Protected Disclosures Bill 2013: Report and Final Stages

I welcome the Minister for Public Expenditure and Reform, Deputy Brendan Howlin. I remind Senators that, apart from the Senator moving an amendment, they may only speak once on an amendment on Report Stage and that amendments must be seconded.

I move amendment No. 1:

In page 5, line 5, to delete "TO MAKE" and substitute "TO PROMOTE THE PUBLIC INTEREST BY MAKING".

I welcome the Minister. The last time we met on the Bill was early in October, even though he has been in the House on other issues. I simply note that it was a while ago.

On Committee Stage we proposed an amendment to the Long Title to assist in the public understanding of the aim of the Bill. The Minister rejected our amendment because he said it could have the unintended effect of limiting the scope of the legislation and we do not want that either. He said he would take another look at the issue of the Title and asked me to do so also. I said I would try to come up with something better. Amendment No. 1 represents an effort to clarify the purpose of the Bill in the Long Title. We still feel the current Title does not give much of a sense of the purpose of the Bill to encourage transparency, and tackle maladministration and corruption, which is why we want to have a law to protect whistleblowers. This is why we have proposed the insertion of "TO PROMOTE THE PUBLIC INTEREST BY MAKING" as a way of trying to note what the Bill is about. We are making the point that we protect the whistleblower in order to protect the public interest. In other words, the primary aim is not so much the protection of whistleblowers but to promote the public interest and in doing so we need to protect the whistleblower.

The Title of the UK Act is similarly vague. However, for example, the New Zealand Act has a slightly different and better formulation in stating that the Act is to promote the public interest. Similarly, the Australian Public Interest Disclosure Act 2013 provides that the Act is to facilitate disclosure and investigation of wrongdoing, etc., in the Commonwealth public sector. These both focus on the promotion of public interest, which is proactive rather than the protection of the whistleblower, which one could regard as reactive. I believe the amendment makes it clearer that the legislation is to actively promote the public interest while protecting those who act to do so by whistleblowing.

I second the amendment. The Senator has made a very strong argument in favour of it and I urge the Minister to accept it.

I am grateful to Senator Katherine Zappone and her colleagues for submitting the amendment. I listened very carefully to the rationale presented on Committee Stage.

I know the Minister did.

The emphasis on the public interest as proposed in the amendment is exactly my intention in advancing the legislation. There is staidness with Long Titles. Having had our discussion on Committee Stage, I consulted officials in the Office of the Parliamentary Counsel to see if they could facilitate this change. However, they regard this as declaratory, almost promotional and outside what is the narrow scope of the Long Title, which is defined very clearly in our legislative process. I agree entirely that other jurisdictions have much more latitude with their Long Titles. I would have concerns over some, including the US Patriot Act, which many in the United States would regard as not being very patriotic. I should not have allowed myself to digress into these matters.

In some jurisdictions the Long Title may be used at least to mask the intention of the contents of the Bill. We are very confined by tradition and the advice of the Office of the Parliamentary Counsel that we do not state the purpose of the Bill in the Long Title. It simply encompasses for the reader the contents of the legislation. Despite my enthusiasm to accept the Senator's proposal, the principle of which I agree with, the strong advice of the Office of the Parliamentary Counsel to me is not to accept it because it would do damage to the tradition of confining the Long Title to the contents of the Bill simple.

I thank the Minister. I appreciate those comments and his support for the principle. It is a learning curve for me.

Amendment, by leave, withdrawn.

Amendments Nos. 2, 3 and 19 are related and may be discussed together.

I move amendment No. 2:

In page 5, line 20, to delete “the period of 5 years” and substitute “each of the periods of 2 years and five years”.

I hope Senator Katherine Zappone will reciprocate in due course and second the amendment because my colleagues are otherwise engaged. In fairness, the lobby for immigration reform is meeting Members in the House today and I gather that is where many of my colleagues have gone.

I will not delay the debate. We have had the discussion already and I am grateful to those in the Bills Office for their input. The Minister may recall that I had tabled these amendments in on Committee Stage, but as I was somewhat late, I decided to treat them as Report Stage amendments.

Amendment No. 19 is Senator Katherine Zappone's amendment but the purpose of my amendments is to have a more frequent study or review. The review period of five years is perhaps somewhat long. I am giving the Minister an opportunity to reconsider the five year period and to consider review periods of two years and five years. I understand the need to have a somewhat longer period than one might normally have. I presume there will not be a significant amount of protected disclosures made. However, I believe the five year period is somewhat too long.

I second the amendment. I will speak to my amendment. It is within the same content issue that we are discussing. What is the best way to ensure we provide the best evaluation and that the law works? I realise the Minister is keen on that. The period is important but the Minister will recall that we moved a similar amendment on Committee Stage. We suggested the Standards in Public Office Commission would oversee the effectiveness of the legislation. The Minister rejected that, which was fair enough, but he indicated an openness for the Oireachtas to have a role in this regard.

My amendment proposes that the Department of Public Expenditure and Reform receives notification of all whistleblowing within public bodies over a period and that this would then be reported to the designated Oireachtas committee. This serves the objective that systemic issues are identified. I know the Minister is keen to address this issue and, in doing so, more fundamental public reform will take place. The Minister indicated on Committee Stage that it could be reported to the Joint Committee on Public Service Oversight and Petitions.

