Oireachtas Joint and Select Committees
Wednesday, 22 September 2021
Joint Oireachtas Committee on Finance, Public Expenditure and Reform, and Taoiseach
General Scheme of the Protected Disclosures (Amendment) Bill 2021: Discussion
I thank Deputy Mairéad Farrell for nominating me as Acting Chairman. Our Chairman, Deputy McGuinness, is momentarily delayed so I have been asked to sit in until he arrives.
I remind members to ensure their mobile phones are switched off. This is important as it causes serious problems for broadcasting, editorial and sound staff. Apologies have been received from Deputies Steven Matthews and Pearse Doherty.
I now invite the witnesses to join the meeting remotely from Kildare House. Once members and witnesses join the meeting via MS Teams, they should assume that they can be seen on screen video, whether speaking or not. Members are also reminded to ensure their microphones are muted when they are not contributing to the meeting.
The purpose of today's meeting is to engage in pre-legislative scrutiny of the Protected Disclosures (Amendment) Bill 2021. I welcome members and viewers, who may be watching our proceedings on Oireachtas TV, to the public session of the Oireachtas Joint Committee on Finance, Public Expenditure and Reform, and Taoiseach. I am very pleased to say that we are joined by four witnesses: from Raiseaconcern, Mr. Philip Brennan, Mr. John Wilson and Mr. Noel McGree and, from Whistleblowers Ireland, Ms Julie Grace. The format is that each of the witnesses will make some brief opening remarks and this will be followed by a question and answer session with the members.
Members and witnesses are reminded that the meeting must conclude within two hours. The evidence of witnesses physically present or who give evidence from within the parliamentary precincts is protected, pursuant to both the Constitution and statute, by absolute privilege. They are reminded of the long-standing parliamentary practice that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable or otherwise engage in speech that may be regarded as damaging to the good name of the person or entity. If their statements, therefore, are potentially defamatory in regard to an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative that they comply with any such direction.
Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official, either by name or in such a way as to make him or her identifiable. I remind members of the constitutional requirement that members must be physically present within the confines of the place where Parliament has chosen to sit, namely, Leinster House or in the convention centre in Dublin in order to participate in public meetings.
I now invite Mr. Brennan to make his opening remarks. He will be followed by Ms Grace, Mr. Wilson and Mr. McGree.
Mr. Philip Brennan:
I thank the Cathaoirleach and members of the committee for the opportunity to contribute to the pre-legislative debate on the Protected Disclosures (Amendment) Bill 2021. Raiseaconcern is a small Irish-owned, Irish-based professional organisation that works with private sector employers and public bodies in the prevention, detection, investigation and remediation of workplace wrongdoing. As our name suggests, we specialise in the area of whistleblowing, or employee disclosure, as we prefer to call it. We have practical experience of dealing with employers and workers in this area.
Committee members will appreciate that the content of our work, who we work for and the identity of the disclosers we engage with is extremely confidential, so they will understand why I will not be in a position to discuss specific cases with them. However, as the committee considers and debates the first set of amendments to the Protected Disclosures Act since its enactment in 2014, I welcome the opportunity to share some views with the committee and to take questions.
Many elements of the adoption of the EU whistleblowing directive into Irish law are non-discretionary, so my submission only covers those limited areas where there is discretion under the directive or where members have general discretion as legislators to go beyond the provisions of the directive. In all, we make four recommendations on the general scheme of the Bill. The first relates to grievances, which is dealt with in head 5 of the general scheme.
Mr. Philip Brennan:
It is proposed to insert a provision into the Act that matters concerning interpersonal grievances will not come within its scope. While we agree with the intent, we urge caution. In our experience, many employers regard claims of bullying, harassment and sexual harassment as interpersonal grievances. We encourage the committee to ensure that in drafting the Bill to exclude interpersonal grievances there is no ambiguity, and that it is explicit that it does not exclude disclosures regarding bullying, harassment and sexual harassment from protection.
The second area I wish to cover is anonymous disclosure, which is dealt with in head 8. It is proposed to explicitly afford protection to workers who make anonymous disclosures if they are subsequently identified and suffer penalisation. It is also proposed to avail of a "carve out" provided for in the directive that recipients of anonymous disclosures are not obliged to accept or follow up on such disclosures. It is our experience that concern about their identity being revealed is the single biggest fear that disclosers have and is one of the most significant deterrents to disclosure. This is why Raiseaconcern provides the service of being a confidential recipient. We have set out in our submission why we see no logic or justifiable reason as to why disclosures by named workers must be accepted and followed up by employers, whereas in contrast, the same obligation does not apply to disclosures made by anonymous disclosers.
The third area I would like to deal with is internal reporting channels. That is dealt with in head 9. It is proposed that the existing legislation will be amended to require all employers with 50 or more employees to establish internal reporting channels. While it is appropriate to minimise the compliance burden on micro or small enterprises, we feel there is no logic in excluding them from the requirement to put simple processes in place for receipt of employee disclosures. The risk of wrongdoing exists in micro and small enterprises just as it does in medium and large ones.
In the operation of other aspects of legislation, Ireland does not operate exemption or light-touch provisions for micro or small enterprises. For example, as a small enterprise we must adhere to the same tax administration provisions, health and safety provisions and environmental protection provisions as medium and large enterprises. Raiseaconcern's view is that our legislation should promote a workplace environment where all enterprises, small as well as big, act legally and properly. The Government is required under Article 20 of the directive to provide support on the design of policies and procedures and on their operation.
There is nothing to prevent Government bodies, trade associations, voluntary bodies and others from making template policies, procedures and processes available at low or no cost to micro or small enterprises, thereby eliminating or at least minimising the cost of compliance.
The fourth area we want to cover concerns ministerial reporting channels, dealt with in head 11. I am sure it is a provision with which the committee is well familiar. The Protected Disclosures Act 2014 currently permits disclosers who are employed by a public body to make disclosures to a Minister of the Government in certain circumstances. The general scheme of the Bill proposes to change this and introduce a range of new conditions that must be met for such disclosures, including that such disclosures will be referred to the new protected disclosures office in the Office of the Ombudsman. Raiseaconcern can understand that there are administrative benefits to having a central point in a protected disclosures office to which Departments can refer worker disclosures for evaluation and handling. However, the Bill proposes to introduce new and increased hurdles that disclosers must meet in order to make a disclosure to a Minister. This seems to narrow the ability of disclosers to claim protection and this seems regressive. We encourage the committee to consider this further.
There are areas where the Bill might be improved. Our submission sets down a further matter that the committee might consider. Where recipients of disclosures find on investigation that wrongdoing has occurred, we feel the legislation should require that the broader and underlying root causes that prevailed which facilitated or enabled the wrongdoing to take place should be identified. This should include why the wrongdoing was not identified by others before the disclosure was made by a whistleblower. It is only by completing this final step and taking remedial action to address the root causes that similar problems can be avoided at a general level in future. There should be sharing of the learning, and in the case of public bodies, there may be scope to incorporate provisions in this regard into annual reports. The protected disclosures office could also play a vital role in this, which would be in the public interest.
On the question of possible implications or consequences arising from the legislation, in our submission Raiseaconcern has set out the reasons adequate and appropriate resourcing of the new protected disclosures office in the Ombudsman's office will be crucial to its success. The same applies to adequately resourcing the functions of "prescribed persons" on whom significant additional responsibilities will now fall.
The proposed amendments to the Protected Disclosures Act will strengthen protection and redress for those who disclose wrongdoing and help ensure their disclosures are acted upon and that they receive feedback. It will also provide balance by ensuring due process is afforded to those who are the subject of disclosures. However, passing legislation alone is not enough. It is the view of Raiseaconcern that this needs to be accompanied by a Government-backed initiative to promote a positive attitude towards this whole area. Ireland should promote a culture where we encourage, as well as offer, legislative protection to workers who raise concerns about workplace wrongdoing. This culture would create the environment within which Ireland’s national and public interests would be best served by making it a better place to work, a better place to do business and a better place with which to do business. We encourage the Government to align this amended legislation with a public awareness programme promoting such a culture. We thank the committee for its time.
