA does not apply in the private sector and the INMO suggests that complaints should be made to the Minister. Is there anyone else to whom complaints could be made in the private sector in general? In the public sector, there are unions, Ministers and processes and it is much easier to handle some of these issues. However, who in the private sector, including outside the health sector, would be the appropriate person to whom one should report. The INMO suggested a Minister, but is there anyone else rather than a Minister?

Ms Esther Lynch

My experience of the question of good faith is normally in circumstances where a person has made a report and it is not accurate. The question then is how do we deal with these circumstances. To my mind, a fair system looks at whether the incorrect report was made maliciously. Was there good faith in making it, even though the information given was not accurate? In the draft heads there is a three tier approach, with the onus on a person to establish the facts being reduced if the report is made internally than if it is to be made to a regulator or another person. The balance is right in the draft heads and I commend the three tier approach. There are often circumstances where a person will never know all of the facts, but there are gut instincts. That is the point at which a person should make an internal disclosure and be protected from reprisals from colleagues or others. In respect of the UK example on interim relief, that is fine, but the onus should be on the employer to argue a reason a person should not be kept on, rather than the opposite where the employer is automatically trusted to do the right thing.

The reason we were looking at the issue of trade union protection brings us back to the Deputy's first question. Somebody might be looking for advice on what he or she should do with what he or she might know; therefore, the idea is that the discussion with the person's trade union would be protected. The person concerned should be able to have a discussion with a union representative because when many people think about how they should approach their employer, their first point of call is their shop steward. We are looking to have this discussion embraced. I often give help and advice to people who are not members of trade unions; therefore, I would not see this as being detrimental in any way to people who are not members of trade unions.

In Irish legislation on vicarious liability, there are good examples which show it is an employer's responsibility to stop an employee being discriminated against by colleagues, where the person is gay, a woman or a traveller, for example. The legislation is capable of understanding that there are 101 ways by which an employer can get his or her own back without the manager having to do it. It has in place a system that everybody understands, that the duty is on the employer to make sure colleagues treat a worker with respect and dignity. There are many ways by which an employer can get his own back without dismissing people. For example, if an accountant is stopped by his or her manager from ever attending a seminar ever again, this could be detrimental to his or her career.

Ms Phil Ní Shéaghdha

We are suggesting in the amendment that the Minister for Health cover areas such as the provision of public health care services. For example, an agency nurse who observes something and is wondering what to do next may consider he or she will not be assigned the next time if he or she raises the issue in-house. Therefore, there should be somebody in place with overall responsibility for the provision of the service - in this case, the Minister for Health where public funds are being used. There are examples where an authorised person can be appointed, similar to an ombudsman, for all types of industry. That is an alternative.

Chairman

The ICTU has tabled an amendment to take account of that issue and does so very neatly. I do not know what attitude the Minister will take to it, but the way head 7 is drafted means it only relates to disclosures made by a worker in a public body. The ICTU wants to extend the remit to include persons who work for employers who provide services for a public body.

Ms Phil Ní Shéaghdha

That is correct.

Chairman

That is the net difference.

Ms Phil Ní Shéaghdha

It is because section 9(a) of the Health Act will continue.

Chairman

It seems to make a good deal of sense. I congratulate the ICTU for its input on this issue. As we know, it extends back to 2007 because we were circulated with a paper at the time. It is an excellent survey of the issues surrounding whistleblowing, the international context and some of the related statutory regimes. It is a very helpful paper and I congratulate the ICTU on running a slide rule over the heads that have been published in the context of the policy positions adopted by the ICTU and outlined in the paper.

Interim relief in the employment context is a controversial and live issue. There are many circumstances where an employee is facing dismissal in circumstances that are egregious, to say the least, and do not have anything to do with whistleblowing. I am sure trade union officials and others have come across them, where a dismissal is so manifestly unfair as to not to be able to admit any other conclusion, but it is still a dismissal and the worker can only obtain relief post facto by going to the Employment Appeals Tribunal. There are very narrow exceptions where he or she might be able to go to court to secure an injunction, but we know how difficult and expensive that is. Why should interim relief only be introduced in this context? It seems that if it makes sense in this context, it probably makes sense in a number of other contexts in employment law also. For example, I am sure trade union officials would be surprised to find that they could seek interim relief under the Bill, but not in other areas in which the circumstances could be equally serious, if not much more unfair and damaging to the employee. The law takes the view that it is not consistent with the statutory context of tribunals that they provide interim relief. Does that mean, therefore, that we are talking about giving some jurisdiction to the courts? Should a person have to go to the courts rather than the tribunal? Can the delegates contemplate a rights commissioner granting interim relief?