Each of amendments Nos. 2, 3 and 19 proposes a detailed oversight role for the operation of the legislation to be given to me as Minister for Public Expenditure and Reform. I will address each of the amendments. As I indicated in our discussions on Committee Stage, I believe strongly that it is important to revisit the legislation periodically to see whether it is working. However, we need to have sufficient data at the time to make a reasoned and sound evaluation.

As Senator Thomas Byrne has acknowledged, this legislation will not be the norm. It will cover a variety of different circumstances and a variety of workplaces. I do not believe there will be a great throng of cases to be reviewed. We must consider due process as well because people have to go through the labour relations machinery when it comes to these things. It would be problematic to have within a year or two years a completed process. That is my judgment on it and that is why, having thought on it good deal, we will have a better snapshot of these processes after five years. One can imagine that it would be traumatic enough for the whistleblowers who had to resort to this and, if so, they may well be in the middle of a process 12 months or two years from now.

A new procedure has been adopted by the Oireachtas relating to post-enactment review of legislation. Whatever the case, this legislation, once it is enacted, will be subject to the new Oireachtas procedures. As Minister, I will be obliged to report to the House on the operation of the Bill in 12 months time. Under the new procedures, 12 months following the enactment of a Bill, except for the Finance Bill and the Appropriation Bill, the relevant Minister must lay a report before the Dáil which reviews the functioning of the Act. I am unsure whether there are similar guidelines in this House, but, if not, it should be before both Houses. Committees are empowered, including the committee referenced by Senator Katherine Zappone, to require the Minister to attend a committee meeting to discuss the report. That will happen in any event in all legislation as a matter of course from now on.

We are going to have a rather more tentative reporting of whether everything is in place, whether the Labour Relations Commission guidelines have been circulated properly, whether everyone is aware of them, what the mechanisms are for promulgation by the Irish Congress of Trade Unions and employers organisations and whether each line Department got its code of conduct and so on. That will be more structural and functional. What I envisage in my review after five years is far more content focused. It will relate to how the legislation is working. The structure may be in place but the question will be whether it is effective in doing the job that we intend it to do.

There will be a duality of analysis. The review, post 12 months, will be required under the Oireachtas procedures and this will meet some of the requirements of the Deputies' amendments. Then, the five year proper root and branch analysis which I propose to be carried out by my Department will meet the longer term more in-depth analysis that should be carried out also.

Amendment, by leave, withdrawn.
Amendment No. 3 not moved.

I move amendment No. 4:

In page 7, between lines 22 and 23, to insert the following:

“(j) an educational establishment.”.

I wondered when I tabled this amendment whether other types of educational establishments defined in the Act already should be considered public bodies within the definition. Institutions of higher education are included but schools etc. are not. I am unsure of the Minister's views on it.

I second the amendment.

The issue is the definition of a public body. The amendment proposed by Senator Thomas Byrne refers to an educational establishment, which, clearly, will capture many things that are not public-----

It is defined in the Act.

The term "educational establishment" would cover institutions that are clearly not public bodies, for example, private language schools, private third level colleges and other institutes that are not public bodies. I am keen to meet the objective of Senator Thomas Byrne. Once this definition is inserted any institution captured under the definition of a public body would be required to produce guidelines.

As the overarching body, the Department of Education and Skills will produce guidelines which will impact on all schools and all schools will be expected to adopt them. As I have said, a code of conduct will be developed by the Labour Relations Commission. That will be promulgated and will impact on the guidelines issued to all State agencies and all bodies in receipt of State funding.

I am satisfied with that response. I knew about the Labour Relations Commission involvement and I am pleased to hear that the Department of Education and Skills will be involved also. That is important because the education system is a major part of the State and there is occasionally potential for wrongdoing in the educational system. We saw in the House when disclosures were made about wrongdoing in a particular school. I was pleased to hear what the Minister said and he has answered the point.

Amendment, by leave, withdrawn.

I move amendment No. 5:

In page 8, between lines 14 and 15, to insert the following:

“(e) works on a voluntary basis, as a volunteer for no pay,”.

I have tabled my amendment in order to include volunteers in the legislation. When I spoke on Committee Stage, I was particularly thinking of charitable organisations which might need protected disclosures. They may have volunteers who are effectively workers that are not being paid and they may have other consequences. I accept that the legislation relates to employment in many ways because it outlines how to deal with employees, but it can also have serious consequences. The issue of volunteers has not received the attention it deserves and the legislation could be particularly relevant for charitable bodies.

I second the amendment.

I thank Senator Thomas Byrne. The issue was raised very well on Committee Stage. I have reflected further and received further advices on the matter. I referred to the importance of an institutional or employment connection between the whistleblower and the institution because the remedies relate to employment. I am now advised that the question has been reviewed extensively at international level. I am further advised that there is a strong consensus among experts that whistleblowing protection should not extend beyond the basis of the workplace.

