Protected Disclosures Bill 2013 [Seanad]: [Seanad Bill amended by the Dáil] Report and Final Stages

This is a Seanad Bill which has been amended by the Dáil. In accordance with Standing Order 118, it is deemed to have passed its First, Second and Third Stages in the Seanad and is placed on the Order Paper for Report Stage. On the question "That the Bill be received for final consideration", the Minister may explain the purpose of the amendments made by the Dáil. This is looked upon as the report of the Dáil amendments to the Seanad. The only matters, therefore, which may be discussed are the amendments made by the Dáil. For Senators' convenience, I have arranged for the printing and circulation of the amendments. The Minister will deal separately with the subject matter of each related group of amendments. I have also circulated the proposed grouping to the House. Senators may speak only once on Report Stage.

Question proposed: "That the Bill be received for final consideration."

I ask the Minister to speak on subject matter of the amendments in the first group, including amendment No. 1.

We had a very useful discussion on this important Bill when I was last here and that continued in the other House. I have reflected on many of the very positive suggestions made in the House and crafted amendments accordingly. We are dealing with group 1 and amendment No. 1 in particular, the text of which reads:

In page 5, line 19, "not later than the end of the period of 5 years" deleted and "not later than the end of the period of 3 years" substituted.

The shorter review period will provide an earlier opportunity to assess whether this vital legislation is working as intended and to propose any reforms needed to strengthen it in light of its operation.

An earlier review was proposed in this and the other House, so I have reflected upon that. I think three years is a more appropriate timeframe rather than the five years we originally proposed.

I am at a loss here because I do not have the Dáil amendments, although I have read them. I thank the Minister because I recall that debate very clearly and I am glad the Minister listened. It reminds me of the Seanad referendum when they said the Seanad did nothing and that amendments were never made to Bills, but, of course, this is the way the debate happens. The debate takes place and the Minister puts forward his amendments, so we are glad to support that.

I call on the Minister to speak on the subject matter of the amendments in group 2.

The amendments in this group are very important in providing clarity on the definitions of "employee" and "employer" and that part of the definition of "worker" relating to contractors. I will discuss each amendment in turn. The original Bill contained quite convoluted definitions and I have sought, with the help of the Parliamentary Counsel, to produce clearer and more user-friendly definitions. The purpose of amendment No. 2 is to ensure that members of An Garda Síochána, including members of the Garda Reserve, and civil servants who do not work under formal contracts of employment will have access to the full range of protections available to all employees under this legislation. These persons are specifically referenced in section 2(a), introduced under amendment No. 6, which explicitly deems them to be employees for the purposes of this Bill. Amendment No. 3 simplifies and clarifies the definitions of "employer" and "worker" in the Bill so as to minimise the risk of any legal uncertainty as to the relationship that exists in any particular case. Amendment No. 4 focuses on the definition of "worker", which is now defined in simpler terms. Amendment No. 5 is designed to specifically confirm that the definition of "worker" includes a member of the Permanent Defence Force, so as to ensure that they also fall squarely within the ambit of the Bill. Amendment No. 6, as I have already mentioned in connection with amendment No. 2, specifically deems members of An Garda Síochána and civil servants to be employees embraced by this Bill.

Are there any comments on the amendments in group 2?

Was there some chopping and changing in respect of An Garda Síochána?

That will come later on.

That is further on?

I call on the Minister to speak on the subject matter of amendments in group 3 - amendments Nos. 7 to 13, inclusive.

Amendment No. 7 provides greater legal certainty that a disclosure made prior to the enactment of this legislation can qualify as a protected disclosure provided that penalisation or detriment is continuing after the enactment of the Bill. This makes the provision contained in section 5(9) of the Bill no longer necessary, and amendment No. 9, therefore, deletes that section of the Bill. In essence, it ensures that we have retrospective effect as long as detriment to an employee is still occurring after the enactment of the Bill.

Are there any comments on the amendments in group 3? No. I call on the Minister to speak on the subject matter of the amendments in group 4 - amendments Nos. 14 and 15.

These amendments provide clarification in respect of the circumstances in which advice from a solicitor or trade union official on legal matters constitutes legal advice. The Office of the Attorney General endorsed the proposal that a text in parentheses should be included in the provision to make clear that legal advice extends to advice on the operation of the protected disclosures regime.

The revised wording of section 9 also encompasses an official of an accepted body within the meaning of the Trade Union Act 1941 and a body included on the register maintained by the Registrar of Friendly Societies for the purpose of representing workers in their relations with employers or to act as representative bodies for particular interest groups.

We had a discussion in other House. While legal advice is protected, often on a matter of this type, trade union officials give quasi-legal advice and to make sure that is captured, I have proposed and accepted the amendment.

