Micheál Martin (Cork South Central, Fianna Fail)

I move amendment No. 1:

To delete all words after "Dáil Éireann" and substitute the following:

—notes this reaffirmation of the Government's commitment to the protection of whistleblowers; being persons who legitimately bring to the attention of the appropriate authority, sensitive information gained in the course of their employment and notes that Government has already demonstrated this commitment by providing appropriate whistleblower provisions in a series of statutes enacted by the House as well as in legislative proposals currently before this House;

—notes the very significant legal and drafting issues which have arisen in the drafting of a single all-encompassing legislative proposal on whistleblowing;

—supports the Government in its decisions to proceed on a case by case basis with appropriate whistleblowing provisions, as either enacted by the Oireachtas or currently before this House, rather than await the possible resolution of wider complex legal issues;

—notes the Government's approach will continue to provide a series of opportunities for the House to contribute to the formulation and enactment of appropriate whistleblower provisions on a sectoral basis; and

—endorses the Government's intention to continue to pursue the sectoral approach which will supersede the all-encompassing approach proposed in the Private Members Bill of 1999.

The Whistleblowers Protection Bill 1999 was introduced in the Dáil by Deputy Rabbitte on 24 March 1999. The Government, at its meeting on 15 June 1999, decided to "accept the Bill, in principle, on Second Stage, subject to indicating to Deputy Rabbitte that amendments will be proposed on Committee Stage by the Tánaiste and Minister for Enterprise, Trade and Employment following consultations with the interested parties and following on the advice of the Attorney General".

As a result, my colleague, the Chief Whip, Deputy Kitt, then Minister of State with responsibility for labour, trade and consumer affairs, announced in the Dáil on 15 June 1999 that he fully supported any meaningful measures to increase the protection of workers and, therefore, would not be opposing the referral of the Bill to committee. He also indicated that many of the provisions of the Bill would have to be examined more closely and would necessitate further consultation with the social partners and other interested bodies. The Bill passed Second Stage in the Dáil on 16 June 1999 and was referred to the Select Committee on Enterprise and Small Business.

I wish to take this opportunity to outline to the House the extensive range of considerations that required attention in seeking to refine the Bill. In July 2000, following examination of the Bill, my Department, in consultation with the Office of the Parliamentary Counsel, circulated a draft memorandum for Government to all Government Departments. As a follow on from observations received from Government Departments, 45 amendments were prepared by my Department. The proposed amendments, if adopted, would have resulted in a more comprehensive item of legislation. This would have provided protection from civil liability or penalisation during their employment for employees, including agency workers, who made — to the specified persons, appropriate officers of public bodies so designated for the purposes of the Bill — certain protected disclosures of information obtained in the course of their employment, as distinct from making certain disclosures in respect of the conduct of the business and affairs of their employers.

At its meeting on 27 July 2001, the Government approved the redrafting and amending of the Whistleblowers Protection Bill 1999 along the lines of the 45 draft amendments. This was subject to further consideration being given to implications for the Central Bank and related issues and the breadth of the grounds, in terms of future behaviour, on which the terms of the Bill could be invoked. The Government amendments raised a number of detailed and complex issues which, according to the advice of the Office of the Parliamentary Counsel, would require substantial redrafting of the Bill. These related to issues such as the inclusion of the Central Bank under the Bill. Clarifications were sought to ensure that the terms "employer" and "employee" did not include the Central Bank and its staff. The issue was that the Central Bank's confidentiality regime was derived from obligations regarding professional secrecy imposed under EU law. It was necessary to avoid any possible conflict with the Central Bank Acts and/or EU law. Legal advice was received from senior counsel and the Attorney General's office indicated inconsistencies with certain EU commitments in respect of conditions for the disclosure of information. Another issue raised was the provision of the protections of the Bill to public servants. In particular, issues on the operation of the Official Secrets Act 1963 arose.

In 2002 the Office of the Parliamentary Counsel subsequently indicated that the proposed Government amendments would require further consultations, particularly in respect of the protection of trade secret type industrial processes and especially where these overlap with intellectual property rights. The Bill should not create a grey area between the matters that are to be included in whistleblowing and the protection of such intellectual property rights. Further consultation was also indicated for clarification of the nature of the protections that would be required under the Unfair Dismissals Acts 1977 to 1993 for employees who blow the whistle, reasonably and in good faith, and in respect of the Official Secrets Act 1963. In addition, the Attorney General's office also provided further complex legal advice relating to the obligations on designated bodies and the Central Bank of Ireland to report certain suspected money laundering activities to the Revenue Commissioners.

Further progress on redrafting the Bill was overtaken by the dissolution of the Dáil in April 2002 and the general election in May 2002. The Government decided in June 2002 to restore to the Dáil Order Paper the 1999 Bill as one of a number of items of draft legislation circulated by the Chief Whip on 10 June 2002. This was achieved on foot of a motion taken in the House on 18 June 2002. The Bill was placed on the Order Paper and became part of the Government legislative programme, which, as Members are aware, is a commitment to legislate.