The reasons for the conclusion were examined in detail on pages 11 to 14, inclusive, of the Regulatory Impact Analysis that I published alongside the Bill. I can go them in some detail if Members are so minded. In short, two reasons were advanced by international experts in support of the position. Due to their employment role within an organisation, whistleblowers have access to information that may tend to show wrongdoing that would not be available to persons outside of the workplace. Due to their employment status and the risk of sanctions from breaching the duty of confidentiality owed to an employer, employees who make a protected disclosure may require specific legal protection against reprisals in order to encourage them to come forward. Other complainants, who are members of the public generally, and have the same access to information insights do not usually need the same level of legislative protection before they make reports of wrongdoing because they are not normally subject to workplace restrictions such as confidentiality, contractual arrangements or anything else. They are citizens. First, if citizens see wrongdoing there is no impediment to them reporting. Second, no sanction can be taken against them by an employer. That view has been presented to us and I have rechecked to make sure that we are robust in terms of international best practice.

I am satisfied with the Minister's response and acknowledge that the matter was dealt with in the Regulatory Impact Analysis. It is important to highlight that protected disclosure may be an issue. Having listened to the Minister's response I have decided to withdraw my amendment.

Amendment, by leave, withdrawn.

Amendment No. 6 is in the name of Senators Thomas Byrne, Averil Power and others.

I move amendment No. 6:

In page 8, between lines 26 and 27, to insert the following:

“(iv) any office holder of state under the Constitution of Ireland or member of Dáil Éireann or Seanad Éireann,”.

I do not expect the Minister to accept my amendment and shall not press it. However, I tabled my amendment because I wanted to highlight an issue. The Bill is about employment relations. My amendment does not cover every aspect that I wanted it to cover. There may be consequences for people involved in the political process who highlight a wrongdoing that may not necessarily be described in the employment relationship, for example, if a councillor or a Member of the Oireachtas reports corruption. The amendment does not cover councillors but it is that type of disclosure that is not protected by the legislation. I am conscious that the Bill is effectively employment legislation but it does not do anything to protect a councillor or State official who will face serious consequences if they highlight wrongdoing.

Back in the times that we read about in tribunal reports - thank God, that was long before my time - politicians who spoke against corruption faced serious consequences. One person got physically assaulted at a council meeting for highlighting bribery. I tabled my amendment to highlight the issue. Perhaps we can deal with the matter on another day as it is not really an issue for employment. However, I still think that if a person elected to public office wishes to report wrongdoing that they are not protected against a dominant political system.

I second the amendment and support the fine reasoning behind it.

The effect of the amendment is to include officeholders and Members of Dáil Éireann and Seanad Éireann as workers under the legislation. That is its import and intention. In considering the amendment, I believe it is worthwhile to take a step back and reflect briefly on the fundamental objectives of the legislation which, as Senator Thomas Byrne has said, is to safeguard workers in the workplace. Councillors would not be covered by the amendment and, therefore, I shall just deal with officeholders and Members of these Houses. As a constitutional privilege is available to Members of the Oireachtas in respect of utterances in the Houses, the outing of wrongdoing is uniquely protected to a degree that no other worker in the State would have. Let me clarify that officeholders are as defined in the Ethics in Public Office Act 1995 which states:

(a) a person who is a Minister of the Government or a Minister of State,

(b) a member who holds the office of Attorney General,

(c) a person who is Chairman or Deputy Chairman of Dáil Éireann or Chairman or Deputy Chairman of Seanad Éireann, and

(d) a person who holds—

(i) the office of chairman of a committee of either House .... , or

(ii) the office of chairman of a joint committee of both Houses,

or the office of chairman of a joint committee not currently designated as officeholders by resolution of the Houses.

These are very privileged people. I think they do not need workers' protection because I cannot envisage a situation where the employment rights of a Member of the Oireachtas or the Government would be affected by whistleblowing. One might be dumped by the electorate but I do not think this legislation can protect against that happening.

Bring forward an amendment.

A Member could go to the unfair dismissals tribunal in that instance and many a person would feel that he or she ought to do so.

We do not have the benefit of security of tenure.

Alas, we have the most insecure of tenure. There is no contract of indefinite duration; all of our contracts are of very definite and finite duration in these Houses. I do not think that it is necessary to capture such people as workers under the legislation.

I wholly accept the Minister's reasoning. I tabled my amendment, even though I knew he would respond in the way he has and I did not expect him to accept the amendment. I shall outline the simple purpose behind it. Despite all of the tribunals, there is no protection afforded to an elected person who discovers wrongdoing that might disadvantage his or her party and, as a consequence, his or her party might impose sanctions on that person. We have seen Members suffer the consequences for voting against their party on particular issues. If a wrongdoing is discovered in the future - we have seen plenty of wrongdoing in the past - who is to say that it will not happen again? Of course, it will happen again and there is no protection. I do not know how we can provide protection and I accept that it cannot be provided as part of the legislation. However, we should be conscious of the issue.

Amendment, by leave, withdrawn.

Amendment No. 7 is in the names of Senator Thomas Byrne and others. Amendments Nos. 7 to 9, inclusive, are related and may be discussed together.

I move amendment No. 7:

In page 9, line 21, to delete “other public money” and substitute the following:

“other public money or any money belonging to a charity registered or operating in the State”.

I need one minute. I suggest Senator Katherine Zappone skip ahead and make her contribution.

The Senator can second her amendment. He can move the amendment and speak later.

I shall speak as the seconder of Senator Katherine Zappone's next amendment. She tabled amendment No. 9.

