Brendan Howlin (Wexford, Labour) | Oireachtas source

I have examined the two amendments in which the Deputy proposes to delete the words "trade union official" from the definition of a legal adviser and create a new area for the giving of advice. I thank her for the amendments and realise this matter was raised on Second Stage.

The Deputy is aware that under section 9, as drafted, a worker has the protections provided by the legislation in circumstances where he or she makes a disclosure or charge to out the wrongdoing while obtaining legal advice from a barrister, a solicitor or a trade union official. I understand from my good trade union colleagues that they give legal advice because people come to them to ask how they should advance in unfair dismissal cases or how to deal with bullying in the workforce and they explain the law to them. I am advised by the Attorney General that this amounts to giving legal advice, which is why I have crafted the section in this way. Its purpose is to provide a safe place for a potential whistleblower to allow him or her to determine the basis of informed and expert advice on where he or she would stand if he or she progressed to making a disclosure to his or her employer or otherwise. In particular, potential whistleblowers may wish to assess with their chosen advisers, either legal advisers or trade union representatives, whether their disclosures would meet the conditions set out in the legislation for them to be protected disclosures and if they would be provided with the safeguards inherent in the legislation. I have sought to ensure the legislation is as clear and straightforward as possible, which is important. However, I appreciate, given the complexity of the issues likely to be involved, the potential implications and impact of the steps a potential whistleblower would be taking, that it is likely to be the case in many instances, particularly where a worker is apprehensive that he or she might be penalised or suffer detriment for his or her actions, that external expert advice would be required.

The effect of amendment No. 6 would be to restrict the protection provided in section 9 to cases in which legal advice had been obtained from a barrister or a solicitor only. If we were to take out the reference to a trade union official, legal advice from a solicitor or a barrister only would have protection under the Bill. I do not believe that is what the Deputy intends in respect of a worker taking the advice of a trade union official or a person authorised by a worker's employer on a disclosure in accordance with the procedure prescribed by the worker's employer. The nub of the issue, therefore, is whether advice given by a trade union official is legal advice. While reflecting on the amendment, it occurred to me that we needed to avoid a situation where a potential whistleblower could not or would be afraid to take expert or informed advice on account of a concern on the part of a trade union official that he or she was not offering what would be regarded in a strict legal sense as legal advice commensurate with that provided by a solicitor or a barrister. Deputies will be aware of this dilemma from their constituency work. I have rehearsed some of the instances I have encountered in discussions with my officials. There are times when I proffer advice on the law, although I am not a lawyer. To safeguard myself I always advise people that they may wish to take independent legal advice on a matter but that in my experience a given approach is the way to go. That is what trade unions officials and shop stewards sometimes do as a matter of routine, especially those familiar with the Unfair Dismissals Act. As a matter of routine, they represent clients or members before tribunals and so on, a matter in which they would be expert. Are they giving legal advice or do they have to be a barrister to give it? My advice is that a person need not be a barrister to give legal advice.

The definition of what constitutes legal advice is important. In the light of the foregoing and subject to the committee's approval, I propose to consider the amendments further with a view to clarifying the position on the giving of formal legal advice.

When I went through the provision in detail this morning with my officials, from the perspective of Deputy McDonald's proposal, the concern arose that there might indeed be some confusion in our placing advices given by a trade union official together with legal advice. It might be a worry for officials to think they are giving actual legal advice. I hope I am not being too lawyerly in my explanation.