Mr. Colin Menton:

I thank the committee for inviting the Department to discuss the general scheme of the protected disclosures (amendment) Bill. The primary purpose of this legislation is to amend the Protected Disclosures Act 2014 to provide for the transposition of the EU whistleblowing directive. The directive is a significant piece of EU legislation. It is specific about how protected disclosures are supposed to be managed and, in many areas, member states transposing it have limited discretion. Nevertheless, in the context of the discretion that is available and in considering how to transpose the directive, we have also taken the opportunity to reflect on how our domestic legislation has been operating and consider what can be done to improve it.

The 2014 Act was innovative legislation for its time. It drew heavily from recommendations of the Council of Europe, the G20 and the OECD, among others, as regards best practice in legislating for the protection of whistleblowers. At the time, Ireland was only the sixth country in the EU to enact a comprehensive whistleblower protection law and the Act continues to be ranked highly in international comparisons for the protections it offers.

Of course, what matters most is not necessarily what is written in the legislation, but how that legislation operates in practice. In this regard, the approach we have taken to developing this Bill has been informed by the submissions that were made to the public consultation on the transposition; the Act's statutory review, which was published in 2018; and direct consultations we have had with a range of stakeholders, including public service managers responsible for handling protected disclosures in their organisations, prescribed persons, employers groups, academics and Transparency International Ireland, among others.

One of the principal issues with the 2014 Act is that it is largely silent about what is expected of employers, prescribed persons or other recipients with regard to what they are supposed to do when they receive a protected disclosure. This new legislation imposes a strict obligation on recipients to acknowledge receipt of protected disclosures, to follow up on the information reported and to give feedback to the discloser within a specified timeframe. This will go a long way to ensuing the disclosures are dealt with properly and promptly and that disclosers are reassured that their concerns are being dealt with seriously by being kept informed of what is happening.

We are proposing the establishment of a protected disclosures office in the Office of the Ombudsman. This will make it easier for workers to report wrongdoing to prescribed persons. With more than 100 prescribed persons, it is not always clear to workers which prescribed person they should report to. The protected disclosures office will have a key role in directing reports to the right place. The office will also cover any gaps in coverage by following up on disclosures directly if there are no appropriate prescribed persons to report to for a particular matter. Prescribed persons will also be subject to the obligation to acknowledge, follow-up and give feedback in respect of all disclosures they receive. The protected disclosures office will also provide expert support to Ministers in respect of any protected disclosures they receive.

The proposed legislation will further strengthen the position of whistleblowers who are penalised and have to resort to the WRC or the courts for redress in that the burden of proof will now lie with the employer to prove any alleged act of penalisation did not arise as a consequence of a protected disclosure. We are also extending the provision of interim relief beyond dismissal to cover other acts of penalisation, so the courts will be able to intervene more quickly to protect whistleblowers from penalisation.

All of this will make the legislation stronger. As I have said, it is the implementation of the legislation that matters and we recognise that we need to do more in this area. We are taking steps in parallel with developing the legislation to drive better implementation of the Act. We are undertaking a complete overhaul of the statutory guidance on the Act to take into account the changes the new legislation will bring, to incorporate lessons learned, and to provide better and more detailed advice on key areas of implementation that arise frequently. We are also developing guidance to assist the private sector in meeting the new obligations for private employers with 50 or more employees to have formal whistleblowing channels. This will be made available shortly after the Bill is published. We will refresh the procurement framework for training services for public sector bodies to ensure that staff designated to receive and follow up on protected disclosures are professionally trained to better deal with whistleblowers in their organisation. We also intend to further develop and enhance existing networks of protected disclosures managers across the public service to facilitate exchange of best practices and address common implementation issues as they arise.

Strong legislation is an important component in any ecosystem designed to support and protect whistleblowers. It is also crucial to have the right organisational culture that will encourage workers to speak up without fear of reprisal as a number of other contributors to the committee’s pre-legislative scrutiny of the general scheme have highlighted.

Whistleblowers play a vital role in bringing wrongdoing to light. For example, the Association of Certified Fraud Examiners has found that 43% of workplace fraud is detected by way of tip-offs, mainly from employees, compared with just 15% by internal audit and 2% by law enforcement. In Ireland, four out of every five workers who report wrongdoing suffer no retaliation as a consequence of doing so, based on research undertaken. However, where retaliation occurs, as this committee has seen, it can have devastating consequences for whistleblowers and their families. The case for strengthening the legal protections for whistleblowers is clear and this Bill represents a step in the right direction in this regard. My colleagues and me are happy to answer any questions the committee has about the proposed legislation. We welcome its contribution to the debate.