Senator Katherine Zappone's amendment cannot be moved until the end.

She can discuss and scrutinise it now.

I second amendment No. 7. My amendment is on the definition of wrongdoing. Even though I noted the Minister's reasoning for the definition, from the last time we debated it here I still think that my amendment is relevant and valid. He argued that the more one specified the definition then the more it was weakened. The proposed amendment is very similar to two preceding subsections, section 5(3)(f) and (g) which state:

(f) that an unlawful or otherwise improper use of funds or resources of a public body .... has occurred, ...

(g) that an act or omission by or on behalf of a public body is oppressive, .....

There is a broad range of categories covered in both subsections through the use of the words "improper use of funds or resources of a public body." However, they do not cover the class of a public official but only a public body. Those sections of the law are also additions and are part of the UK law. In addition, it could be argued - contrary to what the Minister put forward - that the inclusion of the words "improper use of funds" and the specific "act or omission" listed in paragraphs (f) and (g) could give rise to an interpretation that undue influence has been explicitly excluded from the legislation, given that the legislation troubles to mention the other elements explicitly.

The OECD toolkit explicitly includes "abuse of authority", with the "mismanagement and waste of funds". If one were to interpret the Irish legislation against those international guidelines one could come to the conclusion that "abuse of authority" has been explicitly excluded because it has been included with the other two ways of defining wrongdoing that we have in the law. I argue that the need for the inclusion of the reference to undue influence is increased by a lack of definition of corruption in Irish law. The Minister has acknowledged that one of the aims of this legislation is to combat corruption but the current categories do not include the misuse of public entrusted power for private gain, therefore, there remains a gap in the legislation.

As an aside, it is one thing to argue that the courts may interpret the legislation as including "undue influence", and the Minister referred to the Attorney General's argument on the previous occasion, but it is necessary that the whistleblower is aware that this is something that constitutes a protected disclosure, and that is clearly not the case.

These amendments are very important. There is a class of wrongdoing that does not rise to the level of criminal that needs to be included but has not been included in this legislation. I give some examples in amendment No. 9 in regard to the Companies Acts or the Competition Acts in that a breach of the Competition Act can be criminal but is not always criminal.

I want to give the Minister the other example where I am changing section 5(3)(f) which refers to where there is "an unlawful or otherwise improper use of funds or resources of a public body, or of other public money ...". Regarding the hospital scandal that has arisen, no one is suggesting that anyone at a high level in a hospital has committed a criminal offence but it could certainly be suggested that they are improperly using charitable money or improperly breaching pay guidelines issued by the Department. No one is saying they will be hauled in before a judge and jury and convicted of crimes. If someone were to whistleblow that, for example, the chief executive officer of hospital X is getting €30,000 from the tuck shop, that is not a crime but it may well be improper and against all the guidelines the Minister issues, and it may well be against the Haddington Road agreement. That employee could suffer consequences but the protected disclosure may not fit within the existing categories. My amendment No. 7 would cover that because it is not a crime but it may be improper. I also believe there are categories of wrongdoing that are not criminal that need to be included in that subsection (3). I specifically mentioned the Companies Acts and the Competition Acts.

I am grateful to the Senators who tabled these amendments. It is a difference of approach and I have been considering it in the run-up to Committee Stage. Having heard the reasons and reasoned position put by Senators on Committee Stage, I have been considering it prior to dealing with it on Report Stage. Having considered it again I am still convinced, in further discussions with the Parliamentary Counsel, that the more general all-encompassing definitions are better. The more specificity we put into the Bill the more risk we run of exclusions because if lawyers ultimately argue that it was not specifically mentioned, and this was specifically mentioned, it has the potential to do the reverse of what we want in terms of other things we would like and have envisaged encompassing in the legislation.

In theory, it is possible to seek to specifically state every potential wrongdoing under the Bill but, in truth, that would be an exhaustive list and there would always be something that would occur into the future that would not be encompassed by it. I am reliably informed by the Parliamentary Counsel that the general catch-all provisions capture all the matters that have been proposed by the Senators. All three amendments are captured by the provisions laid out, and much more. Once we go down the road of specificity we are narrowing definitions because we leave it open to argue that that was not set out as opposed to a general definition which can be argued captures wrongdoing in all its dimensions. For these reasons and having taken the advices of Parliamentary Counsel again, I am told that the more robust, encompassing and therefore better definitions are the ones in the Bill as published.

I am certain that the type of wrongdoing I mentioned which is a grey area, namely, where the tuck shop profits are being used to pay for a chief executive's salary, possibly in breach of pay guidelines, is not covered by this legislation. If someone were to squeal about that, it is not covered. The Minister's argument about specifying things is correct except that he is already specifying seven categories of wrongdoing. He is already specifying all of these and is, therefore, arguing against himself. I believe he has to do this because there are various wrongdoings. I understand this Bill has yet to go before the Dáil and the Minister should examine it again because I believe there is a flaw in that respect.

The Minister should put his legal hat on.

I take it Senator Thomas Byrne is not pressing the amendment.

I will not press this one.

Amendment, by leave, withdrawn.

Amendment No. 8 in the names of Senators Katherine Zappone, Jillian van Turnhout and other Senators.

