Noel Dempsey (Meath, Fianna Fail)

The Deputies have confirmed my assumption that they were referring to the Whistleblowers Protection Bill 1999. The provision for the protection of whistleblowers in this Bill follows a Government decision on 3 March 2006, which stated that all legislation in preparation should, where relevant, include provisions for the protection of whistleblowers. For the purpose of this Bill, "appropriate disclosure" is defined. Protection is offered to any whistleblower, who is generally accepted by people to be an employee who communicates to ComReg any incidence of non-compliance with the obligations under the Bill or related enactments that the person believes is occurring.

It is not proposed to accept amendment No. 28 because the proposed section 24A provides protection from liability for any person who makes an appropriate disclosure to the commission about the conduct of an undertaking and is designed to encourage such disclosures. The proposed section 24C provides for a summary or indictable offence for the disclosure of false or misleading information. The fines for the summary conviction shall not exceed €5,000 and those for the indictable conviction shall not exceed €50,000. This provision offers protection to undertakings from malicious disclosures of information.

The Government amendment introduced on Committee Stage enhanced the whistleblowers provision by providing that ComReg may use its discretion when information is disclosed to it. If satisfied on reasonable grounds, it can decide not to accept or deal with the information. For example, it would not need to act if frivolous or vexatious information was offered to it. The provision will also offer operators protection from a disgruntled employee who might, for example, seek to disclose commercially sensitive information to ComReg. This is in addition to the protection from mischievous claims offered by the proposed section 24C.

The whistleblower provision allows for appropriate disclosures to be made about any conduct relating to the provision of electronic communication network services and associated facilities. According to our legal advice, the proposed amendment No. 29 would restrict the areas where information could be given to the commission to two, namely, anti-competitive practices and collusion. For that reason, I do not propose to accept the amendment. I accept that it is not Deputy Broughan's intent to restrict the obligations. All other non-compliance with obligations under the framework would not be disclosable if the amendment were accepted. The Deputy feared such a situation, but his amendment would have the opposite effect to his intention.

The proposed section 24A(2) sets out what is meant by "appropriate disclosure of information". A person must believe the information to be true, but the onus not to make something public knowledge should not lie with the whistleblower. The duty of care lies with the body to which the information has been disclosed and natural justice protections would apply.

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