We will move on to group 5, subject matter of amendment No. 21.

The amendment deletes section 10(3)(d) of the Bill originally passed by the House. Section 10 sets out the circumstances under which a disclosure made to a person other than an employer, a prescribed person or a Minister - what we have classified as an external disclosure - will attract the protections of the legislation. One of the circumstances listed is that "in all the circumstances of the case it is reasonable for the worker to make the disclosure". Section 10(3)(d) specified one of the matters to which particular regard must be had in determining whether it was reasonable for the worker to make the disclosure as "whether the disclosure is made in breach of a duty of confidentiality owed by the worker's employer to any other persons". It is evident by their very nature that many whistleblowing reports will involve a duty of confidentiality. On that basis, and having reflected on it, disclosures made under section 10(d) would not qualify as protected on account of this element of the reasonableness test as set out. The amendments proposes to address what might otherwise create an obstacle for the appropriate use of the legislation.

If a staff member goes to a more senior staff member and the senior member reports this to management or the employer, is the junior staff member covered by this provision? One can assume that would happen in the workplace. A junior staff member might not have the confidence or wherewithal to go to the boss or the management. There should be no ambiguity about whether he or she would be protected if the complaint went further.

The amendment does not relate to that; it relates to a disclosure to somebody outside the company. It is being made to ensure the reasonableness requirement is not an obstacle to that.

With regard to the Senator's question, it is possible to report to a line manager and not necessarily the most senior manager and to have full protection under the legislation.

Group No. 6 is the subject matter of amendments Nos. 22 to 25, inclusive, and amendment No. 36.

This relates to the issue raised regarding An Garda Síochána. The group of amendments provides for what can be termed the "mainstreaming" of the Garda for the purposes of the Bill. The combined effect of the amendments is to ensure members of the Garda will be subject to this legislation in the same way as any other worker. In addition, the particular arrangement relating to the confidential recipient that currently replies in respect of the making of confidential reports by members of An Garda Síochána will no longer apply. The position has been wound up. Following the enactment of the Bill, all such reports will be made in accordance with the provisions set out in this legislation.

Three distinct elements are required to bring members of the Garda fully within the remit of the Bill. The first element is to ensure members have access to the same redress provisions as every other worker in the State for the purposes of this legislation. This is addressed by amendments Nos. 22 and 23, both of which, though relatively minor technical changes, reverse the current exclusion of members of An Garda Síochána from the protections available under the legislation. The effect of amendment No. 22 is to give them access to the Unfair Dismissals Acts for a claim of dismissal following the making of a protected disclosure while the effect of amendment No. 23 is to give them access to the industrial disputes resolution mechanisms of the State such as rights commissioners and the Labour Court in respect of claims of penalisation following the making of a protected disclosure.

The second element is to make consequential amendments. These are addressed by amendments Nos. 24 and 25. The changes to section 19, to which I will refer in a moment, require some tidying up of the legislative framework which is affected by these amendments. The third element ensures the ending of the separate and distinct arrangements in the Garda Síochána Act, which currently exist for the making of confidential reports. The new and completely revised version of section 19, set out in amendment No. 36 provides for the revocation of the regulations governing the current confidential recipient arrangements.

In terms of the findings of the Guerin report regarding the operation of the confidential recipient system for Garda whistleblowers, Senators will agree that this is a very significant, important and welcome reform. Amendment No. 36 also provides that GSOC will, in accordance with the commitment given by the former Minister for Justice and Equality, be prescribed as a body suitable for the acceptance of protected disclosures, in accordance with the provisions of section 7. I intend to prescribe GSOC under section 7 as soon as possible once this legislation has commenced.

Does this mean a member of the Garda Síochána can make a disclosure only to GSOC, or is the person protected only under GSOC and therefore cannot make a disclosure anywhere else? Is only the Commissioner of the Garda Síochána exempt? What is the role of other senior members of the Garda Síochána should they wish to make a disclosure?

It is the intention to mainstream the Garda Síochána. A reporting body for every body must be set out. Within a company, it would be the management, before they can disclose externally, and the same will apply to the Garda Síochána. While GSOC is a designated recipient of complaints, it would be possible for a member of the Garda Síochána to make an external disclosure should nothing happen after a disclosure to GSOC, for example a garda could make a disclosure directly to the Minister for Justice and Equality. As Members know, the Minister for Justice and Equality will shortly bring forward reforming legislation regarding GSOC, and it will be the appropriate body to receive complaints or suspicions from members of the Garda Síochána in the normal course of their work.

We move on to group 7, amendments Nos. 26 and 27.