I move amendment No. 8:

In page 9, between lines 25 and 26, to insert the following:

“(h) that undue influence by a public official, including but not limited to the administration of justice or the proper functioning of state organs, has occurred, is occurring or is likely to occur,”.

I agree with Senator Thomas Byrne. I appreciate the Minister's re-examination but he has not offered any argument that takes account of the reasons I provided, and those given by the Senator. The Minister is saying this is what the Parliamentary Counsel has advised and that it is more robust despite the fact that the arguments we put forward challenge that to some extent.

I second the amendment.

My advice is that the Senator's amendment No. 8 on the exercise of undue influence by public officials is covered by the current definition in section (5)(3) of the Bill.

I understand that that is what the Minister said. I do not agree with it. I will withdraw the amendment and the Minister might reconsider the matter before the debate in the Dáil.

Amendment, by leave, withdrawn.

I understand the Senators' concerns. The Minister may examine that matter again before the debate in the Dáil but the amendment has been withdrawn and I thank the Senator for her co-operation.

Amendment No. 9 in the names of Senators Thomas Byrne, Averil Power and other Senators has been discussed already with amendment No. 7.

I move amendment No. 9:

In page 9, between lines 28 and 29, to insert the following:

“(i) that the Companies Acts have been or are likely to be breached, (j) that the Competition Acts or Articles 101-102 of the Treaty on the Functioning of the European Union have been or are likely to be breached.”.

I would like the Minister to confirm that he has got advice that non-criminal breaches of the Competition Acts, for example, are covered by this legislation. There are criminal and non-criminal breaches of that Act and the Competition Authority deals with them in different ways.

I second the amendment.

Amendment put and declared lost.
Amendment No. 10 not moved.

Amendment No. 11 is in the names of Senators Katherine Zappone, Jillian van Turnhout and others. Amendments Nos. 11, 12 and 21 are related and may be discussed together.

I move amendment No. 11:

In page 13, to delete lines 11 to 13 and substitute the following:

“(b) the investigation of the relevant wrongdoing concerned shows that the employee acted in bad faith,”.

I understand the reason these amendments are grouped together and some of the Minister's amendments address some of our concerns. We tabled an amendment on the previous occasion that was ruled out of order because it could involve a potential charge on the Exchequer.

While we did not debate it, the Leas-Chathaoirleach graciously allowed me to comment on section 11. I noted that in section 5(7), in defining whether disclosure is protected, motivation is listed as irrelevant but section 11 shows it to be relevant in cases of unfair dismissal. That does not seem to make any sense. We propose this amendment to provide a bad faith standard, similar to that in the United Knigdom, rather than to bring in the issue of motivation.

The UK legislation incorporates the bad faith standard alongside the 25% reduction as the Minister does in his own amendment to the section. I fully support his amendment because it potentially increases the amount of compensation the Minister had initially envisaged. The bad faith standard, however, provides a higher threshold of protection for the whistleblower than does a reference to motivation. There is a higher threshold of protection when one moves from 50% to 25% also. Our argument is simply that if an employee makes a public interest protected disclosure, and is dismissed as a result, the motivation should be irrelevant because the overriding principle is to promote disclosures in the public interest through ensuring that there is no penalisation.

I second the amendment.

This group of amendments includes one of my own. I listened carefully to the debate and the positions presented and we had a good discourse on Committee Stage. Amendments Nos. 11, 12, and 21 are all linked to the issue of compensation and the basis on which that compensation is payable. I propose to address these amendments together.

Amendment No. 11 proposes to replace the qualifying test in the proposed subsection (2B) of the Unfair Dismissals Act 1977, which states, "the investigation of the relevant wrongdoing concerned was not the sole or main motivation for making the disclosure", with, as Senator Katherine Zappone said, the in bad faith test. The effect of amendments Nos. 12 and 21 which I have tabled today is to lessen the penalty in compensation that can be awarded from 50% to 25% which is in line with the UK figure. Senator Katherine Zappone and others put their view on that strongly on Committee Stage.

Amendment No. 12 relates to the case of an unfair dismissal whereas amendment No. 21 relates to penalisation falling short of dismissal. In considering the bad faith test proposal in amendment No. 11, I must of necessity refer to the difficulties which the good faith test caused in the UK and I referred to that when we last debated this Bill. The inclusion of this test opened up the avenue to exploration into the motivation of the whistleblower and a subsequent failure to attract the protections of the legislation on the grounds that such motivation was less than pure, so to speak. In the case of the Protected Disclosures Bill, after lengthy and detailed consideration I concluded, and the Government agreed with me, that I should proceed with the Bill without a good faith hurdle or the alternative public interest hurdle. I hope the House will agree that this was a progressive approach which puts the legislation significantly ahead of the UK position in this respect.

In order to put the issue of the motivation of the disclosure beyond doubt in the Bill, I have included a provision at sub-section 5(7) stating that any consideration of the motivation of the discloser in assessing whether a disclosure is a protected disclosure is expressly stated to be irrelevant. I gave the example of my personal experience in this matter when as a public representative I sought an investigation into allegations of wrongdoing in the Garda Síochána in Donegal. The breakthrough in that instance was a statement made to the Garda by a relevant party whose motivation could well have been suspect but that was beside the point. The wrongdoing disclosed by that revelation was extremely important. It was of a criminal nature. Motivation in the British system up to now, when it had the good faith requirement, was shown to be very problematic where a defence then, when a matter reaches the court, centres on attacking the bona fides, the motivation and character of the informant or the whistleblower which I think is fundamentally wrong. I want to take that out of the system. I do not want to replace a good faith requirement with a bad faith requirement, the need to prove that a person does not have bad faith, which is the other side of the coin.