The point about a code of practice was well made by Mr. Staunton. Codes of practice operate extremely well in all of these areas. They operate not just to deal with problems after they occur but also to create a new environment and a culture in which the kind of atmosphere in which people feel it is necessary to blow the whistle might be changed in order that there is an openness to enable people to speak up about things that are wrong in the workplace, from relatively minor matters to corruption and fraud. The culture of the workplace could be changed by there being a robust code of practice in place. The enduring protection would be very useful, whereby witnesses could speak about a protection that would extend beyond their employment. They would not be a marked man or woman when looking for work somewhere else.

I have a query about uncapped compensation. I am not sure whether it would ever be appropriate to have legislation in this area under which the compensation would be large. This is not a familiar concept in the employment area. There is always some measure on compensation. The point about victimisation was well made by Mr. Shields who said the legislation should take account of persons who have made a complaint or said they intend to do so. They should be protected.

Mr. Shields also asked whether the Bill would cover situations where an employer was threatening to penalise, even if he or she did not actually do so. I believe head 12 deals with this issue, although perhaps it is not sufficient. It is drafted as follows: "An employer shall not penalise or threaten penalisation against a worker"; therefore, it is at least contemplated in this provision.

Ms Esther Lynch

The interim relief measure is in place in the UK legislation protecting disclosures and whistleblowing. Given that the stated intention is for the Bill to follow closely the provisions in the United Kingdom, its omission from the general scheme is obvious and glaring. In other countries where this operates and in the United Kingdom, it is not the case that the employee says, "I must be kept on here." He or she has seven days in which to go to the equivalent of the rights commissioner - we will have the new reformed body - or whoever is the first instance body to put his or her case. This has been the subject of many appeals to courts of various levels, but the way in which it has been considered is: based on the evidence on that day, is it the case that keeping a person in his or her job is more likely to be a fair remedy than allowing a situation-----

Chairman

A balance of convenience-type test?

Ms Esther Lynch

Yes. I would be happy to send to the committee a summary of these cases because my colleagues in the TUC have done quite a bit of work on the issue. The Chairman is right; one accepts the unfairness of a situation where somebody has to bear the brunt of two or perhaps three years without a job. The opportunity for reinstatement offers a remedy. One is faced with bringing in witnesses to what happened three years down the line; as many of them will not even work in the place any more, one will have to find them. This is grossly unfair. Ideally, we want to send a message to employers that if a person comes forward and makes a report about wrong practice in an enterprise, they should not punish that person but welcome and reward him or her. What we are actually trying to do is to change the mindset of employers about this practice within the workplace and I recommend the code to the committee.

On the matter of uncapped damages, there are some statutes in which the time period is five years, not two, but the idea of damages is that one is put back in the position in which one would have been had one not suffered this unfair treatment. In the modern climate, how long is it, realistically, before a person gets a job at the same level he or she was at before he or she said there was fraud and crookery in the accounts department? In my heart, I cannot see that it would be two years. The purpose of uncapped damages is to allow a realistic estimation of what the person has actually suffered.

Mr. Matt Staunton

A nefarious employer, in a case of unfair dismissal, would say two years of social welfare payments was probably the maximum exposure. That is manageable in some cases for multinationals and others.

Ms Esther Lynch

They would prefer to pay it.

Mr. Matt Staunton

Sometimes, these are duty of care issues. There are well trodden paths to unlimited damages in such cases.

Chairman

We are talking about pain and suffering, if there was an injury. In some of the equality cases one is receiving compensation for having been discriminated against, but there is no reference to one's salary or loss of earnings, whereas in this case there is.

Mr. Matt Staunton

If one is a professional public servant - say, a principal officer in a Department - and one is fired, one is a marked man or woman. Where else can one work?

Deputy Peter Mathews

I thank the delegates for their very interesting presentations. I do not know whether these are questions or observations, or points they might like to develop.