Amendments Nos. 26 and 27 relate to an important issue at the core of the Bill which was of concern in both Houses, namely, the protection of the identity of whistleblowers. Having considered the arguments put to me in both Houses, I carefully considered this matter and consulted widely with the Attorney General. The amendments before us seek, as much as possible, consistent with the objective of the legislation and other important public policy objectives, to differentiate between the message and the messenger and to protect the identity of the person who makes a protected disclosure. Amendment No. 26 removes the "all reasonable steps" qualifier so as to make it the recipient's duty to protect the identity of the whistleblower. While the original legislation requires the recipient to take "all reasonable steps" to protect the whistleblower, I am making protection an absolute requirement.

It is essential that recipients of disclosures are not precluded from taking necessary action on foot of the information disclosed to them because it would require them to disclose the identity of the whistleblower. It would be a moot issue if one could not act on the information because to do so would disclose the identity of the whistleblower. Once the issue was being investigated, the disclosure of the information might point to one individual exclusively. We must have provision that action can be taken, otherwise there is no point in the whistleblowing.

Section 16(2) makes explicit the specific and limited circumstances where objectively it would warrant a departure from the mandatory prohibition on disclosing the identity of the whistleblower. The effect of amendment No. 27 is to place the burden squarely on the recipient of the information to demonstrate where the identity of the whistleblower has been revealed that all reasonable steps to avoid such a disclosure have been taken. When considered in conjunction with the provisions of section 16(3) where the holder of the disclosure can be subjected to an action for any loss arising, this sets a very high hurdle for the recipient of the information in ensuring that he or she protects as far as possible the identity of the whistleblower.

As there is no comment on Group 7, we will move on to Group 8, which is the subject matter of amendments Nos. 37 and 38.

This group of amendments relates to the very constructive and helpful debate on the Bill that took place in this and in the Lower House. The specific proposals concern the case that the Minister should issue guidelines to public bodies setting out the matters which their internal procedures should address to ensure consistency across public bodies - Members will recall that Senators raised the issue in the debate on the Bill in this House that there should be a consistent approach across all public bodies in regard to handling of whistleblowing - as well as to seek to make sure that internal procedures in all public bodies are as effective as possible. The case was also made that public bodies should report on their activities in regard to protected disclosures once they had been received.

Having considered all the points made and given that these matters are important, I have reflected further and have tabled these amendments. I am confident that amendments Nos. 37 and 38 fully address the issues raised in this and in the other House.

Does Senator Bradford wish to comment?

I welcome the Minister and apologise for not participating in the earlier Stages of the legislation but, notwithstanding that, I want to raise with him how this proposal and these amendments will impact on whistleblowers in banks throughout the country. As we all know, the protection of whistleblowers in our banking institutions is very important as we hopefully see the beginning of a new economy and a new banking structure, system and ethos. The Minister will be aware that the Central Bank (Supervision and Enforcement) Act 2013 provides a certain level of protection for whistleblowers within certain banking structures but it does not provide the same level of protection as is provided for within this legislation.

We are dealing in these amendments with public bodies and a public body is defined as "a company ... a majority of shares in which are held by or on behalf of a Minister of the Government". I am sure the Minister will be in a position to confirm that the provision would therefore apply to AIB, Permanent TSB and NAMA but significantly it would not apply to Bank of Ireland, presumably because the majority of the shares in it are not held by the Minister on behalf of the Government.

In that regard, there will now be two types of bank employees from the point of view of protection under this Act. Bank employees in AIB, Permanent TSB and in other financial institutions such as NAMA will have the full support and protection of the Minister's proposed legislation but it will be different for employees in Bank of Ireland. Section 38 of the Central Bank Act is being amended to ensure that protected disclosures, as prescribed in this Act, are protected in banks, but why would we simply not repeal the particular section of the Central Bank Act and replace it by the current definition which the Minister is preparing this afternoon? While his proposals are welcome and a very significant step forward, there will still be this anomaly particularly within the Bank of Ireland which will not have the same reporting obligations as far as my reading of the legislation and its definitions are concerned.

It is a worry that there will be that difference between what employees feel obliged to do in one banking institution as opposed to other financial institutions. The necessity to support and assist whistleblowers in our financial institutions is accepted by all of us. Even at this stage, could the Minister contemplate, by way of further legislation, the repeal of section 38 of the Central Bank Act and its replacement by the type of legislation presented here today, in order that all employees in all our financial institutions, which are public bodies, but also banks which are not deemed to be public bodies will have the same protection and feel equally safe in coming forward to highlight wrongdoing which they consider is being practised?