The Office of the Attorney General has advised that when there is no loss of protection under the Bill as it stands on the basis of motivation - that is what I intend it to do - the awarding of compensation, which we are now talking about, is an area in which due account of the motivation can be taken into account. This issue is left to the deciding body, which can hear the full evidence and make a decision that is fair between the parties, depending on the circumstances. It should be stressed, however, that the adjudicating body is not bound to reduce the award, it simply has the capacity to do so on the merits or demerits of the case presented to it. Amendments Nos. 12 and 21 address this issue. I have already indicated that I propose to lessen the penalty from 50% to 25% of what otherwise would be awarded if the investigation of the relevant wrongdoing was not the sole or main motivation of the person making the disclosure. The provisions reflect a similar amendment in the UK Protected Disclosure in the Public Interest Act 1998 which was enacted earlier this year in the British Parliament. It is a more reasonable diminution in the compensation payable and I accept the very clear case made by Senator Katherine Zappone and others on Committee Stage for that to happen. It significantly reduces the emphasis on motivation which I have always been concerned to ensure remains. What motivates one to tell the truth is a lesser matter if the facts one presents are true, or if one believes them to be true. They do not have to be true. If one has a firm and honest belief that wrongdoing is taking place one should be protected in bringing that to the attention of the appropriate bodies and, if there is no action, to a higher body.

A bad faith test could open up similar avenues of exploration to those opened up in the good faith test. I do not want to go down that route, even by way of adjudicating on the compensation. For these reasons I will not accept amendment No. 11 and hope Senators will support the amendments I have put forward.

I thank the Minister for his response. When we tabled this amendment we had not seen the Government amendment about reducing the 50% to 25%. The way in which the Minister links those two very reasonable and forceful arguments makes sense. I appreciate what the Minister says and the reasoning behind it, and agree that in light of his amendments there is no need to include the amendment we have put forward.

Government amendment No. 12:

In page 13, line 15, to delete “50 per cent” and substitute “25 per cent”.

Amendment, by leave, withdrawn.
Amendment agreed to.

Amendments Nos. 13 and 20 are related and may be discussed together.

Government amendment No. 13:
In page 13, between lines 16 and 17, to insert the following:
“(2) Schedule 1 contains provisions for interim relief in cases where a claim is brought for redress for a dismissal which is an unfair dismissal by virtue of section 6(2)(ba) (inserted by subsection (1)) of the Unfair Dismissals Act 1977.”.

These are two very important amendments. Long but very coherent arguments were made for them on Committee Stage. Senator Kathryn Reilly is not here but she put forward a good case for these points. This is the issue of interim relief. The purpose of amendment No. 13 is to provide for interim relief in cases where there is likely to be a substantial delay between a dismissal and an unfair dismissals hearing being heard by the relevant appeals body. International best practice recommends that such a provision should be included in whistleblowing legislation as it provides an important protection for workers, and the absence of a provision for interim relief is considered to be a disincentive. That case was made coherently and logically. I do not think that it will be any surprise that I was still engaged in discussions with the Department of Jobs, Enterprise and Innovation on these matters because they have implications for wider labour law.

I am very glad to say we have arrived at a consensus and agreement not only between myself and the Minister for Jobs, Enterprise and Innovation but also across the Government on this matter, which makes it possible to table these amendments today. Everybody in the House will welcome them on the basis of the old adage that justice delayed is justice denied. If one is dismissed, one should have recourse to having one’s case heard and have interim relief provided pending such a time, if there is a strong possibility that one’s case is valid before a full hearing and that one is not penalised in the interim to such a degree that nobody else would be encouraged to blow the whistle in the same circumstances.

Amendment agreed to.

I move amendment No. 14:

In page 14, between lines 25 and 26, to insert the following:

“(2) The Minister may by regulation issue guidelines to the Courts on the amount of compensation payable for an action in tort referred to in subsection (1).”.

Has the Minister given any thought to the points I raised in this regard on Committee Stage?

I second the amendment.

I have considered it further. As I said on Committee Stage, I think it anomalous for me, as Minister, to issue guidelines in tort actions in this or any other Bill. The Minister for Public Expenditure and Reform, whoever that person happens to be, is not in any better position than the courts themselves, and many would argue is in a much lesser position than the courts, to decide on what the guidelines for damages for breaches of the Bill should be. This is a classic function of the courts as opposed to the Legislature. I do not believe it will add to the process for the issue of guidelines. In some instances, what are almost instructions have been given to the courts by the Oireachtas in some areas of law, but I am not sure that is a great idea. In my view, this is an issue that should be best left to the courts, which have the expertise in assessing damages and have enormous precedent available to them in that regard. The preparation of such guidelines would also, in my view, be an encroachment on the separation of powers, or could potentially be perceived as such. I have thought further on it but I consider it is wise not to accept the amendment.