When Mr. Shields mentioned the banking environment, I was thinking also of auditing and law firms, in which there are so-called Chinese walls and professional cultures. Professional cultures can often develop into brand cultures; this is a far distance from independent professionals such as medics or accountants. Once one puts a uniform on and becomes a partner in firm X, Y or Z, it can take huge courage, especially when the business is all about reviewing documentation and reports and forming opinions for the giving of advice, to give an opinion that does not fit the mindset of the firm. Mr. Patrick Honohan, in his report on the banking collapse, said in one paragraph out of 176 pages that it would have taken courage to persist in making certain points. That made me wonder what was the difference, in the professional world, between having the courage to do the right thing and not fearing the repercussions because that was one's duty. If one is a fireman, one does not say, "I think those flames are a bit hot; I will not go in there." It comes down to the fundamental obligations of people and firms in the various sectors. At Enron there was a conspiracy among professionals. The younger the people who come into the training programmes for these professions are, the more malleable they are and the more they can be formed by substandard cultures or cultures that become the property of the proprietary partners. We must guard against this. I do not know how one could specifically create templates for checking - like litmus paper - in firms. How can one gauge the climate? Does the paper go blue if one holds it in the air for an hour?

On the point about compensation, it is not a case of a cap on the amount of pay missed for three years but an indemnity for someone who has been let down. It is a question of trying to obtain a fair measurement of the degree to which he or she has been let down in his or her job, pay and prospects. There is an idea of giving all employees across the spectrum of workplaces a handbook or guide - not definitive but with maps of Dublin and Ireland and a checklist of general standards and behaviours. There is a joke about the observers in Sputnik who came back to Earth and said they had only seen two great landmarks: the Great Wall of China and the great Chinese wall in firm X, Y or Z in Dublin. We have to think about these issues because the big problems that led to the collapse were in those soft industries, by which I mean those which did not produce widgets, computers, pharmaceutical products or software programmes, in the areas of judgment and regulation. Banks judge assets and the funds used to create them. In medicine and hospitals in the provision of care there must be judgment.

These are thoughts for the delegates' consideration. They can shoot them down if they should be shot down.

Senator Aideen Hayden

That was an interesting and thought-provoking presentation. It behoves any legislative body to strike a balance between corporate security, proper regulation and worker protection. Given what has been said about the heads of the Bill, there is much to think about. It certainly struck a chord with me.

Interim relief is critical. One is never talking about people who are coming from positions of equal strength. There is, therefore, too much capacity in the corporate sector to see off any intruder.

I took on board what you said, Chairman, about existing employment law, applications to the courts, expense and so forth. Could it not be incorporated into the legislation that if an applicant has made a disclosure to a particular body, that body should apply to the courts for interim relief on behalf of the complainant. In other words, the duty to make the application for interim relief, where a prima facie case is established, should be on the body to whom the complaint is made rather than on the individual.

Deputy Mathews has already touched on the difficulty that can arise in a corporate culture. It is difficult to work with colleagues if one has acted, in their opinion, outside the box. It is extremely difficult to continue working in such a culture, even if one has been reinstated. Where interim relief is granted, there should be an onus on the employer to ensure that the employee is not discriminated against. Similarly, one can be hounded out by work colleagues who believe one has undermined the corporate ethos or the company's viability. A strong message needs to be sent out that being a whistleblower is a good thing and not to be despised by work colleagues. There is, unfortunately, a culture of contentment in some corporations.

Deputy Peter Mathews

Group think.

Senator Aideen Hayden

Yes, group think. It can be difficult for someone who steps outside the box. The person who undermines the group think might find it difficult to go to the pub on a Friday night with colleagues, for example. Aside from interim relief, there must be positive protection in the workplace for anyone who has made a complaint.

I agree that the two year cap is nonsensical in a situation where someone can suffer invidious discrimination as a result of being seen not to be a team player. Setting a limit is, in itself, a protection for the corporate world. Any compensation needs to be based on actual loss, which can be enormous. No one wants to walk away from a successful corporate career and into the abyss, where one might find employment in the voluntary sector. The losses can be enormous. It is not just about money. One can suffer reputational loss. Any compensation must be based, in so far as it is possible, on the actual loss someone suffers from the treatment he or she receives.

The presentation was thought provoking and contained plenty of good ideas. I would be happy to take them on board.

Ms Esther Lynch

I completely agree about corporate culture. These things are, very much, led from the top. A company whose chief executive wants to create a proper whistleblowing system and searches people out and encourages them to come forward will have a different culture from one where mere lip-service is paid to a code of practice. That would reinforce the genuine attempt by unions to be invited by employers to discuss a code of practice. The very discussion of a code of practice can get everyone talking about it and will sometimes unearth problems. One need only look at how similarly people in a company dress to see the effect of corporate culture on people's behaviour.