Ms Julie Grace:
I thank the committee for the invitation to address it today. I am here to faithfully assist this committee and outline my experience of the practices of the State in dealing with my application under the Protected Disclosures Act 2014. Having walked that walk for justice, I can attest to this committee that there many failings in the implementation of the existing Act and the practices are greatly at variance with the theory.
The circumstances of my working life in a local authority forced me to "blow the whistle" on and refuse to participate in serious wrongdoings. These wrongdoings had catastrophic consequences for the abused. On 22 June 2016, the day before the Brexit referendum in the UK, I submitted a protected disclosure application under the Protected Disclosures Act 2014 to the relevant Minister as per the Act. That was done in person in Leinster House and he assured me it would be dealt with expeditiously. Attached to the protected disclosure application I provided a copy of my published book, Abuse of Power: Because Councils Can, to the Minister, which outlines relevant particulars supporting my application. The committee should be assured that no line in my book or the veracity of any statements I have made have been challenged in the past seven years by any person or entity because I am telling the truth.
Six months later in December 2016, the Minister telephoned me and related that his Department did not yet have policies or procedures in place to administer my protected disclosures application he but asked me to trust him and that he would deal with it fairly. I believed I was entitled to the remedy sought in the application at that stage and should not have been penalised further by delays for the admitted failure of the Government to have administrative processes in place for legislation that was already two and a half years in existence. It is clearly set out in that Act that a Minister is a "relevant person" to receive protected disclosures.
The elephant in the room about the Protected Disclosures Act 2014 is that whether by accident or by design, it is not time-bound. "What has no timeline is farcical" is a line I have heard repeated by a Minister with respect to another topic and it is a very pertinent point. Under this current regime, it seems no resolution needs ever to emerge. Unfortunately for bona fide whistleblowers who expect a fair process in a timely manner with an outcome advised to them, I can only say that since I submitted my protected disclosure application to the relevant Minister in June 2016, the entire protected disclosures process has failed for me.
Not alone was I deprived of a timeline but I was further deprived of communications, including the determination, which I understand was made in May 2018. The then Minister wrote to me and told me to wait for the outcome. I am still waiting and he has gone from the Oireachtas since. The current Minister issued the same response in a parliamentary question three years later in 2021. I was told to wait.
The Minister states he does not have any role of governance or oversight or role in the way that the public funds allocated by him is spent or misspent by a local authority. The Minister confirmed to me in writing that the chief executive officer of a local authority can use the public resources in any way he decides. Despite this fact, the application I made in good faith to the Minister was put before the same local authority for its investigation of its own actions. This removed any possibility of a fair process for me due to the overriding conflicts of interest.
The protected disclosures legislation has been used against me. While I was working in good faith, supplying the documentation and evidence to support my application, the Minister delegated the task of investigation back to the perpetrators. Years have gone by again. This is the perversity of administration that I experienced under implementation of the Protected Disclosures Act 2014. Having exhausted all avenues in my home country and suffering denial of justice and infringement of my fundamental rights, I submitted an application to the petitions committee of the European Parliament, PETI, for assistance. This was heard on 13 April 2021, and I have submitted the original EU broadcast stream of petition to the clerk of this committee to share with you for more complete information.
The petitions committee sent my petition to the European Commission directorate of justice for investigation. It returned with comment that it was "a very well substantiated" application, but as of this moment, until the Irish Government has transposed the EU directive into Irish law, the Commission cannot pass a judgment on the failings of the whistleblower legislation just yet.
It is important that this PETI committee has taken interim actions while we are all awaiting transposition of the 2019 directive. It has kept my European petition open, referred my petition to the legal affairs committee for investigation and written to the Irish Department of Justice seeking information about progress of the Irish Government in implementing the EU whistleblower directive.
When the Irish Department of Justice received the letter from the EU petitions committee chair, it declined responsibility and passed it to the Department of Public Expenditure and Reform. It in turn declined responsibility for it and passed it onto the Department of Housing, Local Government and Heritage, the Minister of which was the recipient of my original protected disclosure application.
How can an ordinary citizen like me have faith in this system?
I did not choose to become a whistleblower. I was pushed out of a career in the local government sector at 52 years old because I believed in my respect for the law, in adherence to standards and governance, and in my refusal to join others in abusing the rights of citizens. All of these details are set out in my 2014 published book Abuse of Power: Because Councils Can. As a public servant, I refuse to be corrupt.
I went to the High Court in 2010 and had my good name reconfirmed. All of my evidence was taken at its highest point. The court found that I had made a recommendation for the abused tenant to be transferred to alternative accommodation, as was her legal right. Council officials denied this for years until then. I believe that woman would be alive today if she had not been so abused. They never apologised to her family or to me.
The Minister delegated responsibility from my protected disclosure application to the same local authority. Is there any political will for a fair outcome for people like me? My High Court action in 2010 uncovered an absence of legislation governing recruitment in local authorities. There is a serious public interest element to this finding, the ramifications of which highlight scope and potential for mass patronage and nepotism in local authorities in Ireland. Is this democracy?
It is contended by some academics and commentators that individuals who blow the whistle are courageous. In the absence of open support and backing from our elected politicians, I believe whistleblowing will persist in being a precarious route for individuals standing against corruption. It continues to mean risks, costs and suffering for honest workers of conscience and, perversely, without any negative career consequences for the perpetrators. I do not dare to doubt the bona fides of anyone here today, but in truth, we all know that in the real Ireland any legislation is only as good as its enforcement. In my lived experience, this is primarily due to the lack of political will to enforce the legislation that is already there, with or without a timeline.
I am not looking for something that I am not entitled to. The remedy in the Protected Disclosures Act 2014 is minuscule when compared with the actual cost to me for my honesty and integrity. It does not even consider the whole retaliation element. However, I want closure. I have copied the committee in my original protected disclosure application to the Minister. I have explicitly waived all rights to anonymity from the outset.
Doing the right thing, as a public servant, and blowing the whistle on wrongdoing did not present the biggest challenge for me. What has presented extreme challenge over the past 17 years is the victimisation, penalisation and retaliation that I have endured and suffered, coming from actions of individuals who are protected inside State-funded organisations and who are personally cosseted by the public purse. It is unfair that they are shielded from all accountability for their actions and that they are enabled to engage in malicious strategies to delay, to deny and to wait for the whistleblower to die. At 70 years of age, this is unsavoury at best.
I have many concerns about the transposition of the EU directive into Irish whistleblowing law, which I hope the committee can explore further. I am happy to answer any questions. By the way, I submitted 16 documents to support this statement. They comprise letters to and from the Department. It shows the chronology of my application, and how the Protected Disclosures Act 2014 does not work for the whistleblower. It is a shame that this these documents were censored from the committee because full information is a requirement to move forward and to seriously do what electorate expects, that is, to represent everybody and to leave some space for the honest, conscientious worker.
I thank Ms Grace for her contribution. I read your book Abuse of Power: Because Councils Can. I want to commend you on it. I followed your course of action through to the European Union with the help of Luke Ming Flanagan, MEP, and others. Again, I commend you on that. I cannot disagree with what you said in your contribution. I will address the issue of those documents that have not appeared before members. However, I should say that an issue arises where the documents include the names of individuals. However, if the documents and the named individuals are part of public information, then we will address that today. Ms Grace can rest assured of that. We will now proceed to Mr. John Wilson.
Mr. John Wilson:
I thank the Chair and members of this committee for the invitation to address them. Some 39 years ago today, on 22 September 1982, I walked into the Garda Síochána College in Templemore, County Tipperary, as a shy, insecure teenager. When I left there six months later, I did so as a confident and highly motivated young man, ready to fulfil my role as a member of An Garda Síochána. I am sure that I was not the only one who felt like I did on that day, as we waited with anticipation to be sworn in as members of An Garda Síochána.
