Dáil Éireann Debate, Wednesday - 13 July 2022
190. Deputy Catherine Murphy asked the Minister for Public Expenditure and Reform the way in which he represented that there is a constitutional impediment to extending the retrospective benefit of the reversal of the burden of proof with respect to causation to whistle-blowers who have cases before the courts (details supplied). [38316/22]
Amharc ar fhreagra196. Deputy Mairéad Farrell asked the Minister for Public Expenditure and Reform if there is no constitutional justification for failing to provide for the extension of the evidential protections of European Union directive 2017/1937 reversal of the burden of proof with respect to causation to those whistle-blowers with litigation currently before the courts (details supplied); and if he will make a statement on the matter. [38456/22]
Amharc ar fhreagra197. Deputy Mairéad Farrell asked the Minister for Public Expenditure and Reform if he will examine a matter (details supplied). [38457/22]
Amharc ar fhreagra198. Deputy Mairéad Farrell asked the Minister for Public Expenditure and Reform his views on a matter (details supplied). [38459/22]
Amharc ar fhreagra211. Deputy Mairéad Farrell asked the Minister for Public Expenditure and Reform his views on a case (details supplied). [38783/22]
Amharc ar fhreagraI propose to take Questions Nos. 190, 196, 197, 198 and 211 together.
I am not in a position to comment on individual cases before the courts.
The Protected Disclosures (Amendment) Bill 2022 provides for a significant overhaul of the framework of legal protections for whistleblowers provided by the Protected Disclosures Act 2014. It also provides for the transposition of Directive (EU) 2019/1937 on the protection of persons who report breaches of Union law. The Bill provides for enhanced protections, notably:
- the extension of the existing protections of the Protected Disclosures Act 2014 to a wider cohort including volunteers, shareholders, persons belonging to the administrative, management or supervisory body of an undertaking, and persons going through a recruitment process or in pre-contractual negotiations,
- reversal of the burden of proof during proceedings at the Workplace Relations Commission and the courts,
- access to interim relief at the Circuit Court against penalisation, and
- providing for criminal penalties for penalisation.
Following a recommendation in the pre-legislative scrutiny report and at Second Stage in the Dáil in February of this year, I signalled my intent to consider how to make provision for retrospective protection where possible. At each stage when this Bill has been considered, I have updated members of the House on progress in this regard, and my commitment to go as far as possible to provide retrospective protection, where possible, to persons who have reported relevant wrongdoing within the meaning of the Act prior to the Bill's forthcoming enactment. In light of my instruction to provide retrospective protection as broadly as possible, the amendments required careful consideration by my officials in conjunction with the Office of the Attorney General. The amendments introduced at Committee Stage in the Seanad fulfil the commitment I gave to the Houses on this matter.
The amendments I have introduced provide that a worker who reports a relevant wrongdoing before the Bill is enacted but suffers penalisation after the Bill is enacted is entitled to the enhanced protections of the amended legislation, including the reversal of burden of proof in civil proceedings at the Workplace Relations Commission (WRC) and the courts.
The amendments further provide that a worker (as defined in the 2014 Act) who reports a relevant wrongdoing and suffers penalisation before the Bill is enacted but has not initiated proceedings at the WRC or the courts will be entitled to the reversal of the burden of proof in such proceedings. I am satisfied in light of my Department’s engagement with the Office of the Attorney General that it is not possible to apply those changes to existing proceedings, since that would involve interfering with already existing litigation. To seek to apply new rules to cases where proceedings have already issued would be unfair and give rise to legal issues. This is especially so where there is already a Court decision in place.