The whole purpose of this legislation from the start was to have overarching legislation that captures everybody, both public and private, without distinction. All the banks will be covered by this legislation, whether their majority shareholding is in State hands or in private hands. There will be no distinction between the capacity of a whistleblower in Bank of Ireland, AIB or in any other institution who will be able to make such a disclosure. On the points made about the Central Bank, the Central Bank will also be captured by this legislation. The Bill will supersede the requirements set out in the Central Bank legislation. We sought advice on any necessity to repeal any element of the Central Bank Act. This legislation will simply supersede it and provide the protection to workers in the Central Bank and any other agency to whistleblow and have the protections set out for redress.

We will move on to group 9, subject matter of amendment No. 39.

Senators will recall we had a debate on interim relief in this House. I accepted an amendment in this House to have interim relief which is new for breaches of labour law. This is sitting into the suite of labour law. The time limit for seeking interim relief in the Bill passed by the Seanad was set at seven days. It was put to me subsequently that in practice it is likely to take longer to identify and engage with solicitors before a case can be made. Having considered the matter I have decided that a longer period than seven days is required and I propose that 21 days be allowed to make an application for interim relief. I think that is more satisfactory.

We will move on to group 10, subject matter of amendment No. 40.

This is a minor technical amendment to the first line on page 21 to correct a typographic error.

We will move on to group 11, subject matter of amendments Nos. 41 and 42.

These are technical amendments necessitated by recent legislative developments. Amendment No. 41 removes the reference to the Labour Services Act and amendment No. 42 inserts a provision for the amendment of the Further Education and Training Act 2013. As other legislation has overtaken us, I am correcting it to ensure it is up to date.

Question put and agreed to.
Question proposed: "That the Bill do now pass."

I thank and congratulate the Minister for shepherding this legislation through the Houses. Many of the problems that governments and society are dealing with relate to things being hidden and stories not being told and crimes being committed that nobody knew about.

It also relates to people being afraid to speak out and voices being silenced by pressures in the all-powerful society. I hope this legislation will change matters so that, where wrongdoing is happening in any organisation, an employee will not only feel safe and free to speak out, but also compelled to do so. It should become the done thing. It is one matter to have protections, but it is another to make people feel they should be doing something to better society. If people speak out when they see wrongdoing, future Governments and societies will not have to deal with the problems of the past, as Irish Governments have constantly been doing because people were neither brave nor protected enough to speak out.

I thank the Minister. It is a good day to have this Bill passed. The Minister has listened, taken advice, consulted and reverted to Members. People always complain that Ministers never listen in the Houses, but here we are and the Minister has listened. That is good.

This is also a good day for the political system because we are constantly accused of not keeping our promises or of not making or seeking changes in the secret ways in which we operate. We must find a balance with regard to the need for some privacy in documentation, but this Bill marks a good departure. As the Minister stated, it ensures that everyone is captured in so far as possible. Including the Central Bank and the Garda is a welcome step, as is the provision of additional responsibilities to and the strengthening of GSOC. Like citizens and workers, police officers now know that the State has provided the protections it can, debated this matter at length and consulted with those involved. This strengthens everyone. It is not anti-State or anti-employer. Everyone should feel better when we have a more open society and when we openly say that we oppose the secret environments that have led to such poverty of thought and action.

I thank the Minister for his considerable efforts. I also thank his staff, who have spent many long hours straightening the Bill out and making it fly right.

Like my colleagues, I congratulate the Minister. He is a Minister who listens, the proof of which is the Bill's unanimous acceptance today. I will tell the truth: I am glad to see this Bill pass, as it was only a number of weeks ago that a public servant contacted me to complain. I told her that she was protected when approaching management, but her response was "No way". I made the complaint, but I was asked who the public servant was seven times. I can understand why she did not want to make the complaint herself. Although it was dealt with immediately, even I felt threatened because when the matter went to senior management, it also wanted to know who was making the complaint. This legislation will protect employees thanks to how the Minister has approached it. The input from all sides must be complimented.

Does Senator Bacik wish to contribute?

Once the Minister has concluded, I wish to amend the Order of Business.

I thank Senators. We did our business expeditiously today, but we held a long debate when the Bill was before the House in the first instance, when useful and thoughtful suggestions were made, which I appreciate.

The legislation that has been enacted is innovative in international terms. I presented on this Bill at the Open Government Partnership forum in London recently.

It is regarded as being among the best international whistleblowing protection regimes which we can all be proud of. It is necessary in the context of the points made about our recent history. I look forward to its full implementation. Obviously there will have to be training and advices given to both employees and employers, plus a common code must be established across the pubic service, so it can be used effectively and well plus alleviates the very lonely position that whistleblowers sometimes find themselves in. It is never easy to be a whistleblower no matter what regime we put in place. We have tried to change the culture so that people will not have to resort to legislative protections and the culture of exposing wrongdoing is not only the norm but fully accepted and lauded. We have made an important step in that direction today and I thank Senators for their contribution.

Question put and agreed to.