Alan Shatter (Dublin South, Fine Gael)

I move amendment No. 1:

In page 5, to delete lines 15 to 48, to delete pages 6 to 9 and substitute the following:

"4.—The Act of 2001 is amended by inserting the following sections after section 8:

8A.—(1) In this Part, 'employee' and 'employer' have the same

meaning as in the Unfair Dismissals Acts 1997-2007.

(2) In this Part, 'penalise' includes any act or omission by an

employer or a person acting on behalf of an employer that affects

an employee to his or her detriment with respect to any term or

condition of his or her employment and which is consequent upon

a protected disclosure by the employee.

(3) For the purposes of subsection (2) but without prejudice to

its generality, penalization includes suspension, lay-off or

dismissal (including a dismissal within the meaning of the Unfair

Dismissals Acts 1977 to 2005), or the threat of suspension, lay-off

or dismissal, demotion or loss of opportunity for promotion,

transfer of duties, change of location of place of work, reduction

in wages or a change in working hours, imposition of any

discipline, reprimand or other penalty (including a financial

penalty), coercion, intimidation or harassment, injury, damage or

loss, and threats of reprisal.

(4) Subsection (2) shall not be construed in a manner which

prevents an employer from ensuring that the business of the body

concerned is carried on in an efficient and effective manner.

8B.—Where an employee makes, in good faith and not for

personal gain, a disclosure to an authorised person and the

employee has reasonable grounds for believing that it will show

one or more of the following:

(a) that a criminal offence has been committed, is being

committed, or is likely to be committed;

(b) that a person has failed, is failing or is likely to fail to

comply with any legal obligation to which he is subject;

(c) that a miscarriage of justice has occurred, is occurring or

is likely to occur;

(d) that the health and safety of any individual has been, is

being or is likely to be endangered;

(e) that the environment has been, is being or is likely to be

damaged;

(f) that there is conduct which has led, is leading or is likely

to lead to a misuse or substantial waste of public funds;

(g) that there is conduct leading to concern about

questionable accounting, internal controls or auditing

matters;

(h) that the health or welfare of a person who is receiving a

health or personal social service has been, is or is likely

to be at risk;

(i) that the actions of any person employed has posed, is

posing or is likely to pose a risk to the health or welfare

of the public;

(j) that the information tending to show any matter falling

within any one of the preceding paragraphs has been, is

likely to be deliberately concealed or destroyed;

then disclosure shall be a protected disclosure under this Act.

8C.—Notwithstanding anything in the Official Secrets Act 1963

a disclosure of information to which section 15 relates shall be a

protected disclosure if the employee makes the disclosure in

accordance with section 17.

8D.—(1) A qualifying disclosure is made in accordance with

this section if the worker—

(a) makes the disclosure in good faith to a person prescribed

by Regulation made by the Minister for Finance for the

purposes of this section, and

(b) reasonably believes—

(i) that the relevant disclosure falls within any

description of matters in respect of which that

person is so prescribed, and

(ii) that the information disclosed, and any allegation

contained in it, are substantially true.

(2) An order prescribing persons for the purposes of this section

may specify persons or descriptions of persons, and shall specify

the descriptions of matters in respect of which each person, or

persons of each descriptions, is or are prescribed.

8E.—(1) A person is not liable in damages in consequence of a

protected disclosure.

(2) Subsection (1) does not apply in respect of a person who

makes a disclosure knowing it to be reckless as to whether it is

false, misleading, frivolous or vexatious or who, in connection

with a disclosure, furnishes information that the person knows to

be false or misleading.

(3) The reference in subsection (1) to liability in damages shall

include a reference to any other form of relief.

8F.—(1) An employer shall not penalise an employee for

making a protected disclosure.

(2) A contravention of subsection (1) is a ground of complaint

by an employee to a rights commissioner.

(3) In proceedings before a rights commissioner or the Labour

Court in relation to a complaint of a contravention of subsection

(1), it shall be presumed, unless the contrary is proved, that the

disclosure was a protected disclosure.

(4) If the contravention of subsection (1) was a dismissal of the

employee within the meaning of the Unfair Dismissals Acts 1977

to 2005, relief may not be granted to the employee both under this

section and under those Acts.

(5) A rights commissioner hearing a complaint under this

section shall—

(a) give the parties an opportunity to be heard and to present

any evidence relevant to the complaint,

(b) give a decision in writing, and

(c) communicate it to the parties.

(6) A decision of a rights commissioner under subsection (5)

shall do one or more of the following:

(a) declare that the complaint was or, as the case may be,

was not well founded;

(b) require the employer to comply with subsection (1) and

to take specified steps;

(c) order the employer to pay to the employee compensation

of such amount (if any) as is just and equitable having

regard to all the circumstances.