Progress on redrafting the Bill was raised on a number of occasions in the House, either on the Order of Business or in the form of parliamentary questions. In addition, the Taoiseach's private office wrote to Deputy Howlin on 5 February 2003. I understand that the Taoiseach's private office also contacted the Deputy on the issue on 21 November 2003.

In light of the complexities encountered, the possibility of continuing to address the issue on a sectoral basis was examined because such an approach began to look more effective and practical. Following consideration, this approach was conveyed to this House on the Order of Business on 19 May 2004 by the then Minister for Defence, Deputy Michael Smith, who stated:

It is now considered, on reflection, that the provision of statutory protection for whistleblowers on a sectoral basis might provide a better and more focussed approach to dealing with this issue as in the case of section 4 of the Protection for Persons Reporting Child Abuse Act and section 50 of the Competition Act. In such circumstances, proceeding with the 1999 Bill is not viewed as a priority. The matter may be addressed at some future time when priorities in terms of the Government's legislative programme have been implemented.

This approach — that Deputy Rabbitte's Bill was no longer a Government priority — was repeated by the Taoiseach on the Order of Business on 2 November 2004 when he stated:

In such circumstances, proceeding with the 1999 Bill, as it is five years old, is not viewed as a priority. It may be addressed at some future time when the priorities of the legislative programme will be implemented. For the information of the Deputy, the two countries which introduced whistleblowers Bills have altered the legislation because it is not workable.

This sectoral approach was also articulated on a number of occasions during 2004, either on the Order of Business or in replies to a number of parliamentary questions in the House. As highlighted in the Opposition's motion, the Whistleblowers Protection Bill 1999 is still retained on the Government legislative programme. However, in light of further exchanges on the Order of Business on 15, 16 and 30 June and 1 July 2005, and replies given to parliamentary questions on the issue on 28 September, 2 November and 6 December 2005, I believe that it is now necessary to bring clarity to this issue.

I have attempted to give the House some flavour of the exceptional legal difficulties encountered in seeking to give legislative effect to the provisions in the original Bill. I have no reason to believe that these problems can be satisfactorily resolved in the near future, despite the existence of goodwill and hard work on all sides. In recent times, I have been giving consideration to formalising a sectoral approach to the issue of whistleblowing. I will outline to the House what I mean by this and why I think it is the best approach.

A sectoral approach will enable the speedier introduction of relevant measures appropriate to different sectors to address the important issues identified in Deputy Rabbitte's original Bill. As already indicated, however, the extensive work on preparing official amendments to the Private Members' Bill raised a number of complex legal questions relating to: inclusion of the Central Bank having regard to the bank's confidentiality regime; the obligation on designated bodies and the Central Bank of Ireland to report certain suspected money laundering to the Revenue Commissioners; the Official Secrets Act 1963 and its implications for civil servants; the protection of trade secret type industrial processes; and the fact that a single, all-encompassing legislative proposal on whistleblowing would be complex and cumbersome, take considerable time to enact and would not be user-friendly to the general public.

The benefits of my suggested approach can be evidenced by legislative developments in the period since the introduction of Deputy Rabbitte's 1999 Bill. It is unfair and inaccurate to say that nothing has happened in respect of whistleblowing in recent years. A significant number of measures have been introduced.

The issues raised in the context of the original Bill are so important that they do not allow for postponement until a perfect item of comprehensive legislation can be devised. Accordingly, my colleagues and I have been availing of opportunities to include suitable whistleblowing provisions in draft legislation, where appropriate. As indicated earlier, while still seeking to solve drafting problems in the original Bill, the Government included suitable provisions in a series of legislation adopted by this House in recent years. These items of legislation were the subject of lengthy discussions during their passage through the Houses, during which the Opposition parties had the opportunity to raise concerns with regard to workers who might want to blow the whistle in good faith. They include section 4 of the Protections for Persons Reporting Child Abuse Act 1998, which provides immunity from civil liability to persons who report child abuse, reasonably and in good faith. Under the Ethics in Public Office Act 2001, the Standards in Public Office Commission is empowered to investigate complaints about alleged contraventions of the Ethics in Public Office Acts..

As far as complaints are made, inter alia, by civil servants against other civil servants, the Ethics in Public Office Acts 1995 to 2001 provide at section 5(1) that "where a person makes a complaint to the Commission in good faith, no cause of action shall lie against the person and no disciplinary action shall be taken against him or her as a result of reporting his or her concerns to the Commission". Section 5(4) provides that a person who takes disciplinary action against a complainant in this context will be guilty of an offence and liable to a substantial fine.

Section 50 of the Competition Act 2002 provides that a person shall not be liable in damages in respect of the communication, whether in writing or otherwise, by him or her to the Competition Authority. The 2002 Act also provides that an employer shall not penalise an employee for having formed an opinion of the kind referred to in section 50(1) of the Act and communicated it, whether in writing or otherwise, to the authority if the employee has acted reasonably and in good faith in forming that opinion and communicating it to the authority.

Section 27 of the Safety, Health and Welfare at Work Act 2005, only recently passed by the House, provides for protection against dismissal and penalisation of employees who, in good faith, take steps to protect themselves or others in a workplace situation.