After the swearing-in ceremony, a senior Garda officer addressed us and told us that we were now members of the Garda family; that we could only depend on each other for support; and that it was our duty to take care of each other as members of the Garda family. Therein lies the problem. That mantra led to the toxic culture of loyalty before honesty that has existed within An Garda Síochána since its foundation and still exists today. I am sure that this culture of protecting the organisation and one's colleagues at all costs is not unique to An Garda Síochána, but there is a major difference between blind loyalty to a colleague who has made a genuine mistake and to a colleague who is engaged in criminality. Sadly, in my experience, these lines are blurred.
In the aftermath of making a statement of complaint against a Garda colleague who said that “what Maurice McCabe needs is a bullet in the head”, to when I subsequently made complaint to the Garda confidential recipient Mr. Oliver Connolly about the corrupt termination of lawfully issued fixed charge penalty notices by a senior Garda officers, I went from being a respected Garda colleague and an elected Garda Representative Association, GRA, district representative, to being viewed as an enemy within, in a relatively short amount of time.
In the aftermath of former Deputies Clare Daly and Mick Wallace bringing our allegations into the public domain, I was confronted by an inspector and a sergeant while I was in Cavan Garda station carrying out inquiries into ticket fixing, using An Garda Síochána's PULSE system. They told me to get out of the station and not to come back. On another occasion I was subjected to a search by a Garda sergeant, who believed that I had PULSE documents concealed in bags of shredded paper that I had removed from a waste bin at the rear of Monaghan Garda station to use as dog bedding, as I had done for several years. This search took place on a public roadway. I was on duty and in uniform at the time.
The former Garda Commissioner, Martin Callinan, who received my initial complaint about the corrupt determination of fixed charge penalty notices on 4 April 2012 from Mr. Oliver Connolly, the Garda confidential recipient, issued a direction in December 2012 prohibiting both myself and Sergeant Maurice McCabe from using the PULSE system. This meant that it was not possible for us to carry out our duties as members of An Garda Síochána.
Martin Callinan subsequently described our actions as “disgusting”, when he appeared before the Committee of Public Accounts on the 23 January 2014. The comments made by former Commissioner Callinan on that occasion were a clear warning to other members of An Garda Síochána who might have been considering making protected disclosures that there was no such thing as confidentiality and that their identities will become known, just as ours had.
In February 2013, I was heavily criticised by a member of the Judiciary acting in a personal capacity due to the fact that a judicial colleague had been named in a national newspaper as having had multiple penalty points terminated for speeding. I retired from An Garda Síochána on 1 May 2013, as my position had become untenable. This member of the Judiciary subsequently asked me to withdraw a complaint that I had made in September 2012 under An Garda Síochána anti-fraud policy against a senior Garda officer who was a serial ticket fixer. I believe that this request, which I ignored, was at the behest of the senior officer about whom I complained.
I welcome any legislation that offers protection to bona fide whistleblowers, but the sad reality is that until there is a major culture change in Ireland relating to the treatment of people who report wrongdoing in the workplace, life will continue to be very difficult for these people. The acceptance of the role of bona fide whistleblowers must become the rule and not the exception.
Mr. Noel McGree:
I welcome the opportunity to appear before the committee today to offer my experience of the Protected Disclosures Act 2014. I refer to the famous quote, often repeated, "The only thing necessary for the triumph of evil is for good men to do nothing."
The Protected Disclosures Act 2014 was devised in Ireland to protect and advise citizens on how to do something to prevent the triumph of evil. Like all legislation, the Protected Disclosures Act 2014 is theory. As legislators, politicians see the world through the eyes of those who debate the issues of the day before devising theory or laws to address them. I view the world through different eyes. I see the practical impact and damage done by weak laws and even weaker regulation. The Protected Disclosures Act 2014 is not Government's best work. It is littered with half-finished aspirations and unqualified requests. It is actioned by weak and unenforceable guidelines, recommendations and framework documents which permit ambiguity and provide loopholes to those seeking to frustrate or abuse the intended purpose of the Act. Amendments to such a law will achieve little. I will give an example. If someone is assaulted in Ireland, the State represents the victim assaulted and those accused are prosecuted by the State through the Offices of the Director of Public Prosecutions. If a person is assaulted for being a whistleblower, penalised for making a protected disclosure, as defined by the Protected Disclosures Act, the State will finance the defence of those accused of corruption and penalisation through the Chief State Solicitor's Office. This explains why some politicians, in particular Ministers who are identified as recipients of protected disclosures under the Act, lack the courage required to support whistleblowers. The Ministers understand that such support means standing with David against Goliath, standing up to the vast State resources employed to defend those who breach the Protected Disclosures Act. This culture is anti-whistleblower. Our culture needs to change before the Act changes. In its current form, the Protected Disclosures Act 2014 does not deliver protection. It does not prevent corruption and waste and it does not provide savings for the State or ensure better efficiency of public spending. It serves only as a financial burden on the State as it incurs the huge expense of financing the defence of the corrupt and the assault of the whistleblower.
I refused to co-operate and assist in the stealing of public service resources. I reported this corruption, currently estimated at more than €21 million, as a protected disclosure. The State employed at least eight different independent external firms, funded from the public purse, to investigate, review, or challenge my reports. All energies and efforts
are focused on me, the discloser, while the corruption, the disclosure, is ignored and continues to this day. If I had embraced the corruption and assisted the theft of public funds, the State would have lost €21 million, and would have continued to lose, but I refused to steal and instead reported corruption as a protected disclosure. This has cost the State €21 million in corruption. That corruption continues to this day, with further millions of euro spent on firms to investigate and challenge reports upholding my concerns. I lost my career and my home. My family suffered. The Protected Disclosures Act 2014 does not deliver the function for which it was devised.
In March 2016, my concerns were defined as a protected disclosure. In February 2017, an independent report by a judge upheld my concerns and my complaints of penalisation. I received apologies and commendations from the Minister and the director general of my Department. In March 2018, I received an award from the Workplace Relations Commission which upheld my penalisation for making a protected disclosure, one of the less than 10% successful WRC cases to date. I have never received that award. In April 2019, with my circumstance escalating, I made a second protected disclosure highlighting my treatment and reporting serious organised corruption, which was passed to An Garda Síochána by the Minister, but my treatment was referred to line managers as a HR matter and in January 2020 I lost my career when the decision was taken to retire me 14 years early due to the penalisation that I was enduring for making protected disclosures.
The Protected Disclosures Act 2014 is theory. The reality is different. Real people in positions of authority mistreated me because they saw me as a threat to their criminal operations. They had been identified in the judge's report as penalising me for making protected disclosures, but the State protected them, not me. Their authority financed and empowered them to refuse acceptance of the judge's findings. These people remained my line managers and now viewed me as an even more dangerous threat to their criminal enterprise because the Protected Disclosures Act labelled me a credible whistleblower. The Protected Disclosures Act 2014 did not protect me; it defined me, identified me, labelled me and placed a target on my back. My penalisation escalated unabated and continues to this day. I should not be retired at 47 years of age. I should be working, providing public service, as I had done professionally for 25 years. Instead, I lost my job because I am not a thief. I lost my job because I reported corruption.
