Brendan Howlin (Wexford, Labour) | Oireachtas source

I have reflected further since the Deputy made this point previously. The effect of amendment No. 15 would be to remove section 16(2)(a) which states the requirement to protect the identity of the maker of the disclosure set out in section 16(1) does not apply if "the person to whom the protected disclosure was made or referred reasonably believes that the person by whom the protected disclosure was made does not object to the disclosure of any such information". The effect of amendment No. 16 would be to remove section 16(2)(b) which states the requirement to protect the identity of the maker of the disclosure set out in section 16(1) does not apply if:

the person to whom the protected disclosure was made or referred reasonably believes that disclosing any such information is necessary for -(i) the effective investigation of the relevant wrongdoing concerned...

Having reflected again and reread the Second Stage debate, my understanding is that amendment No. 15 reflects the Deputy's concern that section 16(2)(a) effectively provides a holder of protected disclosure information with unrestricted permission to allow the identity of the maker of the disclosure to be revealed. I am also taking it that amendment No. 16 reflects the same concern.
Section 16(1) imposes a duty on the recipient of a protected disclosure and any person to whom the protected disclosure is referred in the performance of his or her duties - I underscore this point - to "take all reasonable steps to avoid disclosing any information that might identify the person by whom the protected disclosure was made". It is extremely important to point out that the imposition of such a duty could never, from a practical or pragmatic perspective, be made absolute.
Section 16(2) sets out the necessary practical and pragmatic circumstances under which the duty to protect the identity of the maker of the disclosure does not apply. Bearing in mind that whistleblower complaints will require investigation by the employer, it must be recognised that, as a matter of practicality, such an investigation will, in many cases, result in circumstances where the duty to maintain the identity of the maker of the protected disclosure becomes unreasonable if a valid investigation is to happen. The simplest and most pragmatic reason of all for revealing the identity of the maker of the protected disclosure is on the basis that the recipient or other handler of the information that is disclosed has a reasonable belief the original maker of the disclosure does not object to the revelation of his or her identity. The recognition of these circumstances should not be taken, however - this is the point I want to underscore for the Deputy - to mean that the holder of the disclosure information is given carte blanche to disclose the identity of the maker of the protected disclosure. He or she must, by law, under section 16(1), take all reasonable steps to avoid disclosing any such information. With this in mind, section 16(3) makes it clear that a failure to comply with a duty to protect the identity of the maker of the protected disclosure "is actionable by the person by whom the protected disclosure was made if that person suffers any loss by reason of the failure to comply". Not only is there a legal obligation to avoid disclosure, there is a mechanism for the person to take action against the person who discloses his or her identity.
I am satisfied that these provisions will provide a significant brake on any view that might be taken that it is simple or frivolous to divulge the identity of the maker of a protected disclosure. It could, of course, almost go without saying the simplest way for the recipient or other handler of the protected disclosure to determine how the revelation of the identify of the maker of a protected disclosure of information would affect that person is simply to confirm it directly with the person involved. The handler could simply ask the question.
While I do not propose to accept the amendments, I acknowledge that the issue of the protection of identity is central. Recent whistleblowing scandals have highlighted it as a central issue. We need to separate as far as possible the messenger and the message. The provision in relation to confidentiality included in the Bill has been the subject of a substantial amount of work designed to strike that really difficult balance between safeguarding the identity of a whistleblower and other significant public interests and to ensure the issues are properly ventilated and examined. I wish, however, to take the opportunity before the passage of the Bill and in the light of the points made by Deputy Mary Lou McDonald to consider the issue of confidentiality further. Again, it is one of those issues I have thought about long and hard, but I do not know how to improve the balance. I will consider it further between now and Regard Stage, if the Deputy so wishes.