John McGuinness (Carlow-Kilkenny, Fianna Fail) | Oireachtas source

To add to that, all of us in the House hear about cases that we come across or from individuals that we discuss issues with. That could be to do with any area, such as banking or anything else. We hear from whistleblowers, such as in respect of the tracker mortgage issue, for example. We learn so much about how such things happened, why they happened and so on. This is a great forum to articulate cases and remedies in the context of such cases to see if we can get that into law. That is what I am trying to do here.

To go back to the last question posed and to link it to this one, let us take the example of what happens in a situation where a whistleblower has made the disclosure to the appropriate person and is then encouraged by the person to formalise the disclosure. As the process proceeds over the years and is not dealt with, the matter then enters the legal realm. That is what happens. The agency concerned, and that could be the Department of Education, the Higher Education Authority, HEA, or whatever body, then circles the wagons and God help the poor unfortunate concerned when that happens. The battle starts then and the degrading of the individual, which Deputy Buckley referred to, and the questioning of the integrity of that individual.

Then ill-health comes into it and all sorts of things happen. In the course of this, the person decides he or she has not had any remedy, satisfaction or feedback as to whether the agency or entity being complained about has investigated the issues the person raised and that he or she is just simply being stonewalled. This has happened.

Then, in later years, the person makes a submission, and Deputy Buckley gave an example, to the Minister. The public sees the Minister as being the powerful individual over the entity concerned. A person makes a report and protected disclosure to a Minister but nothing happens. It then goes from the Minister back to the governing entity and then back to the entity the whistleblower is involved in or working for. The outcome is a broken person who is not compensated fully and who has been bullied through the system to try to get a resolution and get it off the table. There is no account as to whether the issues that were raised were dealt with. To this day there are whistleblowers in this category. They are waiting for it to be resolved.

The EU directive states that beyond an explicit prohibition of retaliation provided in law, it is crucial that reporting persons who suffer retaliation have access to legal remedies and compensation. Unless they are willing to pay a fortune and run against the State they do not have access to legal remedies. This is part of the problem. The compensation is always something that will be disputed by the entity about which the complaint has been made. These are existing cases I am speaking about. The directive states the appropriate remedy in each case should be determined by the type of retaliation suffered and that the damage caused in such cases should be compensated in full according to the national law. It states the appropriate remedy could take the form of action for reinstatement in the event of dismissal, transfer or demotion or of withholding of training or promotion. If a protected disclosure causes a person on a combined salary of €150,000 to €200,000 a year to be out sick that person loses all of this salary.

At the end of years and years of battling with the State agency or Department, the remedy does not in any way equate to the problems created for the person who made the protected disclosure in the first place. Neither does it address the issues. Nobody will tell the whistleblowers they were right or wrong or whatever. It is just a battle against the legal team. Only one case, which is from the private sector, ever ended up in court with regard to the legislation on protected disclosures because it costs too much to do it. As we discuss the Bill we are risking throwing all of those individuals in the system under the bus because the system refuses to deal with it. Somebody has to call a halt to this and insist that every Minister who ever took a protected disclosure from anyone should deal with it. I do not want to open the coffers of the State to all of these people but they should be judged and there should be an outcome. The EU directive mentions restoration of cancelled permit, licence or contract and compensation for actual and future losses, past wages and future loss of income, costs linked to a change of occupation, compensation for other economic damage such as legal expenses and costs of medical treatment and for intangible damage such as pain and suffering. None of this is happening. It is shocking.

As legislators we watch how legislation is created and passed in the Dáil and the arguments we all have on either side of the debate. Then we see it being abused. It is just wrong. There are cases like this and I am asking the Minister to look at them and inform himself on how people are being blackguarded and do something about it. I have read from the EU directive and I can tell the Minister I do not know many agencies in the State that are abiding by that law. This is why we will have an argument down the line about this. I do not think any legislation, and this legislation in particular, should be passed without addressing what we have already in the system and without addressing the abuse being heaped on these people on a daily basis. This abuse has nothing to do with the protected disclosure, by the way. It is an abuse of power by the legal teams in the State on either side. We have to ask ourselves why no case has been taken to the courts. What is going on? I can tell the Minister there are broken people watching us debating this and they are looking for an outcome. Some of the outcomes being suggested to them are farcical and wrong and we have to address them.