The Minister passed my protected disclosure to An Garda Síochána. When those involved in the criminal activity became aware that I had reported their criminal enterprise, my family and I came under sustained attack, intimidation and abuse. We were followed, assaulted and abused. Our home was attacked and damaged by men in balaclavas late
at night. Our car was vandalised and a dead rat was left at our front door. I reported these incidents to the Minister, complete with supporting CCTV footage, as the recipient of my protected disclosure. I described these events as serious penalisation for making protected disclosures, but also as a serious criminal offence under section 20 of the Criminal Justice Act 2011, which makes it a criminal act to penalise someone for reporting a crime. I received a written reply from a private legal firm, retained by the Minister’s Department and financed from public funds, to inform me that the harassment and intimidation of my family was no longer defined as a crime due to the amendment made to the Protected Disclosures Act 2014 by the Oireachtas, removing the definition of such intimidation and harassment as criminal when the initial criminal activity is reported as a protected disclosure. It could only be defined as penalisation, making the recipient of my protected disclosure, the Minister, responsible for my family's protection. The problem for my family is that the Minister refuses to engage with me because his departmental civil servants, the same line managers found to have penalised me in the judge's report, are in dispute with me because they refuse to accept the findings of the Department's own report upholding my earlier protected disclosure and penalisation.
On the day before Christmas Eve 2019, the Minister wrote to inform me that he was retiring me from my career due to my penalisation for making protected disclosures. He said that he knew my family had endured a tough time, but that he could not protect us because he was constrained by the Protected Disclosures Act 2014. When that Act permits a Minister to take away a whistleblower's career, while that same Minister is constrained from protecting the whistleblower, no one can boast that it is performing the function for which it was devised. The Protected Disclosures Act 2014 did not protect me, it even removed other protections that should have been available to me. It did not prevent the triumph of evil. I am not alone; I am just invisible. Every tactic is employed to ensure that whistleblowers like me remain invisible and silent. The reality is there are many people in Ireland who, like me, have been let down by the Protected Disclosures Act 2014. On 12 June 2020 , the Government published a commitment to ensure the effectiveness of new whistleblowing legislation in the context of the transposition of the EU directive on whistleblowing. The Programme for Government: Our Shared Futuredetails the Government's pledge to use the opportunity of the EU consideration of reforms to European-wide whistleblowing provisions to review, update and reform our whistleblowing legislation and ensure that it remains as effective as possible. It is time to deliver on that pledge.
It is very powerful to hear personal stories in relation to this and I commend the witnesses on coming before the committee. The focus of my questions is specifically around the Minister's proposals. I will ask specific questions of people and if they want to add any comments relating to a previous question, that is fine. I am just aware of time constraints.
I will begin with Mr. McGree. On the role of the Minister and the reporting channels under the current legislation that allow protected disclosures to be made directly to the Minister, while the new Bill looks to bring in the protected disclosures office, what does Mr. McGree think could have constrained the Minister under the current Act from acting appropriately? How could that be improved? Is the new proposal for a protected disclosure office an improvement on the current Act or is it a retrograde step?
Mr. Noel McGree:
I do not know what constrained the Minister. That was his phrase; it is what he said to me. My understanding of the Protected Disclosures Act is that under section 8 a Minister is a recipient for a protected disclosure and there is a certain obligation and responsibility on a recipient of a protected disclosure to perform some functions for your protection. That was not done in my case. I mentioned in my statement that there is a lot of ambiguity in the Act which leaves the decision on actions to be taken by people, such as the Minister in receipt of a protected disclosure. It is not clear what action there is to be taken. There is definitely a need for more education and for more information to be provided. The biggest issue around making a protected disclosure to a Minister is that a Minister is an executive authority over a Department. You are drawing a concern to that Minister regarding that Department. Very often, what the Minister will do is simply return the protected disclosure, concern or submission to the Department to deal with so you are effectively back to investigating yourself and alerting officials in the Department that somebody is speaking up and raising concern. We have all spoken today about the change in the culture towards whistleblowers. That culture is very real. It has been identified in some Departments already with mention of things such as silo culture and dysfunction within Departments. When you are handing something as delicate as a protected disclosure back to the officials in the Department, you are leaving them open to disclosure and penalisation. Ministers need to understand that they need to take better ownership of what they receive and deal with it better. We are not contacting our local politician, looking to be moved up the waiting list for a hospital appointment or an issue over planning permission. This is a serious matter. We are making disclosures on genuine and serious concerns, very often within public administration. We cannot be just fobbed off to some personal assistant or some official within their Department. Ministers are going to have to start to stand up and respect whistleblowers. They need to protect them and realise what they are doing and then act on that which means acting in their position as executive authority over the Department.
The proposed amendment creates an office in the Office of the Ombudsman. I cannot see that making any difference. Despite my previous comments, Ministers are elected politicians. As such, they can be held to account by the people. It may take the next election to do that but it can be done; they are accountable. What we are finding from inside the public service is that public officials, senior civil servants, are just not held to account. They are allowed to make arbitrary decisions. As an example, I made a protected disclosure to my Minister. It was sent for external investigation by a firm. That firm upheld my protected disclosure. The officials in the Department immediately challenged that report, refused to accept it and railed against it. I will not name names, but everyone will be well aware of another protected disclosure made in a different Department. The protected disclosure was sent to a barrister for investigation. The barrister investigated it as an external firm but did not uphold the protected disclosure. The Secretary General then appeared before the committee and said "nothing to see here" because it was investigated and not upheld. Effectively, you have Secretaries General or senior civil servants who are allowed to make the decision as to whether the independent investigation of protected disclosures is accepted or not. That is just not fair or proper.
I thank Mr. McGree. That answers my question absolutely. I am aware that I have a short amount of time and there are a number of other questions and speakers. I will go to Mr. Brennan next. What are his thoughts about the reporting procedure in the new Bill? We often hear of lengthy cases. Will the new Bill create more barriers and delays because of the stepped process?
Mr. Philip Brennan:
The main changes are with regard to prescribed persons and also the introduction of the new protected disclosures office in the Office of the Ombudsman. As I said in my opening statement, it depends hugely on how much resourcing and expertise is placed into those areas and what capability they are given to independently investigate these issues themselves or refer them to others for independent investigation. The more steps there are the better but what cannot happen is a dilution in the provisions that are already in place. I mentioned in my opening statement my concern that at the moment there are new restraints proposed on disclosures to Ministers which might make it much more difficult for a worker to qualify to make a disclosure to a Minister. That needs to be looked at. We need to ensure that all the provisions at whatever level, and the best level to make a disclosure, if possible, is at a worker to manager level. Forget about Ministers, Secretaries General, or managing directors; the culture you need to encourage is that people, when they are concerned about something as part of their daily work, feel that they can go to their manager and raise it. That should be the end of it. They might never mention the words "protected disclosure". Where the problems arise, and where the protection is needed, is when penalisation in some shape or other is introduced. Everyone has spoken about culture. It is really about trying to create a culture that people who raise issues and concerns should be regarded positively. They do positive things for the organisation they work for rather than being people out to cause trouble.
Ms Grace spoke about a lack of accountability. We have heard about this from her and from others and about the how, with culture, that lack of accountability can come from top level civil servants or chief executives. What would Ms Grace recommend to rectify this? I understand Mr. Brennan's point about culture and I will return to him on that. I agree that we need to change the culture but what can we do now to rectify this?
Ms Julie Grace:
In any organisation, we need to see who is the person in charge. I understand how the mechanisms of the State work and how the public service works but what if you have corruption inside the public service? Ireland is a very small country. My experience was in a local authority where the CEO had full autonomy, and that is on the Minister's say so. The Department funds the local authority but has no further engagement as to how that is spent.
We are looking at more engagement from the politicians. It is about political will. We depend on the politicians.
The first point at which we have our story heard is when we speak with our local representative. When we vote for our local representative, that is the expectation that we have. With all due respect, while there are some excellent and engaged politicians, there are many apathetic politicians. They are not interested. It is as simple as that. We need to start at the top. It is about the fundamentals. A top-down, not bottom-up, approach is required. With all due respect to some of the other speakers, unless the culture is clean at the top, and until such time as we address the matters of victimisation, retaliation and penalisation, we are going nowhere. Those reactions are silent, covert and they are done from a distance.
