Michael Moynihan
Ceist:1. Deputy Michael Moynihan asked the Taoiseach if there is a whistleblowing policy in his Department. [49442/18]
Amharc ar fhreagraTuesday, 18 December 2018
Ceisteanna (1)
Freagraí ó Béal (7 píosaí cainte)
The Protected Disclosures Act 2014 provides a robust statutory framework which aims to provide protections to whistleblowers who raise concerns regarding potential wrongdoing in their workplace. These protections apply to workers in all sectors of the economy, both public and private. They protect whistleblowers from being penalised by their employer for reporting wrongdoing in the workplace or suffering any detriment for doing so. The Act requires every public body to establish and maintain procedures for dealing with protected disclosures and provide written information relating to these procedures to their employees.
In line with the Act, my Department has a policy on protected disclosures which sets out the procedure by which an employee can make a disclosure, what will happen when a disclosure is made, and what my Department will do to protect a discloser. My Department is committed to fostering an appropriate environment for dealing with concerns and assisting staff in speaking up regarding potential wrongdoing in the workplace and providing the necessary assistance for staff who raise genuine concerns. To date, no disclosures have been received from employees or former employees of my Department under the Protected Disclosures Act 2014.
If one looked at the recent RTÉ documentary produced by Ms Katie Hannon about the trauma that former Sergeant Maurice McCabe, perhaps our most high-profile whistleblower, went through, one would have been struck by a number of comments that he made. In particular, Mr. McCabe stated that if he had known what he and his family had to go through, he would not have made the original complaint in the first instance. That is something that must be worrying to all of us in that there is still a sense that if a person complains or makes a protected disclosure, he or she will pay for it in many ways.
Since then, all of us have been subject to many complaints or notifications of protected disclosures in different sectors of the public service. Standing back from it, what comes to mind is a sense that there should be a culture within each Department and State organisation that would, ultimately, if it was optimal, avoid the necessity for protected disclosures.
My worry is that protected disclosures are becoming more frequent. That, in itself, is an indictment of existing practices in terms of human resource development and mediation within State organisations and Departments, shows a failure to head off prospective difficulties, and in many ways reinforces the original negative behaviour to such an extent that it ends up on a protected disclosure.
That impacts on the productivity, well-being, efficiency and effectiveness of an organisation. Culture change within Departments is key. I ask the Government to reflect on why we are inundated with so many serious and profound complaints and why so many are made as protected disclosures. Very often, there is an absence of mechanisms within Departments for coping with protected disclosures. For example, very serious allegations about the heath, safety and well-being of Air Corps members have been made during the years. The complaints have been snarled in legalities, but the obfuscation and stonewalling in dealing with the original complaints demonstrates a lack of transparency and humanity.
The culture within Departments is an issue. I recently received a protected disclosure from a staff member in the National Parks and Wildlife Service, NPWS, who had previously made very serious allegations to management about ammunition and firearms in the service. An audit was carried out in that regard, but the results thereof have not been published. It is very concerning that a new standard operating procedure was put in place without any consultation with staff, as would normally be the case. It is alleged that the operating procedure is being used to take disciplinary proceedings against the individual who has made repeated claims about management, specific individuals and the policies of the NPWS which go so far as to suggest firearms and ammunition may have been missing or stolen. It is a very serious issue. It is very concerning that although procedures to deal with protected disclosures are in place, there still appears to be a culture such that the individual making a disclosure is the target of intimidation and harassment. There is a similar culture within banks. Senior members of certain financial institutions have made it clear that persons who bring forward protected disclosures will carry the burden. We need more than procedures and the current legislation. We need a dramatic shift in culture in terms of how such individuals are dealt with and protected.
The protected disclosures legislation was ground-breaking. It was modelled on best international practice at the time and very much in line with the open government initiative to which Ireland had signed up while the Labour Party was in government. The idea behind it was that it would allow disclosures to be made to the level of manager closest to the issue which had arisen. In other words, one would not have to go to the very top of an organisation. As it turns out, people feel inhibited and that they must either go to the very top of the organisation or, in many instances, a Member of the Oireachtas which is provided for in the Act, instead of having the cultural space within the public service to have matters addressed quickly in the workplace by one's immediate supervisor such that those making a disclosure feel confident that the disclosure and their confidentiality will be respected and the issue will be addressed seriously. We have not yet made that cultural shift and it will probably take some time for it to bed in.
I do not particularly consider the fact that there have not been disclosures in the Department of the Taoiseach, for example, as an indication that there are no matters worthy of disclosure. We need to ensure people are secure in making a disclosure. I am struck by the point made by Deputy Micheál Martin that the most significant whistleblower in our lifetimes stated he would not have embarked on the pursuit of the truth in the way he did had he known what the consequences would be for him and his family, which is shocking. It is incumbent on us to change the system such that a concern about a procedure, wrongdoing or any other matter could be brought to one's immediate supervisor without fear of being exposed, intimidated or in any way adversely affected and with confidence that the matter would be fully ventilated, checked out and addressed. I hope there will be an ongoing review of this matter because it is an important part of the suite of reforms to deliver openness in how public business is conducted.