Section 124 of the Garda Síochána Act 2005 provides for regulations for the establishment of a charter containing guidelines and mechanisms to enable members of the Garda Síochána or other persons to report, in confidence, allegations of corruption and malpractice within the force.

Following my deliberations, the Government has agreed to my proposals to formalise the sectoral approach as part of its policy in respect of addressing the issue of whistleblowing by requiring Ministers — in consultation with the Office of the Parliamentary Counsel to the Government — to include, where appropriate, whistleblowing provisions in draft legislation that is either on the Government's legislative programme for the current Oireachtas session or that is in the course of preparation. Such an approach also acknowledges situations where the provision of whistleblowing provisions may not be appropriate.

As part of this approach, I propose to move a Government amendment to include whistleblowing provisions in the Employment Permits Bill 2005 on Committee Stage later in the week. This amendment will provide important protections to employees from overseas who act to report wrongdoing on the part of employers, either to a member of the Garda Síochána or the Minister in respect of the new Act or the earlier Employment Permits Act 2003. The amendment follows the provisions of existing sectoral legislation outlined earlier.

Against this background, I ask the House to support the Government in its decision to proceed on a case by case basis with appropriate whistleblowing provisions, either as enacted by the Dáil or currently before it, rather than await the possible resolution of wider complex legal issues.

In essence, therefore, the Government is putting before the House a different methodology towards achieving the same broad objectives being put forward by the Opposition in the context of the Whistleblowers Protection Bill. I stress that we are essentially proposing what we believe to be an effective alternative, endeavouring to obtain one-size-fits-all legislation. I have outlined a number of the legislative enactments put into play by the Oireachtas in which whistleblowers' provisions exist to protect employees from penalisation or from any attempt to undermine their status as a result of volunteering information for the betterment of others and preventing wrongdoing or other unacceptable behaviour. This should be accepted in good faith. It is not fair to suggest that nothing has been done in the past five years. Significant progress has occurred in respect of the areas outlined.

As regards issues raised in this debate, the context will become available. I refer, for example, to the appalling behaviour of Dr. Neary at Our Lady of Lourdes Hospital, Drogheda. I applaud Judge Harding Clark on the excellence of her report. I was pleased to appoint her to conduct this inquiry. I assure Deputy McManus that it will not be seen in an historic light and that the recommendations will be acted upon. I know the Tánaiste is very committed to doing that and the opportunities will arise whereby the conclusions of that report may be reflected in terms of new legislation templates, including that which may be proposed as regards the Medical Council, as well as the entire issue of standards and so forth.

Whistleblowing provisions will not provide a panacea for resolving all issues and problems. Issues pertaining to culture, status and a range of other matters are also factors as regards some of the unacceptable activities that have occurred in a wide range of areas alluded to by Deputies in the course of this debate.

I also ask the House to note that the Government's approach will continue to provide a series of opportunities for Members to contribute to the formulation and enactment of appropriate whistleblower provisions on a sectoral basis.

Finally, I ask Members to endorse the Government's intention to continue to pursue the sectoral initiative which will supersede the all-encompassing approach proposed in Deputy Rabbitte's Private Members' Bill of 1999. Under the sectoral approach, I propose to instruct the Chief Whip to seek to remove the Whistleblowers Protection Bill 1999 from the Dáil Order Paper. The bottom line is that we believe the best way to approach this is to insert appropriate clauses in the various items of legislation that will come before the House in this session and next year and also to review the situation on a case by case basis. It would be unfair, then, to leave the Bill on the Order Paper.

Deputy Rabbitte suggested that the Bill has achieved certain historic status. There is no point in persisting with that unnecessarily when an alternative approach has been decided upon by Government. It is an approach that I commend to the House. However, the important public issues that gave rise to Deputy Rabbitte's original proposal have not diminished in relevance. While appropriate provisions to address these issues have been included in a number of statutes, there can be no sense of complacency. I share much of the concern articulated by Members.

It is imperative that we continue to ensure that persons giving sensitive information in the public interest are provided with appropriate safeguards. Furthermore, as the House considers each Bill coming before it, Members will have an opportunity to decide on the whistleblowing safeguards most appropriate to different sectors and to the particular needs of persons working in those sectors. The sectoral approach also means that future measures in this area will be informed by the experience of earlier measures already on the Statute Book. This is so that we can evaluate the measures already put in place to gauge their effectiveness and the degree to which they may be refined and improved on.

We are not convinced that there is a one-size-fits-all solution. The financial world, for example, is much different from the health world, health and safety and employment law and labour rights. We are dealing with a wide spectrum of issues. I accept that everything that has been put forward was argued in good faith but genuine legal difficulties have arisen. Complex questions have been raised. In our bid to find the perfect all-round solution we could lose more valuable time. However, in terms of the legislation coming before the House in a number of important areas, whistleblowing measures may be inserted. The latter is what we are currently proposing to do.

All Deputies have a role to play in this regard and the Government will certainly be prepared to consider contributions to this end from all sides of the House. I am convinced that the sectoral approach offers the best prospect of effectively addressing these important issues in a timely and effective manner. In terms of future legislation coming before the House, the Government is open to whatever amendments or proposals the Opposition puts forward in that regard.

See this speech in context