Michael McGrath (Cork South Central, Fianna Fail) | Oireachtas source

I move amendment No. 5:

In page 15, to delete line 4 and substitute the following: "(11) Subject to subsection (12), section 6A shall apply to a report made to an employer.

(12) Where-

(a) a worker, who is or was an employee of a public body, makes a disclosure of relevant information to the public body, in the manner specified in this section, before the coming into operation of section 8of the Protected Disclosures (Amendment) Act 2022, and

(b) the public body-

(i) has established procedures under section 21 (being that section as it stood before the coming into operation of section 28of the Protected Disclosures (Amendment) Act 2022), and

(ii) has not completed its consideration of such disclosure in accordance with those procedures before the coming into operation of the said section 8,

then, where the worker so requests in writing, the public body shall, no later than 3 months after the date of such request, provide information to the worker on any actions taken or to be taken by that public body in relation to the relevant information concerned."."

In dealing with the amendment, I have an opportunity to update the committee on the work we are doing on retrospective application of the Bill. This was a key issue raised in the course of pre-legislative discussion and it also was raised by many speakers on Second Stage in the Dáil. I gave a commitment to look further into the issue.

Amendment No. 5 provides that where persons who are employed in a public body have made a protected disclosure prior to this Bill coming into force, they shall be entitled to request feedback from their employer as to what action was taken on foot of their report. This implements recommendation No. 27 of the committee's pre-legislative scrutiny report. Following discussions with the Attorney General, we have concluded that it will be possible to provide for retrospective application of the Bill for workers who have reported prior to this legislation's enactment but have suffered retaliation after enactment. As I said, this is in line with the recommendation in the committee's pre-legislative scrutiny report. In addition, I have asked the Attorney General to see whether we can go further in this regard, particularly to consider whether retrospection might be possible for workers who have both reported and suffered penalisation before this Bill is enacted but have not yet applied to the Workplace Relations Commission, WRC, or the courts for protection. This is a particularly difficult legal question and the Attorney General has asked for more time to consider its implications.

Accordingly, I have decided to defer proposals for amendments in this regard to Report Stage in order that we have the opportunity to examine and discuss the full suite of possible enhancements that can be made to the legislation. As I said, I am committed to providing for retrospection for workers who have reported before enactment but suffered penalisation after enactment, which is what the committee sought in its pre-legislative scrutiny recommendations. In addition, I am anxious to go further than that. The delay in bringing forward amendments, which we will do on Report Stage, is to see whether we can, in fact, go further than the committee has recommended. I have no doubt we will discuss this issue further on Report Stage. I want to ensure we can stretch the boundaries of what is possible in regard to the retrospective application of this Bill to persons who have made disclosures, who may well have suffered detriment and penalisation and who are not satisfied with the outcome of the process in which they may have been involved. It is a complex area and retrospective application of legislation is always difficult. I have conveyed my view to the Attorney General that this is a very important issue on which I would like to make progress. He is going to do all he can to see whether that is possible and, for that purpose, he has asked for time. I expect to bring forward additional amendments on the retrospective application issue on Report Stage.