(7) A rights commissioner shall not entertain a complaint under

this section unless it is presented to him or her within the period

of 12 months beginning on the date of the contravention, unless

there are circumstances that prevented the presentation of the

complaint within that period, in which case the rights

commissioner may allow such further period for the presentation

of a complaint under this section, not exceeding 6 months from

the expiration of the period of 12 months, as the rights

commissioner considers reasonable.

(8) (a) A complaint under this section shall be presented to a

rights commissioner by giving notice of it in writing to

him or her and the notice shall contain such particulars

and be in such form as may be specified from time to

time by the Minister for Finance.

(b) A copy of a notice under paragraph (a) shall be given to

the employer by the rights commissioner.

(9) Proceedings under this section before a rights commissioner

shall be conducted otherwise than in public.

(10) A rights commissioner shall furnish the Labour Court with

a copy of any decision given by the commissioner under this

section.

(11) A party to proceedings under this section before a rights

commissioner may appeal to the Labour Court from a decision of

the rights commissioner and, on an appeal, the Labour Court shall—

(a) give the parties an opportunity to be heard by it and to

present to it any evidence relevant to the appeal,

(b) make a determination in writing in relation to the appeal

affirming, varying or setting aside the decision, and

(c) communicate the determination to the parties.

(12) (a) An appeal under this section shall be initiated by the

giving, by the party appealing, within 6 weeks of the

date on which the decision to which it relates was

communicated to that party, of a notice in writing to the

Labour Court under subsection (11) and stating the

intention of that party to appeal.

(b) A copy of a notice under paragraph (a) shall be given by

the Labour Court to the other party as soon as

practicable after the receipt of the notice by the Labour

Court.

(13) The following matters, or the procedures to be followed in

relation to those matters, shall be determined by the Labour Court,

namely:

(a) the procedure in relation to the initiation and the hearing

by the Labour Court of appeals under this section;

(b) the times and places of hearings of such appeals;

(c) the representation of the parties to such appeals;

(d) the publication and notification of determinations of the

Labour Court;

(e) the particulars to be contained in a notice under

subsections (12) and (14);

(f) any matters consequential on, or incidental to, the

matters referred to in paragraphs (a) to (e).

(14) (a) The Minister for Finance, may, at the request of the

Labour Court, refer a point of law arising in

proceedings under this Part before it to the High Court

for determination.

(b) A party to proceedings before the Labour Court may

appeal to the High Court from a determination of the

Labour Court on a point of law.

(c) The determination of the High Court under this

subsection is final and conclusive.

(15) (a) Where a decision of a rights commissioner under

subsection (6)(b) or (c) has not been implemented by

the employer in accordance with its terms, the time for

bringing an appeal against the decision has expired and

no such appeal has been brought, the employee may

bring the complaint before the Labour Court and the

Labour Court shall, without hearing the employer or

any evidence (other than in relation to the matters),

make a determination to the like effect as the decision.

(b) The bringing of a complaint before the Labour Court by

virtue of this subsection shall be effected by giving to

the Labour Court a notice in writing containing such

particulars (if any) as may be determined by the Labour

Court.

(16) Proceedings under this section before the Labour Court

shall be heard otherwise than in public.

(17) The Labour Court shall publish, in a manner it considers

appropriate, particulars of any determination made by it under

paragraphs (a), (b), (c), (e) or (f) of subsection (13) (not being a

determination as respects a particular appeal under this section) or

subsection (15)(b).

8G.—(1) The Labour Court shall, on the hearing of any matter

referred to it under this Part, have power to take evidence on oath

and for that purpose may cause oaths to be administered to

persons attending as witnesses at the hearing.

(2) Any person who, upon examination on oath authorised

under this section, wilfully and corruptly gives false evidence or

wilfully and corruptly swears anything which is false is guilty of

an offence and, on conviction, is liable to the penalties for wilful

and corrupt perjury.

(3) The Labour Court may, by giving notice in that behalf in

writing to any person, require the person to attend at such time

and place as is specified in the notice to give evidence in relation

to any matter referred to the Labour Court under this section or to

produce any documents in his or her possession, custody or

control which relate to any such matter.

(4) A notice under subsection (3) may be given either by

delivering it to the person to whom it relates or by sending it by

post in a prepaid registered letter addressed to the person at the

address at which he or she ordinarily resides.

(5) A person to whom a notice under subsection (3) has been

given and who refuses or wilfully neglects to attend in accordance

with the notice or who, having so attended, refuses to give

evidence or refuses or wilfully fails to produce any document to

which the notice relates is guilty of an offence and is liable on

summary conviction to a fine not exceeding €3,000.

8H.—(1) (a) If an employer fails to carry out in accordance

with its terms a relevant determination of the Labour

Court under section 20 within 6 weeks from the date on

which the determination is communicated to the

parties, the Circuit Court shall, on application to it in

that behalf by the employee, without hearing the

employer or any evidence (other than in relation to the

matters aforesaid), make an order directing the

employer to carry out the determination in accordance

with its terms.