How can we change that? We can change it by looking for strong political will. We need Ministers who will say that it is not acceptable. I understand the inordinate authority that senior civil servants have under the Ministers and Secretaries and Ministerial, Parliamentary, Judicial and Court Offices (Amendment) Act 2020. One particular Minister - I will not say whom - told me they are terrified of upsetting the public servants. Another politician told me that they knew that I was entitled to recourse and the issues should have been resolved long ago but those inside did not want to set a precedent. If we face that kind of disengagement from our politicians and they take that kind of cavalier approach to rights and wrongs, I am not sure where we can start.
We need better engagement. I am the first to say that we have some excellent politicians. However, I am very concerned, because when the members of the public petitions committee wrote to a particular Minister in this Government, they got a document back saying that the whistleblower legislation is very robust and is the envy of other countries. I do not know whether it is the case that the Minister does not understand what we are going through, or whether he wrote that document himself, for me, as a whistleblower, it is concerning and alarming.
To succinctly answer the Deputy's question, I reiterate the point that I put my trust in my local representative to represent my interests. We need a decent implementation of law and order, a criminal justice bill that is properly adhered to, and the chicanery, as I call it, that is very prevalent right through the public service, needs to come to an end.
I have two more questions to ask. To be clear, the members of the committee are here to look at this legislation and how we can ensure that it is as strong as possible. We cannot change the culture from this committee. Our role is to look at the legislation. I am really interested in specifics relating to the legislation. I would be interested in hearing Ms Grace's views on that. I totally understand Ms Grace's concern about the culture issue. It is most important, but I am focusing on the legislation in this committee.
In relation to the transposition of the legislation, has Mr. Wilson been informed or is he aware of what could happen to legacy cases that were brought under the 2014 Act? Perhaps he does not have the answer to the question and another witness on the panel can answer it. I will address my final question to Mr. Wilson and Mr. Brennan, who spoke on a number of weaknesses with the existing legislation. Are there concerns that the new legislation could lower standards even further and, therefore, violate article 25(2) of the EU directive, which specifically states that it should not lower standards?
Mr. John Wilson:
First, it is important that the role of our politicians is not diluted in any legislation, because only for certain politicians that I have named already, including former Deputy Mick Wallace, Deputy John McGuinness and a few others, I shudder to think where I would be today.
The 2014 legislation gave a certain amount of protection to bona fide whistleblowers in relation to protecting them when they made their protected disclosures. However, financially, and I mentioned it this morning to one of the members here, the 2014 Act allowed for the payment of up to five years' salary to a whistleblower. That is not good enough. What good is five years' pay to someone who is in their early or late 30s or in their 40s? It is important that that issue be addressed as a matter of urgency. Sorry, I cannot recall the first part of the Deputy's question.
Mr. John Wilson:
Any new legislation should incorporate all previous legislation relating to the area. That is of the utmost importance. I should reiterate that legislation can only go so far. I touched on the culture issue, as did a few of the other contributors. It is vitally important that bone fide whistleblowers are offered full protection against discrimination by their colleagues or outside forces, and also that their financial welfare is taken care of.
As I said, I wish I had all day to discuss this. I am sorry that my questions are so specific. Mr. Brennan or one of the other witnesses may want to comment specifically on the weaknesses of the existing legislation and state whether there are concerns that the new legislation could lower standards and, therefore, violate article 25(2) of the EU directive.
Mr. Philip Brennan:
I would not have concerns that the new legislation will lower standards. I think it will strengthen standards. The directive does have a non-regression clause. We are one of ten countries in the EU that already have whistleblowing legislation. We are not allowed to go backwards on that. I raised one issue in my presentation with regard to that. In the general scheme of things, I believe this legislation will strengthen the provisions rather than weaken them.
The big issue with protection is separating the problems from the people. There seems to be a propensity always to try to concentrate on who is raising the issue and why they are doing so. What we need to do is to strengthen those parts where the disclosure can be made to somebody who will not disclose the identity of the whistleblower back into the organisation at all, keeping it independent of the organisation all together. The best focus is concentrating on the problem rather than the person. I would say do not mark the man, play the game. The focus should be on that. I would not be concerned that there is a general regression in the legislation.
I wish to thank the witnesses for their presentations and, indeed, for sharing their strong personal stories with us. I have two brief questions which may be more suited to Ms Grace. We all know that, in many cases, people who have made protected disclosures suffer personal and financial implications and are therefore entitled to access compensation payments. It is also becoming clear that very often, the whistleblower encounters further obstacles when it comes to receiving that compensation, including situations whereby decisions around the application for compensation are being made by the person who was the subject of the protected disclosure.
How important is it to ensure that the compensation mechanisms are made more effective in any new legislation in terms of those who have made disclosures in the past but who have still never received any form of compensation? How important is it that they are able to access compensation under the new legislation?
Ms Julie Grace:
I thank Deputy Casey very much. That is a most pertinent question. The old Act contained a provision allowing it to be applied retrospectively, but it was very limited. We should not be focusing on the words "token" or "compensation".
We need to be put back into the position we were in. It is restitution. I see restitution as being the focal point of setting this right in the new legislation. It should be timely. There is not much point in kicking it out for so many years until someone dies, and that is the aspiration and the reality of it. I see huge implications for younger whistleblowers who have young families. I was one of the more fortunate ones in that I was older. Yes, I had losses and it took 17 years of really good living from me. I had to go to the High Court to have my good name reaffirmed because I have an adult family. I have been victimised by the procedures but I am not a victim. I am a survivor. My heart goes out to the younger people with young families with their homes and careers absolutely destroyed because they did the right thing. There is nowhere for them to go. I must tell the committee I am not an isolated case. I cannot comment on it but I have seen cases in the local authority where this has happened to people who raised their head above the parapet. With all due respect, there needs to be, as I said, a shift from the top down.
Deputy Casey is talking specifically about the legislation. Somebody must be in charge. The Minister is an elected person there by virtue of a democratic system, flawed as it might be. He is the corporate soul and a person one should be able to apply to. He should be properly resourced and in a position to appropriately investigate. As was said, it is not down to the perpetrators. This is the big joke. It is like a three-ring circus. It goes from one to the other. It goes from one person to their cousin, to their friend, to their partner or whoever.
We need a very firm section in that legislation that deals with restitution and with the protection of giving the evidence. Very few people who come forward do that willingly. It is a heart-wrenching exercise to have to go through. You do not want to get yourself in that position but you need somewhere to go.
To go back again to the restitution, it should reflect the losses and reflect where a person is in their career. If somebody has lost their home over it, that should be reflected. If you want a quicker solution to this, you should look at penalisation of the perpetrators. While all this is going on, they are enhancing their careers, promoting one another and going way up the ladder. They look down and then they swan off into the sunset having left a trail of destruction behind them. I thank the Deputy for his conscience in terms of addressing that. I would call for that restitution to be measured with the losses.
I thank Ms Grace. I wish to follow up on situations where a person makes the protected disclosure to an individual who is an officeholder. Let us take the Minister of a particular Department. If that individual subsequently leaves their role, should the responsibility for acting on disclosure remain with the individual, with the role or with both, in Ms Grace's opinion?
Ms Julie Grace:
That is an excellent question. It needs a very clear definition and to be very clearly identified. The Minister, being the corporate soul, is not, I suppose, personally responsible. I imagine and suspect - it happened in my case - that that thing goes on to the next Minister in that role. Let us say it is the Minister for fisheries, although we do not have one, then it will stay with whoever comes into that ministerial role because the Minister, in accepting that disclosure, is not actually acting in a private capacity but as the corporate soul. It should stay with the Department or wherever to which it was originally made.
