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

I thank the Deputies for raising this matter. The issue we are trying to address here is that the system currently does not work as intended. We are trying to address that situation. We are not preventing people from reporting concerns to a Minister. In line with accepted best practice and in the spirit of the directive, we are merely requiring that a report should be made either to the person's employer or to a prescribed person first. There are exceptions for emergencies or if the head of the public body concerned is directly complicit in the alleged wrongdoing.

For example, if an official in my Department at a level below that of Secretary General had concerns about the Secretary General, that person could come to me under the Bill as proposed. That is absolutely fit and proper. Otherwise, such concerns should come up through the line. I think it is fair to say that the operation of the ministerial channel has been one of the most challenging areas of the implementation of the Act currently. The intent behind the provision of a ministerial channel under the Act was to ensure that in the event of a public body failing to deal properly with an internal report, a worker in that public body would have the fallback option of reporting to the Minister. In practice, there has been a tendency for reporting persons to either go to the Minister first or report simultaneously to their employer and the Minister.

This practice of simultaneous or near-simultaneous reporting through different channels was raised as a concern by the Disclosures Tribunal, which recommended that the Oireachtas consider amending the legislation, so that when a report is made, the initial recipient is afforded a reasonable amount of time to act before the reporting person moves on to an alternative channel. Additionally, Article 7 of the directive requires member states to encourage reporting internally in the first instance. The introduction of a requirement that the reporting person should report using one of the other channels first is intended to address this issue, which is provided for within the directive. We believe that allowing the Minister to refer disclosures to an independent expert - who will, as the members are aware, be the protected disclosures commissioner we are proposing to establish under the auspices of this Bill – with the requisite powers to take appropriate action as required, will deal with many of these issues and lead to protected disclosures being addressed in a more professional manner and to better outcomes, particularly for whistleblowers who report, and should appropriately be reporting, to the Minister.

It may well be the case that the protected disclosures commissioner, having considered a protected disclosure that has been referred to him or her, will send that complaint to the Minister. That is one possible outcome. What we do not want to happen is a situation where there is a lack of clarity as to who exactly is responsible for dealing with a protected disclosure. Often, a disclosure can go to multiple parties, including the Minister. Therefore, a clear process must be in place regarding what happens when a protected disclosure comes in and who deals with it. Equally, if such a disclosure does come into the Minister, it should be clear how the Minister should deal with it. That is what we are seeking to address in the provisions of this Bill.