Dáil Éireann Debate, Thursday - 28 April 2022
126. Deputy Mairéad Farrell asked the Minister for Public Expenditure and Reform his views on whether the inclusion of a stepped procedure for public whistleblowers in the Protected Disclosures (Amendment) Bill 2022 breaches the European Union whistleblowing directive non-regression clause in view of the letter sent to the Oireachtas finance committee by an organisation (details supplied); and if he will make a statement on the matter. [21483/22]
Amharc ar fhreagraThe Protected Disclosures (Amendment) Bill 2022 provides, among other things, for the transposition of Directive (EU) 2019/1937 on the protection of persons who report breaches of Union law ("the Whistleblowing Directive"). The Bill is currently at Report Stage in Dáil Éireann.
It is my understanding that the Deputy's question relates to the provisions in the Bill that amend section 8 of the Protected Disclosures Act 2014 ("the Principal Act"). These amendments provide that a worker employed by a public body who wishes to make a disclosure to a Minister must first have reported either to their employer under section 6 of the Act or to a prescribed person under section 7 of the Act unless the Head of the public body concerned is directly complicit in the alleged wrongdoing or there is an emergency situation where there is an immediate threat to public health or safety.
The Deputy asks if this provision breaches the non-regression clause at Article 25.2 of the Whistleblowing Directive. I am advised by the Attorney General that it does not.
Article 25.2 states that: "The implementation of this Directive shall under no circumstances constitute grounds for a reduction in the level of protection already afforded by Member States in the areas covered by this Directive".
In literal terms this Article does not outright prevent a Member States from reducing the level of protection already afforded but rather provides that the Directive shall not “constitute grounds” for such a reduction. In other words, no Member State can rely on the Directive as a justification for reducing the protection and, in particular, for contending that a greater protection is inconsistent with the Directive. That, however, is very different from preventing a Member State, for policy reasons, reducing the level of protection provided no reliance is placed on the Directive in that regard.
The amendments to section 8 of the Principal Act proposed in the Bill are not changing the rules concerning Ministerial disclosures because of the Directive. The rules are being changed for the simple reason that this channel does not work as intended in its present form. Its operation has been one of the most challenging areas of implementation for the Protected Disclosures Act.
The intent behind the provision of a Ministerial channel under the Act was that in the event that a public body failed to deal properly with an internal report, a worker in that public body would have the fall back option of reporting to the Minister. In practice there has been a tendency for reporting persons to either go to the Minister first or report simultaneously to both their employer and the Minister. This practice of simultaneous or near-simultaneous reporting through different channels was raised as a concern by the Disclosures Tribunal, which recommended that the Oireachtas consider amending the legislation, so that when a report is made, the initial recipient is afforded a reasonable amount of time to take action before the reporting person moves on to an alternative channel.
Furthermore Article 7.2 of the Directive requires Member States to encourage reporting internally in the first instance. The introduction of a requirement that the reporting person should report using one of the other channels first is intended to address this issue.
The Bill in many ways is strengthening and professionalising the Ministerial channel by providing that Ministerial disclosures will be referred to an independent expert in the form of the Protected Disclosures Commissioner which will transmit disclosures to appropriate bodies for assessment and follow up.