Something very important, which has not been addressed at all, is communication with the whistleblower. In my case, my stuff was all given to the local authority and I saw nothing. I was not entitled to read anything that was said about me. I got little snippets through FOIs, although I was denied the bulk of the material. The victimisation and the retaliation is something but the penalisation is very covert. In my case the retaliation was done from a distance and it often takes people a few years to find out how they have been retaliated against. In this, there is the loss that has been experienced and then the loss that is happening now, and there is a further interference with people. As happened in my story, if people further engage negatively with their employment there should be some mechanism there to come back. I go back again to the perpetrators. It should be pinned on that action.
Mr. John Wilson:
Yes, a Chathaoirligh. I have a couple of points. On accountability, there was zero accountability in my case or in that of Maurice McCabe. Ms Grace said all the people she complained about got promoted. It is very important we have accountability and that somebody is held accountable. When a bona fide whistleblower makes a complaint and if and when it is upheld, it is vitally important to instill confidence in other whistleblowers that there is accountability and somebody is made pay the price.
I mention something Mr. Brennan said earlier which I have a little difficulty with. If I heard him correctly, he spoke about people who make disclosure and do not follow them through. I have a problem with that. If somebody makes a bona fide complaint, he or she should be willing to follow it through. It is like throwing a hand grenade into a crowded room and then running away. Maybe I am wrong on that.
Another very important point is this legislation should deal with people who make false complaints. We are here to discuss the concerns of bona fide whistleblowers. It is vitally important to include in any legislation penalties for people who deliberately make false allegations and portray themselves as bona fide whistleblowers.
I thank the witnesses very much for coming in and for all the work they have done for the State and the people over the years. It is greatly appreciated. I have been listening intently to the evidence they have been giving. I have experience of working with people who have produced and submitted protected disclosures. The organisations involved were everything the National Museum of Ireland to the Defence Forces to the Prisons Service. A couple of things strike me. One is that the whole process is not very transparent, even for an elected representative trying to find out whether a protected disclosure was submitted, what its status is, has a decision been made on it, etc. Thus there seems to be a problem with transparency there. The people who submit the protected disclosure have a significant problem with transparency. They do not receive information on how long the process is going to be or who is going to be talking to them. They might only have a conversation with one person over a period of years. Even making the process of the protected disclosure more transparent to its author and to elected representatives on his or her behalf would add light and maybe help the process, would it not? That question is for anyone who wants to answer it.
Mr. Philip Brennan:
I will come in on that. The new legislation for the first time provides that feedback must be given to the discloser. That was probably a defect in the old legislation. Oftentimes when a discloser came forward with something they heard nothing further. It went into a black hole as far as they were concerned. Often they did not know if anything was being done, if something was being done or what the situation was. In our firm, where we mediate between disclosers and employers, one of the things we have done from the start is to provide a two-weekly feedback.
It may just be to state there is nothing to say because we are dependent on whoever is actually looking at the thing and it is possible nothing is happening, but it is very important. It can be a very lonely place for someone who has plucked up the courage to make a disclosure to be on their own. One of the welcome provisions of the new legislation is the requirement that is in it. What is fed back in that process may be limited because other people are perhaps being investigated whose rights also have to be protected, but at least now there is a channel of feedback to the discloser.
What also struck me about this is that sending a protected disclosure to a Department that could have been involved, or could have an overview of the difficulties that have arisen, is in itself problematic. Everybody knows if you ask an organisation to investigate itself, it will not do an independent job. An external investigation is the best way to make sure things are investigated properly. In addition, I do not have as much confidence in elected representatives as some of the witnesses. I honestly believe many Ministers are captured by, and very dependent on, their Departments. I spoke to a Fine Gael Minister once who told me he was surrounded by a dozen people with degrees and master's degrees who had worked in the Department for more than 25 years; he was told in a hundred and one ways why things could not happen, etc.
My instinct on this has always been that we should have a permanent office within the State with experienced resourced individuals whose only job is to investigate difficulties happening within the State, right up to commissions of investigation. We know there are commissions of investigation that have been ongoing for years, are costing the State heaps of money and are never really getting to the heart of the problem. If that office or group could have the ability not just to make a determination but to make sure reform is implemented on the back of the protected disclosure, would that be a more effective and efficient way of achieving justice for the author of a protected disclosure?
Mr. Noel McGree:
I will come in on that issue. What the Deputy is describing is fantastic and it is the type of remedy that is probably required for whistleblowers. The difficulty is in the setting up of that and the importance of the words used in respect of it. For example, whistleblowers are very familiar with the phrase "an independent external investigator". I have dealt with nine different external investigators at this stage to whom I have been referred. These are firms that would perhaps have an expertise in the audit world, the human resources world or the legal world. They are professionally very equipped to carry out the kind of investigation the Deputy referenced. They are private firms but are paid for from the public purse. As I said, the difficulty is in the wording. While these are independent external investigations, I have experienced difficulties in that the terms of reference for the investigation were set by my Department. It has then immediately got control of what the independent external investigator can investigate. The external investigators I have dealt with - as I said I have dealt with nine - were all extremely professional, were very sympathetic to me, were very kind people and were very capable within the sphere of influence of the work they were doing, but their hands were completely tied by the terms of reference. I could mention other events, factors and incidents but the investigator would be precluded from investigating them by the terms of reference set by my Department, so exactly how independent is this external investigation?
The next problem are the phrases in the current legislation and in the proposed amendments referencing the updates that will be provided to whistleblowers so they will not be left in this black hole. What is an update? What does it mean to you and what does it mean to me? I received an update recently, which was a one-line email stating that the investigation of my protected disclosure was ongoing. That was it. The Department I was dealing with met its obligation to provide me with an update, but the update provided me with nothing new. I have no new time period and I was not given any new information. This is the type of difficulty we are up against.
We are all familiar with the phrase "lessons have been learned". The only ones learning lessons are departmental public servants, public service departments and Departments within government. They are learning how to circumvent the Protected Disclosures Act on issues such as external investigations. They are finding ways of delivering what is prescribed under the Act but not in a way that is delivering any redress, any answers for whistleblowers or actually delivering anything proper. I have experienced senior public servants using public money to retain honest, professional and good independent external firms to produce investigations and reports that everybody knows are going nowhere and will not solve a problem. They are effectively wasting public money on ineffective reports just to tick the box to say, "oh, we had that protected disclosure investigated externally and independently and it wasn't upheld". This is what we are up against and what we are dealing with.
I agree with Mr. McGree. My point is that the whole process should be taken out of the Departments' hands. The terms of reference should be in the hands of a separate organisation within the State whose job it is to do this. I do not want to cast any aspersions over external organisations, but the person who pays any organisation will exert some level of influence over it whether it is completely obvious or just understood. The person who pays the piper often chooses the tune, to a certain extent.
Timing is a big issue. I know of people who have protected disclosures languishing for long periods of time. Is there any advice on how quickly a protected disclosure should be dealt with?
Mr. Noel McGree:
I will jump in on this very quickly and then let somebody else speak on the matter. I will draw attention to the fact that the amendments to the Protected Disclosures Act proposed by the Minister for Public Expenditure and Reform have 26 headings. Not one of them relates to time limits. Currently, what is mentioned in the amendments about time limits is that the Minister proposes investigations will "diligently follow-up...having assessed the matter." Again, we are back to the strength of words. What does "diligently follow-up" mean? That will mean something different to everyone here.
I do not know if many people are familiar with the fact there is already a ten-week timeline in place. The Department of Public Expenditure and Reform put out a tender for a panel of external independent investigators. Under that tender, a framework document was agreed whereby those investigators would perform a function for the Government in exchange for public funds. The minimum mandatory requirement in that tender agreement is that the investigation must make findings within ten weeks - 60 days. In the event they do not make a finding within 60 days, they must provide a reason to the discloser. This is completely ignored. Nobody abides by this requirement. I have had an investigation ongoing for four years. I submitted a complaint in September 2017, a firm was appointed in March 2018 and it is still ongoing. The time limits are a major matter but they need to be addressed in a definite way. There has to be a reason for going above and beyond the time period because it is being used as a weapon against whistleblowers to frustrate us. As Ms Grace said, it is to delay, deny and wait for us to die.