Mr. Matt Staunton

I represent workers in the airline industry, where safety whistleblowing charters are ingrained. If a safety issue is raised it is regarded as good stuff. The whistleblower is thanked and seen as a hero of the people. We would like to get whistleblowing in general into that space. The way to do that is to have a proper charter in every workplace so that each new employee sees it in the staff handbook when he or she joins the job. The roadmap to that ideal is the code of practice. It would fit down as the charter.

Deputy Peter Mathews

It could be called the honesty handbook rather than the whistleblower handbook. Honest is something we all try to be. It is that decision making compass in us that says, when we are not sure about something, "What would my Mum think?". That is usually a good litmus test.

Ms Phil Ní Shéaghdha

We must emphasise the idea of the one-to-one employment relationship. Corporate think might exist but it might be set by the employer. It might require an outside person coming in to see the need to whistleblow. In the private nursing-home sector, which is run for profit, one may need an outsider to realise that residents are dependent people who have no advocates and that someone needs to raise an issue externally.

Chairman

We will shortly meet the National Union of Journalists, so we will wrap up this section of the meeting.

I thank the contributors, Mr. Shields, Mr. Staunton, Ms Lynch and Ms Ní Shéaghdha. Ms Lynch, you mentioned some documentation that you have. It would be very useful if you would send it the clerk of the committee. We will incorporate all the information we have with these hearings, which are in public and of which there will be a transcript. We will make a report to the Minister by mid-June on the heads of the Bill that have been published.

This has been a helpful meeting, and I thank you again.

Sitting suspended at 4.28 p.m. and resumed at 4.29 p.m.

Chairman

I welcome Mr. Gerry Curran, cathaoirleach of the executive council of the National Union of Journalists, and Mr. Séamus Dooley, Irish secretary of the National Union of Journalists.

Briefing documents have been circulated by e-mail in advance of this afternoon's presentation. Mr. Curran will make some opening remarks, followed by Mr. Dooley and then by a question and answer session.

I remind colleagues, witnesses, those in the Public Gallery and everyone in the room that mobile phones should be switched off and remain switched off for the duration of the meeting. I advise witnesses that, by virtue of section 17(2)(l) of the Defamation Act 2009, you are protected by absolute privilege in respect of your evidence to the committee. If you are directed by the committee to cease giving evidence on a particular matter and you, nevertheless, continue to do so, you are entitled thereafter only to qualified privilege in respect of your evidence. Only evidence connected with the subject matter of these proceedings is to be given and you are asked to respect the parliamentary practice to the effect that, where possible, you should not criticise or make charges against any person, persons or entity, by name or in such as way as to make him, her or it identifiable. Members are reminded of the long-standing parliamentary practice that they should not comment on, criticise or make charges against a person outside the House or an official by name or in such a way as to make him or her identifiable.

Mr. Gerry Curran

The National Union of Journalists welcomes the publication of the draft heads of the general scheme of the protected disclosures in the public interest Bill 2012. As the union representing professional journalists in Ireland and the United Kingdom, we strongly support the principles behind this legislation and we are grateful for the opportunity afforded by the committee to contribute to the consultation process at this early stage. The union has long called for a legal framework to protect whistleblowers against punishment for disclosing information which is in the public interest. That public interest is best served where employers are enabled and empowered to blow the whistle on wrongdoing, illegality and inappropriate behaviour, no matter where it happens. This Bill is especially significant because it represents a shift in the culture of administration in Ireland. It represents a move away from the culture of secrecy which has served only to protect wrongdoers, has placed a premium on compliance and silence, and encouraged the blind eye to be given to corruption and an abuse of power and authority in the public and private sectors.

It has been a long journey to this point. The NUJ supported the initiative by Deputy Pat Rabbitte when moving his Whistleblowers Protection Bill in 1999. It is to be regretted that this Bill was left to languish until 2006 when the then Government removed it from the agenda without bringing forward alternative legislation. Open, honest organisations in the public and private sectors have nothing to fear from legislation governing transparency in the workplace. In this regard, we reject the notion that whistleblower legislation poses a threat to business or that multinational companies would view whistleblower legislation as a disincentive to investing in Ireland. Those who brief privately that this is the case are simply wrong. On the contrary, Ireland's reputation can only be enhanced by a culture which recognises the value of honesty, integrity and truth as being central to business.