(b) In paragraph (a), a 'relevant determination' means a

determination in relation to which, at the expiration of

the time for bringing an appeal against it, no such

appeal has been brought, or if such an appeal has been

brought, it has been abandoned and the reference to the

date on which the determination is communicated to

the parties shall, in a case where such an appeal is

abandoned, be construed as a reference to the date of

its abandonment.

(2) The Circuit Court may, in an order under this section

relating to the payment of compensation, if in all the

circumstances it considers it appropriate to do so, direct the

employer to pay to the employee interest on the compensation, at

the rate referred to in section 22 of the Courts Act 1981, in respect

of the whole or any part of the period beginning 6 weeks after the

date on which the determination of the Labour Court is

communicated to the parties and ending on the date of the order.

(3) An application under this section to the Circuit Court shall

be made to the judge of the Circuit Court for the circuit in which

the employer ordinarily resides or carries on any profession, trade,

business or occupation.

8I.—A document purporting to be signed by the chairman or a

vice-chairman of the Labour Court stating that—

(a) a person named in the document was, by a notice under

section 20 required to attend before the Labour Court

on a day and at a time and place specified in the

document, to give evidence or produce a document,

(b) a sitting of the Labour Court was held on that day and at

that time and place, and the person did not attend

before the Labour Court in pursuance of the notice or,

as the case may be, having so attended, refused to give

evidence or refused or wilfully failed to produce the

document, shall, in a prosecution of the person under

section 20, be evidence of the matters so stated without

further proof.

8J.—References in this Part to an employer shall be construed,

in a case where ownership of the business of the employer

changes after the contravention to which the complaint relates

occurred, as references to the person who, by virtue of the change,

becomes entitled to ownership of the business.

8K.—(1) A person who makes a disclosure which the person

knows or reasonably ought to know to be false is guilty of an

offence.

(2) A person guilty of an offence under this section is liable:

(a) on summary conviction, to a fine not exceeding €5,000

or to imprisonment for a term not exceeding 12 months

or to both,

(b) on conviction on indictment, to a fine not exceeding

€50,000 or to imprisonment for a term not exceeding 3

years or to both.

(3) Notwithstanding section 10(4) of the Petty Sessions (Ireland)

Act 1851, summary proceedings for an offence under this Act

may be instituted within 2 years from the date on which the

offence was committed or, if later, 2 years from the date on which

evidence that, in the opinion of a member of the Garda Síochána,

is sufficient to justify the bringing of the proceedings.

(4) For the purposes of subsection (3) of this section, a

certificate signed by a Superintendent of the Garda Síochána as to

the date on which the evidence referred to in that subsection

relating to the offence concerned came to his or her knowledge is

prima facie evidence thereof and in any legal proceedings a

document purporting to be a certificate issued for the purpose of

this subsection and to be so signed is deemed to be so signed and

shall be admitted as evidence without proof of the signature of the

Superintendent purporting to sign the certificate.".

This amendment proposes to replace the existing new section 8A, which is referred to in section 4 of this Bill as being inserted into the Prevention of Corruption Act 2001. The provision in the Bill before the House essentially applies to public officials, and it is by way of a form of whistleblower's provision to allow for public officials in certain circumstances to blow the whistle on criminal and bad behaviour.

The difficulty is that the provision contained in the Bill does not go far enough. In Fine Gael's view there is a need for a far wider and broader provision. In that context we have tabled a very substantial amendment, which will appear in the formal Dáil record of debates. However, I shall refer to part of the substance of what is being proposed. We are proposing new sections, 8A and 8B. The kernel of the amendment is in the provisions in the new section 8B, to be included in the 2001 Act. It reads:

8B.—Where an employee makes, in good faith and not for

personal gain, a disclosure to an authorised person and the

employee has reasonable grounds for believing that it will show

one or more of the following:

(a) that a criminal offence has been committed, is being

committed, or is likely to be committed;

(b) that a person has failed, is failing or is likely to fail to

comply with any legal obligation to which he is subject;

(c) that a miscarriage of justice has occurred, is occurring or

is likely to occur;

[No. 34a of 2008] [15 November, 2010]

Interpretation.

(d) that the health and safety of any individual has been, is

being or is likely to be endangered;

(e) that the environment has been, is being or is likely to be

damaged;

(f) that there is conduct which has led, is leading or is likely

to lead to a misuse or substantial waste of public funds;

(g) that there is conduct leading to concern about

questionable accounting, internal controls or auditing

matters;

(h) that the health or welfare of a person who is receiving a

health or personal social service has been, is or is likely

to be at risk;

(i) that the actions of any person employed has posed, is

posing or is likely to pose a risk to the health or welfare

of the public;

(j) that the information tending to show any matter falling

within any one of the preceding paragraphs has been, is

likely to be deliberately concealed or destroyed;

then disclosure shall be a protected disclosure under this Act.

