Mr. Liam Herrick:

The Irish Council for Civil Liberties, ICCL, welcomes the opportunity to appear before the committee to discuss this important draft legislation. I am joined by my colleague, Ronan Kennedy, and we thank the committee members for their invitation. The ICCL has previously made written submissions on the draft heads of Bill and I will use this opening statement as an opportunity to offer a summary of the main points of that submission.

Article 19 of the Universal Declaration of Human Rights guarantees the right to seek, receive and impart information and ideas through any media and regardless of frontiers. Article 19 of International Covenant on Civil and Political Rights enshrines the same rights. That article emphasises the freedom applies to information and ideas of all kinds. These key human rights instruments and principles form the basis of the ICCL’s submission on the Bill.

It is worth reiterating from the outset that Ireland enjoys, as Mr. Clarke acknowledged, a high standard of protection for whistleblowers in a comparative perspective. The 2014 Act is often cited in policy and academic literature as being effective for the protection of whistleblowers. EU Directive 2019/1937 offers an opportunity for the Oireachtas to go further in the protection of those who make protected disclosures. Whistleblower should, however, be seen as a regulator of last resort. Effective oversight is a more responsible manner for the state to prevent wrongdoing.

The ICCL has had the benefit of seeing the earlier session. It is important for us to acknowledge that in our work, we see the value of whistleblowers in many areas of policy on an ongoing basis, not least with regard to An Garda Síochána and the technology sector. It is the view of ICCL that a number of opportunities to strengthen the 2014 Act have, unfortunately, been missed in the process of transposition thus far. Steps can and should now be taken to remedy this. Our submission contains a number of practical recommendations to improve the legislation. I will briefly outline them now.

First, it is our recommendation consideration be given to including in the eventual Bill an explicit recognition of the value of whistleblowing outside of the context of employment and work as provided in the UN Convention against Corruption to which Ireland is a party. This could allow the inclusion of categories of whistleblowers such as patients who blow the whistle on wrongdoing in hospitals or parents who might witness wrongdoing in a school. We very much concur with the points made by the Bar in Ireland about the problematic definition of "worker" in the current draft.

Second, we suggest that the existing text contained in the draft heads designed to amend section 10 of the 2014 Act, should be altered to provide protection to those who seek to disclose wrongdoing or information which is in the public interest, regardless of their relationship to the organisation they are reporting.

Third, the ICCL recommends the decision to derogate from the directive by limiting the requirement to establish internal whistleblowing channels for private sector firms with fewer than 49 employees should be reversed. Small companies should be in a position to put in place the requisite policies. The ICCL, which has 13 staff, has such a policy in place.

Fourth, head 8 should be amended in order to ensure legal entities are obliged to investigate and follow up on anonymous disclosures where sufficient evidence is provided to act.

Our final recommendations relate to the proposed disclosures office. The ICCL submits that further consideration should be given to how this office could potentially examine protected disclosures arising outside of work and employment. Failing this, the office should be required to report to the Minister each year on the number and type of disclosures it has received, in addition to the investigative status relating to them.

Finally, the disclosures office should be tasked with providing a one-stop shop for whistleblowing information and support that could complement the existing resources in place, such as those offered by Transparency International Ireland and others. Article 20.3 of the directive contains a specific commitment to the provision of psychological support for whistleblowers and this should be included in the eventual legislation. It is the view of the ICCL that a commitment to resourcing these supports, as well as the provision of appropriate legal aid, is essential.

In choosing to derogate from a number of areas of the directive, the Oireachtas might pass up the opportunity to set a gold standard for protected disclosure internationally. We are choosing, unfortunately, to ignore a number of key provisions of international conventions to which Ireland is a party, including the UN Convention against Corruption, the International Covenant on Civil and Political Rights and the European Convention on Human Rights. Every effort should be made to ensure that the final version of the Bill respects those conventions to which Ireland is a party and is amended by this committee and the House in such a way as to ensure that the right to freedom of expression is to the forefront of an enhanced whistleblower regime in this jurisdiction.