As an affiliate body to the Irish Congress of Trade Unions, the NUJ shares many of the concerns of congress and asks the committee to consider the issues raised by us. Our experience chimes with those of our sister unions in both the public and private sectors. It would be wrong to assume this Bill on its own could or will transform the culture of secrecy. The NUJ views the Bill from the perspective of journalists, those who are provided with the privileged platform which enables them to blow the whistle or to give voice to whistleblowers in either print or broadcast or any form of new media.

My colleague, Séamus Dooley, the Irish secretary of the NUJ, will draw attention to other reforms which we believe are also necessary if we are to transform the way we, as a nation, conduct our business. He will outline specific interests of concern to the NUJ.

Chairman

I thank Mr. Curran and I know he is also accompanied by Mr. Brady whom I welcome to the meeting.

Mr. Séamus Dooley

I join Mr. Gerry Curran, the cathaoirleach, in thanking the Chairman and members of the committee for the invitation to address the committee. I am doubly privileged and I declare what is not so much a conflict of interest as a direct involvement. I am a member of the executive of the Irish Congress of Trade Unions and I was directly involved with Ms Lynch in drafting the submission to which the Chairman referred and also the earlier submissions. Ms Lynch had done a significant amount of work in this area, and as a member of the executive, I take this opportunity to acknowledge her work.

I am aware the Chairman, Deputy White, has a long and abiding interest in the area of transparency, going back to the Let in the Light campaign, with which this union was proudly associated, as was Mr. Brady. It will, therefore, come as no surprise to the Chairman to know that the NUJ regards this Bill as one of a set of measures needed to create a new culture of transparency in society by replacing one of the unfortunate legacies of the traditional Whitehall approach, namely, secrecy, with a culture of open government and open governance across the public and private sectors, including the media and the trade union movement.

It may be worth prefacing our brief contribution with a quote from an unlikely source. "If people don't know what you're doing, they don't know what you're doing wrong." This was Sir Humphrey Appleby's advice against open government in "Yes, Minister". He appreciated the risks associated with governing behind a pane of glass. The primary function of this Bill is to provide appropriate measures for a whistleblower to disclose information through agreed channels. The Bill adopts a stepped approach to disclosure. If I have a reservation about the Bill, it concerns the ability of employers to circumvent legislation and the requirement of due process. This is a factor with which, as a working union official, I am all too familiar. This is especially the case in non-union workplaces.

The NUJ in the UK is currently a core participant in the Leveson inquiry and the general secretary, Michelle Stanistreet, has made the point that in News International, for example, whistleblowing by journalists was impeded by the prevailing culture. I have no evidence the practices revealed by the Leveson inquiry are widespread in Ireland but it is worth saying, as secretary of the NUJ in Ireland, that whistleblower protection would certainly aid any journalist concerned about unethical or inappropriate behaviour in his or her workplace in this country. There are workplaces where the union is not recognised, where we are denied the right of collective representation and where issues arise as a result.

As regards the profession of journalism, head No. 8 of the general scheme is of particular relevance to the NUJ and it is this section of the Bill I wish to address. Many of our concerns have been addressed by the ICTU and I do not wish to duplicate the previous submission. Head No. 8 is described in the explanatory note as dealing with disclosure to the media. It means disclosure must be done in good faith which excludes personal gain. In addition, one of three alternative tests must be satisfied before protected status is granted to the whistleblower's disclosure. The NUJ would like to see explicit reference to disclosure to the media in the Bill and I would welcome some thought and reflection as to how this might be done. Currently, disclosure is referred to in an explanatory note. The union is uncertain as to the value of the right of protection to an individual who decides to go to the media. In general, a whistleblower will speak to a journalist in confidence, and this may be anonymously. It is for the journalist to interrogate the source and to ensure the story stands up. A journalist faced with a story should always check the veracity of the source and must use the guiding principles of journalism before publishing a story based on a leak. Establishing the veracity of a source means confirming the motivation of any source, including that of a whistleblower.