Is the amendment being pressed?

I will not press it, but I point out such guidelines are in place for use by the Injuries Board, for example, which seeks to keep cases out of court. However, the courts are required to and do have regard to those guidelines. Therefore, this would not be new, but, as it is not the most important section, I will not press the issue, having listened to what the Minister had to say.

Amendment, by leave, withdrawn.

Amendments Nos. 15 to 18, inclusive, are related and may be discussed together.

I move amendment No. 15:

In page 16, line 28, after “Éireann” to insert “or Seanad Éireann”.

I hope the Government will accept the amendment but, if it does not, I hope Senators on all sides of the House will do so. Essentially, what I am seeking to do in this amendment is to put Members of Seanad Éireann on the same footing as Members of Dáil Éireann in terms of disclosures under sections 17 and 18. This is important. When we had this discussion before, it was the week of the referendum and it seemed to me the Government was winding down the Seanad, and so the Seanad was forgotten about. I do not believe the Minister made any good argument in terms of restricting these procedures to Members of Dáil Éireann and I will certainly be encouraged if the Government accepts the amendments or if Senators support them in a vote.

I second the amendment.

I could state all the advice I have in terms of the constitutional role of the Dáil as being the representative body, and so on, but I am not sure I would be very convincing. The people have made their own discernment about the importance of this House. For those reasons, I accept the amendments.

I am very grateful to the Minister. This is possibly one of the first amendments from the Opposition to have been accepted directly, as they are normally clothed as Government amendments, like the last one the Minister put through. I am grateful. I believe the people have spoken in this regard. I know Senators will use their functions carefully and with due consideration.

In racing parlance, winner all right.

Amendment agreed to.

I move amendment No. 16:

In page 17, line 3, after “Éireann” to insert “or Seanad Éireann”.

I second the amendment.

I accept the amendment.

Amendment agreed to.

I move amendment No. 17:

In page 17, line 13, after “Éireann” to insert “or Seanad Éireann”.

I second the amendment.

I accept the amendment.

Amendment agreed to.

I move amendment No. 18:

In page 17, line 14, after “Éireann” to insert “or Seanad Éireann”.

I second the amendment.

I accept the amendment.

I am grateful to the Minister for accepting the amendments and to my colleague, Senator Katherine Zappone, for formally seconding them.