Absolutely. There is no doubt that creating massive time spans with regard to these investigations is a form of denial of justice. Regarding protected disclosures, we have experienced instances where they have not worked. Are there any examples where they have worked or where we have seen people achieving justice for themselves, in addition to significant reform within their workplaces? What were the factors contributing to those successful disclosures?
Ms Julie Grace:
The greatest example is that of Maurice McCabe. That was without the tapes and without the political support from the gentleman and others who gave him that help. I am back again to the need for decent political representation and a top-down example. Why are we electing politicians? We elect them to represent our wishes.
If we have no difficulty with corruption, vote for corrupt politicians who will stay quiet. If we want corruption to be addressed, vote for people who will stand up, who will not be afraid and who will take no prisoners, if members pardon the pun, and stand against corruption. It is not that difficult. If we accept what we are currently accepting, it is our own fault in one way, although our hands are tied with the availability of the public purse to the perpetrators.
We must look at the complete element of recruitment right through services. Why are particular people recruited? It happens because they are "yes" men and women who turn a blind eye. In particular I see this in quangos and education and training boards. I will not get into the naming of names but there is such misuse of public funding. That is mainly done through corrupt politicians, with particular elected representatives going from one interview board to another. They make sure their own nominees are employed. I have seen cases where they go so far as not employing a person who might be more qualified than everybody else but who is known not to get involved with chicanery.
I maintain that a political shift is needed. We need more decent people in politics who will stand up and be counted. They should not be so worried. If somebody is afraid of the Civil Service because of a lack of education, we should ask why these people are being paid. If they are not able to do the job, they should be out the door.
Mr. Philip Brennan:
I have certainly seen some cases dealt with behind the scenes by responsible employers who take up the matter, address and deal with it without penalisation. The cases that tend to get publicity are problematic and there have been a number of these. There are certainly cases where matters are raised behind the scenes by responsible whistleblowers and the employers taking them up are concerned about getting independent people to investigate them. I do not agree, by the way, with the point made earlier that he who pays the piper calls the tune. Anybody who is properly professional in doing so will act independently and will make a report on the basis of what they find. I certainly would have no interest in doing any business with employers who felt they had any control over what might be the outcome. There are cases of success and we should not lose sight of them. Unfortunately, there are problematic cases as well.
I thank the witnesses for coming before the committee today and for their submissions. I am also of the opinion that if a complaint is made, the complainant has a right to have the complaint fully investigated by the appropriate body, whatever that body might be. The protected disclosure in legislation is supposed to give adequate cover to the person making the complaint. Following from this is the idea of a successful outcome to a complaint, which may be different. It may not always be possible to achieve the result desired by the complainant for a variety of reasons.
I accept the right of everybody to criticise politicians and it is par for the course in this business. We get it on a daily basis. We do our best, although we do not always succeed in doing the job we are given. The answer might be if people are not able to do the job, they should get out. I assure the witnesses that in my experience in public life, which has come over a long time, I could identify many people to whom I could make that suggestion but I will not do it.
The volume of queries we receive is unbelievable. For example, over one famous weekend not so long ago, my office received 4,700 submissions. We do our best and even dish them out to different Departments to follow up as the case may be. Generally speaking, we get a response, but with the volume, one can very often be snowed under. This does not take away from the fact that there must be a conclusion. The legislation is supposed to protect the discloser and, insofar as it can be done, achieve a conclusion. As I have said, one cannot determine what that conclusion might be, and this conclusion may not be satisfactory to the complainant.
Many occurrences over the years should not have happened and at various levels in respect of capacities, one has always tried to do one's best to identify and, insofar as it is possible, to address and resolve such matters. It does not always happen this way and one can look back, with the benefit of hindsight, and say that if A, B and C had been done at the time, it might have brought a different outcome. That is true and the human being is subject to the usual human frailties. I am not making excuses for failures to do the job that needs to be done but I am attempting to point out the magnitude of the problem and that difficulties may arise that are not immediately evident.
The Chairman and the rest of us on the committee know we have had countless complaints relating to banking and bankers, etc. I am sure there have been complaints in other departments over the past number of years. One follows them up as best one can, although one does not always achieve a result that one expects or perhaps feels should be the outcome. It takes a significant length of time for this to happen. We do not have unlimited offices or personnel to scale or scope our work. We do the best we can in the circumstances, although that may not always suffice. I am not making excuses but we do our best. I would not like this discussion to pass with the idea going unchallenged that the reason for all of this is corrupt politicians and that there will be no change as long as there are such people.
I am sure I speak for the majority of people in the House when I say nobody sets out to avoid statutory responsibilities, and nor should people do that. I hope that idea continues. It follows that there may be swings and roundabouts, leading to slippages, and matters may fall between stools, as the saying goes, because of insufficient or inadequate care and attention.
I and, I am sure, everybody else have dealt with cases in the past where after looking at a position, we have had to explain to a complainant or complainants that in the circumstances and having regard to what has transpired, there are limits to what can be achieved. Nobody wants to hear that but it happens often. This may not be of any great help to the complainant but it might be of some help in allowing people understand that at least information is given to the person concerned at the time. Otherwise, we could all mislead people and bring them down the road into a cul-de-sac. I am not in favour of doing that. I am in favour of checking everything. We can do that through parliamentary questions, which is the ultimate way of dealing with a query that comes to us. It is up to those who are responsible in the various Departments to take it from there and follow up the query.
Ms Julie Grace:
I listened to Deputy Durkan's comments. There are some great politicians and we do not expect unachievable results from them. My point is that we must lead by example in this country. With respect, how many members of the committee believe truth tellers, or whistleblowers by another name and who are honest workers, should be sitting here today penalised for doing the right thing for this State?
Each of the three of us has worked as a public official. My sin was to refuse to steal from the public purse and abuse the position that I had to abuse legal services. The other two gentlemen told their own story. Does the committee believe this is acceptable and that there is a new category of people called whistleblowers? We know who we are: we stood up for truth and honesty and served the State. Should we be put into a special category of limbo, like in the old catechism? Is that where we should be or are we entitled to our rights? What are we waiting for? Why can the current mechanism, flawed and all as it is, not be used? The officials dealing with it have gone around the houses to do everything to frustrate and deny us what we are entitled to. That was told very succinctly here today.
With all due respect to everybody on the committee, a talking shop is a talking shop, but we are looking for action. None of us has time on our side. People have commitments. I am an old woman. It is a shame. I submitted the documents that show the chronology of my application, and the failure of the Act, but it goes to show how one can be sent around the houses for five years with no resolution. It is there, but we are told to wait. The Minister who wrote to me said I was to wait. Parliamentary questions are marvellous, but members should please know for definite if they are getting the correct answer. I have had questions raised on my behalf and the incorrect answer was given. I thank members very much for allowing me to say that.
Mr. Noel McGree:
I wish to pick up on a point made by Deputy Durkan. I fully understand his referral to the fact that Ministers and politicians in general are in receipt of a huge amount of communications and their workload is large, but I wish to draw his attention to parliamentary questions that were asked by a committee member, Deputy Tóibín, and also by Deputy Catherine Murphy. This year they both tabled parliamentary questions to each Department to get a breakdown of the number of protected disclosures since 2016. Prior to 2016 the numbers were released following the statutory review that was conducted. There have been 510 protected disclosures between 2014 and now. If the answers to the parliamentary questions are correct and can be trusted and believed, that is what was identified through the questions tabled by Deputies Catherine Murphy and Tóibín.