Essentially, this is designed to ensure that where a protected disclosure is made, an individual cannot be prosecuted or dismissed. Where an employer attempts to dismiss an individual, there are appropriate remedies available to him or her and appropriate compensation can be ordered.

The new sections 8C and 8D, which are of relevance also, read:

8C.—Notwithstanding anything in the Official Secrets Act 1963

a disclosure of information to which section 15 relates shall be a

protected disclosure if the employee makes the disclosure in

accordance with section 17.

8D.—(1) A qualifying disclosure is made in accordance with

this section if the worker—

(a) makes the disclosure in good faith to a person prescribed

by Regulation made by the Minister for Finance for the

purposes of this section, and

(b) reasonably believes—

(i) that the relevant disclosure falls within any

description of matters in respect of which that

person is so prescribed, and

(ii) that the information disclosed, and any allegation

contained in it, are substantially true.

These are extremely important provisions and it is particularly appropriate that on this, of all days, this Bill comes before the House and these issues are being debated.

These are extremely important provisions. It is particularly appropriate that on this day of all days this Bill comes before this House and these issues are being debated. I want to give a very stark illustration of the possible use of this provision and how it might have been used in the past in the public good and to the benefit of the State and everyone living here.

Under existing law, if, three or four years ago, an employee of Anglo Irish Bank blew the whistle on some of the exotic conduct of the board of that bank and those in managerial positions at the bank, that employee could have been subject to dismissal. The dismissal would have been regarded as fair, the individual would have had no right to compensation and, indeed, in certain circumstances, could have found himself or herself at risk of criminal prosecution. To this day, we do not have adequate legislation to deal with and address the need for the protection of individuals who want to blow the whistle on what they see as corrupt and bad behaviour within the businesses in which they are employed, be they in a junior or senior position. The provisions in the measure before us deal essentially with public officials at governmental or European level. They do not deal with the protections that should be available in other circumstances to ensure that certain ethical standards are met, laws are complied with and where there is illegal conduct, the whistle is blown and action is taken. People who are whistleblowers should not be confronted with the dilemma of staying quiet and remaining in employment or blowing the whistle and becoming unemployed and, possibly because of the strength of the corporation in which they are employed, being portrayed as either nut cases or pariahs within society.

We could all in this House name some individuals who we are aware of who attempted to blow the whistle on events in recent years, but whose whistleblowing was ignored and they found themselves out in the cold as a consequence of their conduct. It is extraordinary that to this very day our legislation in this area is grossly inadequate. As a matter of principle, I, and the Fine Gael Party, welcome the fact that the House is now dealing with Report Stage of this Prevention of Corruption (Amendment) Bill 2008 and that the Bill is on the verge of being completed. As the Bill was published in 2008, it cannot be described as having been given priority or of being speedily processed through the House. I deplore the fact that we are not addressing issues more extensively in this area that deserved to be addressed. There is more than one elephant in this particular room.

I am being careful in what I say because I am very conscious that there is more information that could be put on the record of this House that might be utilised by those who are currently the subject of investigation to try to avoid having to face the full rigors of the law should any prosecution ever be taken. Our law in this area is not adequate. This Bill does not provide the comprehensive legal change that is required. This particular amendment - I am conscious we are on Report Stage and not Second Stage - is designed to address some of the issues that require to be addressed in our legislation to deal with the issue of whistleblowing, to provide protection to those who act in good faith on the basis of information made available to them and who seek to facilitate the investigation into alleged criminal conduct in circumstances in which at present it may not merely be difficult for them to do so, but may result in their loss of employment and being rendered one of the 450,000 individuals who are currently unemployed in our State.

This is an important amendment. It was also canvassed on Committee Stage on behalf of Fine Gael, but it was not taken on board by the Minister. I note the Minister is, in some of the amendments we are discussing that are within the confines of this Bill, trying to tidy up some aspects of the Bill. Knowing what we now know and being where we now are and aware of some of the extraordinary conduct within our financial institutions, there is an urgent public need to go beyond those operating as public servants and to comprehensively extend our law in this area with regard to whistleblowing. What we need is one particular statute, a consolidated statute, dealing with corruption and criminal offences relating to it and protecting whistleblowers as opposed to piecemeal legislation contained in a number of Acts going back now over 100 years, which makes the law difficult to tease out and understand for many who seek to ascertain where it is.

I have no optimism that this amendment will be accepted by the Minister. It is the Minister's form to reject every amendment that comes from the Opposition side of the House on every piece of legislation over which he has control. However, the amendment has been tabled in the public interest. There is a public interest priority and need that legislation such as proposed in this amendment be enacted and prioritised.

See this speech in context