Amendment agreed to.
Amendment No. 19 not moved.
Government amendment No. 20:
In page 20, after line 13, to insert the following:
"
SCHEDULE 1
INTERIM RELIEF PENDING DETERMINATION OF CLAIM FOR UNFAIR DISMISSAL
Application for interim relief.
1. (1) An employee who claims to have been dismissed by the employee’s employer wholly or mainly for having made a protected disclosure may apply to the Circuit Court for interim relief.
(2) The Circuit Court shall not entertain an application for interim relief unless it is presented to the Court before the end of the period of 7 days immediately following the date of dismissal (whether before, on or after that date) or such longer period as the Court may allow.
(3) The Court shall determine the application for interim relief as soon as practicable.
(4) The employee shall give the employer prior written notice of intention to make the application for interim relief.
(5) The Court shall not exercise any power it has of postponing the hearing of an application for interim relief except where it is satisfied that special circumstances exist which justify it in doing so.
Procedure on hearing of application and making of order.
2. (1) This paragraph applies where, on hearing an employee’s application for interim relief, it appears to the Court that it is likely that there are substantial grounds for contending that dismissal results wholly or mainly from the employee having made a protected disclosure.
(2) The Court shall announce its findings and explain to both parties (if present)—
(a) what powers the Court may exercise on the application, and
(b) in what circumstances it will exercise them.
(3) The Court shall ask the employer (if present) whether the employer is willing, pending the determination or settlement of the claim—
(a) to reinstate the employee (that is, to treat the employee in all respects as if the employee had not been dismissed), or
(b) if not, to re-engage the employee in another position on terms and conditions not less favourable than those which would have been applicable to the employee if the employee had not been dismissed.
(4) For the purposes of subparagraph (3)(b) “terms and conditions not less favourable than those which would have been applicable to the employee if the employee had not been dismissed” means, as regards seniority, pension rights and other similar rights, that the period before the dismissal should be regarded as continuous with the employee’s employment following the dismissal.
(5) If the employer states a willingness to reinstate the employee, the Court shall make an order to that effect.
(6) If the employer—
(a) states that a willingness to re-engage the employee in another position, and
(b) specifies the terms and conditions on which the employer is willing to do so,
the Court shall ask the employee whether he or she is willing to accept the position on those terms and conditions.
(7) If the employee is willing to accept the position on those terms and conditions, the Court shall make an order to that effect.
(8) If the employee is not willing to accept the position on those terms and conditions—
(a) where the Court is of the opinion that the refusal is reasonable, the Court shall make an order for the continuation of the employee’s contract of employment, and
(b) otherwise, the Court shall make no order.
(9) If on the hearing of an application for interim relief the employer—
(a) fails to attend before the Court, or
(b) states an unwillingness either to reinstate or to re-engage the employee as mentioned in subparagraph (3),
the Court shall make an order for the continuation of the employee’s contract of employment.
Order for continuation of contract of employment.
3. (1) An order under paragraph 2 for the continuation of an employee’s contract of employment is an order that the contract of employment continue in force—
(a) for the purposes of pay or any other benefit derived from the employment, seniority, pension rights and other similar matters, and
(b) for the purposes of determining for any purpose the period for which the employee has been continuously employed,
from the date of its termination (whether before or after the making of the order) until the determination or settlement of the claim.
(2) Where the Court makes such an order it shall specify in the order the amount which is to be paid by the employer to the employee by way of pay in respect of each normal pay period, or part of any such period, falling between the date of dismissal and the determination or settlement of the claim.
(3) Subject to the following provisions, the amount so specified shall be that which the employee could reasonably have been expected to earn during that period, or part, and shall be paid—
(a) in the case of a payment for any such period falling wholly or partly after the making of the order, on the normal pay day for that period, and
(b) in the case of a payment for any past period, within such time as may be specified in the order.
(4) If an amount is payable in respect only of part of a normal pay period, the amount shall be calculated by reference to the whole period and reduced proportionately.
(5) Any payment made to an employee by an employer under his or her contract of employment, or by way of damages for breach of that contract, in respect of a normal pay period, or part of any such period, goes towards discharging the employer’s liability in respect of that period under subparagraph (2); and, conversely, any payment under that subparagraph in respect of a period goes towards discharging any liability of the employer under, or in respect of breach of, the terms and conditions of employment or contract of employment in respect of that period.
(6) If an employee, on or after being dismissed, receives a lump sum which, or part of which, is in lieu of wages but is not referable to any normal pay period, the Court shall take the payment into account in determining the amount of pay to be payable in pursuance of any such order.
(7) For the purposes of this paragraph, the amount which an employee could reasonably have been expected to earn, the employee’s normal pay period and the normal pay day for each such period shall be determined as if the employee had not been dismissed.
Application for variation or revocation of order.
4. (1) At any time between—
(a) the making of an order under paragraph 2, and
(b) the determination or settlement of the claim,
the employer or the employee may apply to the Court for the revocation or variation of the order on the ground of a relevant change of circumstances since the making of the order.
(2) Paragraphs 1 and 2 apply in relation to such an application as in relation to an original application for interim relief except that, in the case of an application by the employer, paragraph 1(4) has effect with the substitution of a reference to the employee for the reference to the employer and of a reference to the employer for the reference to the employee.
Consequence of failure to comply with order.
5. (1) If, on the application of an employee, the Court is satisfied that the employer has not complied with the terms of an order for the reinstatement or re-engagement of the employee under paragraph 2, the Court shall—
(a) make an order for the continuation of the employee’s contract of employment, and
(b) order the employer to pay compensation to the employee.
(2) Compensation under subparagraph (1)(b) shall be of such amount as the Court considers just and equitable in all the circumstances having regard—
(a) to the infringement of the employee’s right to be reinstated or re-engaged in pursuance of the order, and
(b) to any loss suffered by the employee in consequence of the non-compliance.
(3) Paragraph 3 applies to an order under subparagraph (1)(a) as in relation to an order under paragraph 2.
(4) If on the application of an employee the Court is satisfied that the employer has not complied with the terms of an order under subparagraph (1)(a) for the continuation of the employee’s contract of employment subparagraph (5) or (6) applies.
(5) Where the non-compliance consists of a failure to pay an amount by way of pay specified in the order, the Court shall determine the amount owed by the employer on the date of the determination.
(6) In any other case, the Court shall order the employer to pay the employee such compensation as the Court considers just and equitable in all the circumstances having regard to any loss suffered by the employee in consequence of the non-compliance.
(7) Any sum awarded to the employee on the determination of the claim that he or she has been unfairly dismissed shall be specified separately from any amount determined under subparagraph (5).”.
Amendment agreed to.
Government amendment No. 21:
In page 21, line 34, to delete “50 per cent” and substitute “25 per cent”.
Amendment agreed to.
Government amendment No. 22:
In page 25, to delete lines 12 to 35 and substitute the following:
“Amendment of Protection of Employees (Employers’ Insolvency) Act 1984.
6. Section 6 of the Protection of Employees (Employers’ Insolvency) Act 1984 is amended—
(a) in subsection (2)(a)—
(b) in subsection (2)(b) by substituting “, (xxx) or (xxxi)” for “or (xxx)”,
(c) in subsection (2)(c) by substituting “, (xxx) or (xxxi)” for “or (xxx)”, and
(d) in subsection (9), in the definition of “relevant date”, by substituting “, (xxx) or (xxxi)” for “or (xxx)”.”.
Amendment agreed to.
Government amendment No. 23:
In page 33, after line 42, to insert the following:

17

Central Bank (Supervision and Enforcement) Act 2013 (No. 26 of 2013)

Section 38

(a) After subsection (1) insert—

“(1A) Subsection (1) does not apply to a disclosure that is a protected disclosure within the meaning of the Protected Disclosures Act 2013.”.

(b) In subsection (4)(a), after “disclosures” insert “and disclosures which would be protected disclosures but for subsection (1A)”.

Amendment agreed to.
Bill, as amended, received for final consideration and passed.
Sitting suspended at 1 p.m. and resumed at 3 p.m.