A parliamentary question was asked about one of those protected disclosures. The Minister for Finance gave details, including the cost, which at that point was €55,000. The investigation was still ongoing at that time. A private firm was being paid to carry out an independent external investigation. The sum is a low and conservative figure, but if one multiplies it by the 510 protected disclosures that are being investigated, it comes to approximately €30 million of public funding going to private firms to investigate protected disclosures and produce reports that can then be just ignored, denied, challenged, forgotten and buried by civil servants because the findings are unpalatable or likewise if they say the civil servants did a great job and there is nothing to see here and they can be embraced. That is a lot of public money on only 510 protected disclosures since 2014. It is not an onerous task.
I accept the point that we are all human, from the Minister down the line, and we can all make mistakes. What members must begin to understand is that the mistake has catastrophic effects for the whistleblowers. We are destroyed mentally and financially. Our lifestyle and everything is gone. We are no more. My home was repossessed. My career is gone. My career involved a uniform, much like Mr. Wilson who is here today. He will know what I am talking about when I talk about being part of a uniformed branch of the State. The family or organisation I was part of was all taken away from me. The State is the only one that provides that service. There was no other Garda Síochána for Mr. Wilson to join. There was no other Prison Service for me to join. I cannot go and get another job. I am 25 years doing my job, which is a specific State job. One cannot walk out the door and go and work for somebody else when one falls out with one's employer. I just went off a cliff edge and I was left with nothing.
As bad as we all are here, the committee should have some sympathy for our wives, husbands, children and families who are suffering along with us and have been good enough to stand beside us and support us. It is one horrible, dangerous road to be cast aside and left alone. In this isolation and being left alone, the only person we are told to subscribe to is our Minister. If one stops a person in the street and asks them to name the Minister in a Department, there is a good chance he or she can say who the Minister is. People can say who their local Deputy is. Politicians are approachable to us and we can reach out to them. If one stops the same person in the street and asks them who is the Secretary General of each Department, he or she will not be able to say, because he or she does not know. These people are invisible oligarchs running the Departments with no accountability for the authority that they wield, so we must turn to politicians. What we are asking today is for those same politicians to stand up, represent us, protect us and take on board what we are saying.
Mr. John Wilson:
As Mr. McGree is aware, there is another whistleblower in the midlands who has been fighting a long, arduous battle for more than 30 years, but that is a different story. Regarding Deputy Durkan's contribution, it copper-fastens the need for an independent office to deal with protected disclosures, as proposed by Deputy Tóibín. On a personal basis, it is great to see Deputy Tóibín looking so well after his problems. Thank God he is back to full fitness. We need a properly financed, independent office to deal with protected disclosures. It will cost a lot of money, but I take on board what Deputy Durkan said about the volume of correspondence he and other Deputies have received.
I respectfully disagree with something Ms Grace said about Maurice McCabe being a success of the protected disclosure system. He was not a success of the protected disclosure system, or of the confidential recipient system, he was a success due to the wisdom of Mr. Justice Peter Charleton and the honesty and courage of Deputy John McGuinness. That is how Maurice McCabe was successful. People should remember that there was another inquiry, led by a retired judge, which was held behind closed doors that was not so benevolent towards Sergeant McCabe. It is important to put that on record.
I take on board also what was said by Deputy Tóibín, who was doubtful about the independence of people who sit on these boards or are part of these bodies. I agree with him. One can stick the word "independent" outside any building, but it does not mean that the functions being carried out inside are independent. It is important that we do not give up. We have to be positive. I have suffered. I do not want to open up old wounds, but life has been very difficult in recent years, as it has been for Ms Grace, Mr. McGree and all bona fide whistleblowers. It is important that we leave this meeting today feeling positive in the knowledge that this committee and other Members of the Oireachtas are finally going to take this issue seriously. It is not enough to enact legislation, the one word I want to see, that must leap from this legislation, is "accountability". Until we get accountability, we will go nowhere. We will be back having a similar discussion in five years' time.
If Andrew Harris had been the Garda Commissioner from 2007 onwards, I would not be sitting here today.
I thank Mr. Wilson. I am obliged to conclude the meeting at 2.30 p.m., and I want to put my own remarks on record. I thank Mr. Brennan for coming in and giving us some insight into the process and the success or otherwise of individual cases, and for his contribution on what is needed in the new legislation.
I said to Ms Grace already that "whistleblower" is a poor term. I would prefer to see whistleblowers being described as "concerned citizens" who have come forward to tell the truth. Like her, I believe it is time for action, and that action will be the legislation itself. Her contribution here has been constructive and positive. I hope it will lead to further amendments being presented in the debate that will take place on the legislation, which should begin shortly.
Like Ms Grace and Mr. McGree, Mr. Wilson has been through a lot in his life since he became involved in issues within the force. I really commend him, and, indeed, Ms Grace and Mr. McGree, on the efforts they have made to get, as Mr. Wilson called it, the bona fide complaints addressed. I have a question for Mr. McGree. He said that he has results and reports from nine different investigators.
Okay. I will address one of the general comments that was made about Maurice McCabe being a case that was successful. I do not believe any case has been successful. They have left a huge scar on the lives of the individuals concerned as well as those of their families and extended families. Quite frankly, I do not believe that any compensation or apology is enough for some of the people who have been treated this way by the State. Unfortunately, we are dealing with a preference for the status quorather than a desire to do things right by those who come forward and tell the truth. There is a certain corruption within the State that has caused this to happen. If that old culture is not rooted out of the State and replaced by an open culture of transparency and accountability, then we will continue to have this ongoing issue.
I would also draw attention to the fact that there are numerous other unnamed whistleblowers, who are currently having their lives destroyed by a State that believes it can kick individuals around using, as Mr. McGree said, taxpayers' money to do so. Where decisions have been made and results have been arrived at, again, with regard to Ms Grace's case, it is appalling that the Department has dragged out this case for so long. It is unacceptable that in replies to parliamentary questions, various Ministers have simply paid lip service and made no decision. There has been no political leadership in Ms Grace's case, demanding an answer, an outcome and an end to that inquiry.
If the officials or the Minister are listening now, I suggest the time has come to draw a conclusion to Ms McGree's case. Ensure that those who need to be sanctioned are sanctioned and acknowledge those who need to be in terms of their own complaint. Now is the time to do it. I will be raising that issue again on the floor of the Dáil. I encourage as many members of the committee as possible, and anyone else who is interested in this, to do likewise.
With regard to Mr. McGree and the Department responsible, his case has been acknowledged within a court, which has upheld the decision and outcomes and yet he has not had any compensation in terms of what was discussed at the time. It is easy to say it is unacceptable but the State, where it is found wrong, has an obligation to its citizens to honour the outcome of a process. That has not happened in Mr. McGree's case. To think that the same issues are ongoing, that nothing is being done and that he is being penalised makes a person have very little regard for the State. That is how I feel about the three cases before us today. I would like to see the State acknowledge its wrongdoing, deal with each of the individuals effectively and efficiently, set a timeframe and for there to be independence, and not just independence in name but an office that will clearly stand over its integrity and credibility, and deal with the cases as they emerge.
I cannot speak for all of the members but I am sure they want to do the right thing about whistleblowers and want to see this legislation being robust and so on. I want to see the cases - the protected disclosures that have been lodged and put in a process - dealt with and sorted. I do not want to see all of them having to wait until after the legislation has passed. It is a dark stain on the State that it would allow this to happen and I am going to pursue it in that way.
I would reach out to the whistleblowers, one of whom is based in Cork Institute of Technology, CIT, which has now merged as a technological university, and say that in that case, similar to those of the witnesses present, it is time to draw a line and acknowledge the wrongdoing. It is time to compensate and support the families concerned and move on. I will pursue it in that vein. I have no doubt the members of the committee will revisit this to ensure we get the appropriate legislation that will provide independence and make people accountable.
Each of the witnesses has made a great contribution to this debate on which we can reflect. I thank them again for coming along today and wish them and their families well. I give a commitment that this will not be another committee report left on a shelf and that we will be able to take some action as a result of it.
We will suspend the meeting until 3 p.m. when we will meet in private session.