The NUJ code of conduct informs the work of NUJ members. Clause (7) of the code states a journalist should protect the identity of sources who supply information in confidence and any material gathered in the course of his or her work. Principle No. 6 of the Press Council code of practice for newspapers and periodicals states: "Journalists shall protect confidential sources of information." The issue of disclosure only arises, therefore, when a whistleblower subsequently reveals to his or her employer that he or she was the source of information published by the media or where, possibly as a result of an investigation, the employer determines an individual whistleblower was the source of published material. In those circumstances, a journalist faced with a request to co-operate with such an investigation is required to refuse on the basis the journalist is obliged to protect a confidential source. That right has been tested in law.

I draw the attention of the committee to the definitive ruling of the European Court of Human Rights in the case of Goodwin v. the United Kingdom from 1996 when the NUJ supported the right of a member, Bill Goodwin, to protect confidential sources of commercially sensitive information. That case concerned commercial information of a highly confidential and secret character concerning the corporate plan for the refinancing of an important company. It was claimed that disclosure would threaten the business and the livelihood of its employees. The information was communicated to Mr. Goodwin by a person who, though known to the journalist, wished to remain anonymous. The company in question succeeded in securing an interim injunction restraining publication, having learned of the disclosure of information when the journalist contacted it to make inquiries. The fact of this injunction was material to the decision of the court. The English courts, all the way up to the House of Lords, made orders requiring the journalist to disclose his source, but he refused to do so and the House of Lords fined him £5,000 for contempt of court. In its judgment on the journalist’s case, the European Court of Human Rights had this to say about journalistic sources:

Protection of journalistic sources is one of the basic conditions for press freedom, as is reflected in the laws and the professional codes of conduct in a number of Contracting States and is affirmed in several international instruments on journalistic freedoms. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest.

In his judgment in the Supreme Court action against the Mahon tribunal Mr. Justice Fennelly drew upon the Goodwin case in upholding the appeal by NUJ members Geraldine Kennedy and Colm Keena against a High Court order in respect of information supplied by an anonymous source, quoting in full the above extract and laying particular emphasis on the phrase "overriding requirement in the public interest".

There is a strong case for legislation governing the right of journalists to protect confidential sources of information in the public interest, consistent with the provisions of the European Convention on Human Rights and reflecting the view of the Supreme Court and the European Court of Human Rights. This may require separate legislation, since the general scheme of the protected disclosure in the public interest Bill makes no provision for anonymity and, moreover, specifically excludes protection for those who make disclosure on the basis of anonymity. Nevertheless, we look forward to publication of the Bill, as we do to the repeal of the Freedom of Information (Amendment) Act 2003, both of which are included in the programme for Government. The extension of freedom of information provisions to include agencies such as the National Asset Management Agency and the restoration of the provisions of the original 1997 Act would significantly enhance our system of public administration. Freedom of information is a matter not only of legislative reform but is also reflective of the ethos of Government, an ethos we hope will be reflected in the protected disclosure in the public interest Bill when it finally comes before Parliament.

Deputy Sean Fleming

I thank the delegates for their presentations. Will Mr. Dooley elaborate on his concerns about the ability of some employers to circumvent the requirement of due process and thus frustrate the process? Although it is not directly related to the legislation at hand but more a reflection on a broader culture, will he comment further on his claim that the right to collective representation has been refused to staff in several media organisations? He concluded his statement by welcoming the bringing forward of the protected disclosure in the public interest Bill and indicating that he looked forward to the repeal of the Freedom of Information (Amendment) Act 2003. Which particular provisions of that legislation are causing difficulty for journalists in obtaining information? Although this issue is not specific to the legislation we are discussing, its consideration would inform our understanding of the broader issues involved.

Deputy Kevin Humphreys

Mr. Dooley talked about the protection of journalists' sources as being one of the basic conditions of press freedom. A recent article in The Guardian included a claim by the deputy editor of the Evening Herald that the Garda Síochána was more interested in discovering journalists’ sources than in pursuing the criminals who were the subject of their reports. Does Mr. Dooley have this article in mind in terms of some of the amendments to which he referred? I agree with Deputy Peter Mathews that the word “whistleblower” is not ideal in that it seems to have an element of labelling about it.

Deputy Peter Mathews

There is something pejorative about it.

Deputy Kevin Humphreys

Yes. The article in The Guardian was a very disturbing reflection of what was going on in this country, as was the recent discussion on “Drivetime”. Does Mr. Dooley have anything to add to what he said in his presentation in this regard?