In the context of the remarks made by Deputies Howlin and Micheál Martin and the new arrangements the Government has been making for Garda oversight, it seems that the head of an Garda Síochána was very often the recipient of disclosures, which put the whistleblower in an almost impossible position. That was certainly the position in the case to which reference was made. Has the Taoiseach given consideration to whether one of or both the new oversight body and the Garda Síochána Ombudsman Commission, GSOC, the two bodies that will oversee the Garda, will be the appropriate location for the making of protected disclosures? In an area such as the security services where people must work very closely together the making of a complaint may be communicated to others in the organisation, with very difficult consequences for the would-be whistleblower. We must consider how we can engender a structure which is effective and fair and allows an organisation to deal with protected disclosures in the most appropriate manner such that they are heard and and given proper consideration.
The Deputies have asked several questions. The Taoiseach will have approximately five minutes to respond.
The Protected Disclosures Act was and is very reforming and innovative legislation. I think former Deputy Pat Rabbitte, the new chairman of Tusla, originally brought forward the legislation, although it may have been another Deputy. I remember supporting it from the Opposition benches as Deputy Howlin, as Minister, and other members of the previous Government brought it through the Houses. It was a good step forward in reforming our legislation, protecting whistleblowers and ensuring serious allegations were properly investigated. It was and is part of a suite of legislation to improve ethics in business and public office. The Regulation of Lobbying Act which is held up internationally as an example of the proper regulation of lobbying is another part of that suite of legislation. Lobbying is regulated far more properly in Ireland than in other countries. We also have legislation which delimits corporate donations and ensures transparency in that regard. Ireland is very different from the many democracies in which there is no protection for whistleblowers, lobbying is unregistered and very opaque and people can receive significant public or private donations. Some of the steps taken in Ireland in that regard in recent years set a very good example internationally, but we are far from perfect. No country is perfect. We must always get the balance right to ensure whistleblowers are protected, allegations are properly investigated and innocent and decent people and organisations are protected from being falsely accused. The latter has happened, as evidenced by the Charleton tribunal which had a module on Maurice McCabe and another on allegations made by Keith Harrison.
One can see how different those cases were. I do not want to go into that in too much detail but it does demonstrate to us the extent to which we need to support whistleblowers, listen to them, protect them and investigate their claims. We also need to be cautious and sensible enough to know all claims and allegations are not true and that when false allegations and claims are made by people and are propagated in this House and picked up by the media, they can do enormous harm to the falsely accused. We need to get the balance right. We are still learning as a society how to get it right.
There is EU legislation coming down the line. As Deputies will be aware, a European directive on whistleblowing will help to inform our legislation. Problems do arise. Having had a little experience dealing with some protected disclosures, I realise a problem can arise in particular when the protected disclosure is not the only track that the whistleblower is following. I refer to when there is a connected employment dispute or, as is sometimes the case, a connected court case where those concerned are suing for financial damages. It can get very messy where there is a case unfolding, potentially in the courts, or a case with solicitors for financial damages, with a protected disclosure being sent to a public body and with aspects of it being raised in this Chamber and the media. That can create a real mess in dealing with the matter. I wonder whether it would be better if protected disclosures were dealt with in their own right rather than ending up connected to other disputes. That is where it can get extremely difficult indeed. One could have people claiming legal privileges and so on because protected disclosures are also connected to a claim going through the courts. That is where it can get very difficult to manage.
Deputies Howlin and Martin were correct in their remarks on the cultural shift. We do not want the Protected Disclosures Act to become the way people make complaints. It should be something that is used in reserve cases. People should feel they can speak up, make complaints and call out wrongdoing when they see it. They should have confidence that their supervisors and managers will take their complaints seriously and investigate their allegations and that, if not, the individuals above them will deal with them properly.
The statutory review was published in July following public consultation. There were 25 submissions from a variety of public bodies, interest groups and members of the public. The review considered international developments, including comparative analysis of legislation in other countries, and it details some of the early results of the implementation of the Act. Across 212 public sector bodies, 370 protected disclosures were received by the end of 2016. The review shows the Act is viewed as setting a positive example internationally, and it has led broadly to positive outcomes. It highlights some implementation issues that are being considered by the Department of Public Expenditure and Reform, including providing absolute confidentiality to disclosers while balancing fair procedures for other individuals concerned, relating the Act to the GDPR legislation and other employment policies, as I alluded to, and also disclosures that are made through multiple channels. There is also a difficulty associated with how one can investigate anonymous disclosures when there is nobody to interview.
With regard to amendments, the matter is being dealt with by the Minister for Public Expenditure and Reform. Any further amendments to the Acts will be considered in the context of the discussion taking place at EU level on the EU directive on whistleblowers. As I indicated, we will most likely leave the Act as it is but when the European directive is finalised we will use its transposition as an opportunity to amend our own Act.