Chairman

Do Mr. Dooley's concerns relate to head 8 which, although there is no specific reference therein, is related to the media? As he rightly observed, the explanatory note makes it clear that this head is relevant to disclosure to the media, but the contents of the head are not explicit in that regard. It might be better not to have this explicitly stated, otherwise one is into definitions of the media and so on. If Mr. Dooley is of the view that head 8 does not sufficiently protect disclosures to the media, I would be interested to hear him expand further. We would certainly be open to examining that point and including any recommendations we might have in our report to the Minister. However, I caution against going down the road of seeking to define the media - especially now, in the era of social media when such a definition must be particularly difficult to agree. We might end up in even greater difficulties if we were to attempt to do this.

Deputy Peter Mathews

May I make an observation on that point?

Chairman

I have several more points to make, after which I will allow the Deputy to comment.

On the protection of sources, this is an issue that is related but not absolutely germane to the provisions of the Bill. If Mr. Dooley has another view in this regard, will he explain it? It is unquestionably an extremely important issue, although one might wonder whether there is not a greater safeguard for the principle of the protection of journalists' sources in the Kennedy and Keena judgment than in anything that might be produced by way of legislation in the Oireachtas. I am, of course, saying this tongue in cheek. It is a very strong judgment which, as Mr. Dooley observed, rightly draws on the jurisprudence of the European Court of Human Rights. I do not know whether he is still advocating legislation should be prepared in this regard, but I was anxious to offer that cautionary word.

It may be the case that the source a journalist is correctly protecting, in accordance with his or her professional code, is a whistleblower. Although it is a slightly contorted proposition, it could well arise that such a person who wished to rely on the provisions of head 8 might be somehow publicly identified, despite the assurance of anonymity. In some employments, for example, certain information could only have come from a particular individual who might be apprehensive about being penalised subsequently. Such a person may wish to rely on head 8 and, paradoxically, waive his or her entitlement to anonymity by allowing a journalist to reveal his or her identity. I presume that in such circumstances the code would allow the journalist to reveal the individual's identity once he or she wanted to waive his or her right.

Mr. Séamus Dooley

Yes. Specifically in respect of that right, the obligation under the code is to protect confidential sources of information.

Chairman

Yes.

Mr. Séamus Dooley

If someone waives his or her right to anonymity, then he or she ceases to be anonymous. In view of the time constraints which apply, I will take the Chairman up on his suggestion that we follow up on the matter of head 8 at a later date. Our concern is that when people refer to whistleblower's legislation, they frequently think of it in terms of it being a media law. In fact, such legislation primarily relates to the protection of employees. That was our concern in respect of this matter.

I agree with the Chairman in respect of the Mahon tribunal v. Kennedy and Keena. The judgment handed down in that case was extremely strong. To return to Deputy Kevin Humphreys point on the Garda, however, there is not much point in winning a Supreme Court case and having a judgment handed down which indicates that one has a right to protect confidential sources of information if members of the unions which represent journalists are being dragged in by the cops on a weekly basis. This is particularly true as the latter know bloody well that journalists are going to say that they cannot assist them with their investigations because they will not reveal their sources. There is a soap opera taking place at present - certainly on a monthly basis and sometimes on a weekly one - whereby gardaí either visit newsrooms or invite journalists to attend for questioning. On such occasions journalists are asked to present notebooks or reveal sources. All we can do in such circumstances is invoke the judgments in the Kennedy and Keena and Goodwin cases. However, that is not much good. This is why there must be a recognition that when one wins a right in the Supreme Court or the European Court of Justice, then it is a waste of everyone’s time to pursue certain matters. Members of the force are aware that there is no point in bringing in journalists and asking them to reveal the identities of confidential sources of information. If the Garda wants to take the next step, it is open to it to bring matters of this nature before the courts and we will defend them. There is a bit of a merry dance going on at present.

Deputy Kevin Humphreys

Is that just the most recent development in respect of this issue or is it more widespread?

Mr. Séamus Dooley

It is an ongoing issue. I would not want to overstate the position but I am equally aware that at this stage journalists just tell the Garda that they will not reveal their sources and they do not necessarily inform me of that fact. The article in The Guardian newspaper, which was published quite recently, has not been refuted by anyone. There is a very solid basis for this article. I was contacted by a number of journalists, particularly those who work in the area of security, following the publication of the article and they informed me that what was described is the reality.

Chairman

Perhaps Mr. Dooley might deal with the other points that were raised.

Mr. Séamus Dooley

The issue raised by Deputy Fleming actually relates to his previous point with regard to trade union recognition. At present, there is no right to collective representation. Mindful of the caution issued by the Chairman in respect of media organisations, I am not going to name the organisations or publications involved. The only one I will name is the News of the World, which no longer exists. We were denied the right to provide collective representation for staff at that newspaper. When it ceased publication, we represented some of the staff who, somewhat like cardinals in pectore, were secret members of the NUJ. These individuals were not allowed to reveal their membership and we were obliged to negotiate on each individual’s behalf in order to obtain his or her severance rights.

I recall informing one person from News International that a breach of the law had occurred and that the next step would be to approach the Labour Relations Commission or the Labour Court. That individual, a UK-based personnel manager, told me that News International did not recognise the Labour Court. I jokingly stated that used to be our line and I was then obliged to explain what I meant. News International did not appreciate the fact that when a company is trading in Ireland, it is expected to adhere to our industrial norms.

The contrast would be that in the case of, for example, the Irish Independent or The Irish Times, with which we regularly have difficulties, the NUJ code of conduct forms part of a person’s contract of employment. If one does not have the right to go into a newsroom in order to represent someone, one cannot even have the argument. This gives rise to problems where an aggressive news editor - such individuals do exist - and where there is no collective representation. In such circumstances, there is no opportunity to state “I do not believe that is ethical behaviour and I do not believe it conforms with the professional norms to which we, as working journalists, should be adhering.” That happens in newsrooms in this town. In that climate, it is very difficult to see the value of whistleblower legislation.

Chairman

Are there any other issues?

Deputy Peter Mathews

I again thank our guests for their illuminating and instructive presentations. It is probably a reality of life that some people will make contact with journalists and prefer to remain anonymous because they are of the view that this is the only way in which a serious problem that could prove to be expensive in the context of pursuing the legal route or whatever can be dealt with. Those to whom I refer are concerned as a result of the fact that they believe the matter will be buried under the weight of the costs involved or that their views will not be listened to at the relevant forum. They know that journalists and other members of the media will see to it that a matter gets immediate attention. In addition, they believe the public has an instinct in the context of what is fair or unfair. Individuals such as those to whom I refer take the view that they will achieve results much more quickly if they take this route rather than going down the labyrinthine avenues relating to other forums.

Deputy Sean Fleming

Mr. Dooley stated that he looks forward to the repeal of certain sections of the freedom of information legislation. Will he indicate the specific sections?

Mr. Séamus Dooley

I recall Deputy Fleming's important, if futile, efforts in the context of supporting amendments to the most recent legislation in this area. The Information Commissioner has raised a number of issues in respect of charges and appeal costs. From my point of view, the issue relating to the Garda Síochána still exists. The most crucial and relevant issue for the taxpayer at present is the veil of secrecy which surrounds NAMA. While it is clear that there are areas of sensitivity around the operations of NAMA, there is no justification for it being excluded from the scope of the Act. Since we are paying for it, we should be in a position to know the rationale and reasons behind this organisation's decisions. There are a number of inclusions we would like to see being made. We would certainly like the issue of charges to be revisited.

Deputy Peter Mathews

What about the distribution of professional work?

Mr. Séamus Dooley

That, in a sense, is one of the issues to which I am referring. If an organisation is spending public money on contracts, it is in the public interest for people to know why such money is being spent in a particular way and also how decisions are reached. The positive effect of the Freedom of Information Act has been that we have an informed citizenry, the members of which now know how decisions are made. The better the legislation, the better citizens are informed.

Chairman

The Government has signalled its intention to amend the freedom of information legislation.

Mr. Séamus Dooley

Absolutely.

Chairman

That is in order to reverse, to some extent, the changes that were previously made. I imagine that this is a matter with which the committee will deal in due course.

Mr. Gerry Curran

Deputy Mathews stated that people come to journalists because it is easier for them to do so.

Deputy Peter Mathews

Journalists will act as their agents.

Mr. Gerry Curran

If this legislation under discussion does anything, it will create a culture whereby people believe they have permission to be honest in circumstances other than those relating to meetings with journalists. If it is successful, then the legislation should do this. It should provide a milieu within which people feel protected and in which they have permission to be honest.

Chairman

That is a very weighty insight. I thank our guests for attending and for providing us with some extremely helpful presentations, which will feed into both our consideration of this issue and our report to the Minister in due course.

The joint committee adjourned at 5 p.m. sine die.