Dermot Ahern (Louth, Fianna Fail)

We discussed amendment No. 1 on Committee Stage and I outlined Government policy regarding the protection in law for persons making reports in good faith. Previous mention was made of the corruption laws in our country. Significant anti-corruption legislation is on our Statute Book. The Prevention of Corruption Acts, 1889 to 2005, relate to this area. I indicated that I have asked my officials to produce consolidated legislation, once this Bill is passed, containing all provisions relating to corruption.

The principal purpose of the legislation is to ensure compliance by Ireland with the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. However, it should be pointed out that whistleblower protection provisions in this Bill are not confined to bribery of foreign public officials and apply to any person reporting his or her opinion that an offence under the Prevention of Corruption Acts has been committed. The Bill is quite extensive in its scope and its provisions are applicable to a wide variety of persons as set out in the Prevention of Corruption Act 2001. The anti-corruption legislation we have covers any person employed by or on behalf of another, or any person employed by or acting on behalf of the public administration of the State.

There are ongoing issues relating to the investigation of what went wrong in Anglo Irish Bank and I assure the Deputies that I understand from discussions with the Garda Commissioner and the Garda Síochána that existing legislation is sufficient in respect of any criminality that may have occurred in that instance. Clearly that is yet to be decided. With regard to this piece of legislation, a person employed in either the public or private sector who suspects an offence under the prevention of corruption legislation is being committed and reports that submission will be protected. The communication must be made in good faith and not be frivolous, vexatious, intentionally false or misleading.

The protection afforded is two-fold. First, a person will have no liability in damages arising from that communication and, second, if a whistleblower makes or wishes to make a report in confidence, he or she may do so. The provisions in this Bill have been drafted with the intention of ensuring protection for the whistleblower. They clarify the rights of redress open to an individual who may be penalised by an employer for reporting a corruption offence. In drafting this measure, it is my intention that whistleblowers with a genuine belief that a corruption offence is taking place should be given every encouragement to report that opinion to an appropriate person. It is my intention that the full protection of the law should be available to these people.

Deputy Shatter proposes to provide in this Bill whistleblower protection for a broad and diverse range of issues and sectors, whereas the purpose of the Bill as discussed today is to afford protection to whistleblowers reporting suspected corruption offences. The amendment as it stands does not relate only to offences contained in the Bill but proposes to protect disclosures in a wide variety of circumstances unconnected with corruption offences. His amendment addresses matters as diverse as health and safety, auditing, miscarriages of justice, environmental damage and much more. These are not the issues under consideration with this Bill, as I indicated on Committee Stage when this amendment was proposed.

As Members will know, it has been Government policy for some time to deal with the issue of protection for whistleblowers on a sectoral basis rather than on an omnibus basis. This is a very firm commitment reflected in a wide variety of Bills. Deputy Shatter's amendment and the Private Members' Bill published previously by Deputy Shatter assumed that a single all-encompassing whistleblower provision is the best way to proceed. I have already set out in a parliamentary question today to Deputy Varadkar how the matter was considered by the Government a number of years ago, with certain legal obstacles identified which indicated that the application of whistleblowers' protection within a single statute would not be effective in the variety of circumstances in which it would apply. The Government does not want to introduce whistleblower protection which, if tested in the courts, might be found wanting. What is needed are solutions that will work well in the particular circumstances of each case. That is ultimately why, on balance, it became clear that a sectoral approach to the issue would be more effective and efficient.

A wide range of Bills have already been passed by this House with whistleblower provisions specific to those particular areas. These include the Protections for Persons Reporting Child Abuse Act 1998, the Competition Act 2002, the Safety, Health and Welfare at Work Act 2005, the Garda Síochána Act 2005, the Employment Permits Act 2006, the Health Act 2007, the Communications Regulation (Amendment) Act 2007, the Consumer Protection Act 2007, the Medical Practitioners Act 2007, the Chemicals Act 2008, the Labour Services (Amendment) Act 2009, the National Asset Management Agency Act 2009, the Charities Act 2009, and the Inland Fisheries Act 2010. In addition, a number of Bills currently in preparation contain whistleblower protections, including the Employment Agency Regulation Bill 2009, the Local Government (Mayor and Regional Authority of Dublin) Bill 2010, the Employment Law Compliance Bill 2008, the Property Services (Regulation) Bill 2009 and the Bill being considered by the House today, all of which contain similar protections specific to certain areas.

The Garda Síochána Act has particular whistleblower protection and provisions relevant to the area but it is more comprehensive; it may not necessarily be applicable in other areas. The way whistleblowing in the Garda Síochána Act is framed with the independent person is very different from whistleblowing provisions in other pieces of legislation. The issue is better because it is tailored. On the advice of the Attorney General, the Government decided to deal with whistleblowing on a case by case basis rather than dealing with an all-encompassing piece of legislation as proposed by Deputy Rabbitte.

Amendment Nos. 2 and 3 from Deputy Rabbitte provide for the insertion of the words "or suspicion" after the word "opinion" into section 8A(1) of the 2001 Act, and the substitution of "may have been or may be being" for the existing wording of "has been or is being" thereafter. As I stated in the course of the debate on Committee Stage, the advice which I received was to the effect that an opinion can be founded on a belief, which would encompass actual knowledge or suspicion. Given that an opinion can be founded on a suspicion, my advice was that the addition of the word "suspicion" was not required. Accordingly, it is considered that the addition of the words in the amendment would not actually broaden the existing meaning of the provision nor would the amendment assist in further clarifying the test which would determine whether the protection under this measure for a person making reports in good faith would apply.

Deputy Rabbitte will recall the official amendment to this section which was agreed on Committee Stage. The earlier test required before the whistleblower could be afforded protection against civil liability under this section was simply whether he or she had acted "reasonably and in good faith" in forming the opinion and communicating it to the appropriate person. On Committee Stage, further tests were introduced, which were agreed by the committee, which must be passed before the potential whistleblower obtains protection from liability in damages under this provision.

The section provides that the whistleblower is not liable in damages or other forms of relief unless when communicating the opinion regarding an offence under the legislation providing he or she did so not knowing or being reckless as to whether the view was false, misleading, frivolous, vexatious or giving information that the person knew to be false or misleading. In this section I am endeavouring to secure a reasonable balance in encouraging whistleblowers to come forward and protecting their rights while also paying due regard to the rights and entitlements of the person subject to the whistleblower's report. Taking all the factors into account I am of the view that the existing text, providing protection for reports in respect of an offence which has been or is being committed, is the best wording and is likely to be the most effective.

I am proposing amendment No. 21. As I mentioned on Committee Stage, my Department received observations from An Garda Síochána which raised certain issues about the implications of attempting to provide for absolute confidentiality in the context of investigation of certain cases where the whistleblower could come forward to expose corruption. As the Bill stands, there is a reference to the Garda Commissioner disclosing the identity of a confidential communicator for the purpose of investigating the alleged offence but not for the purpose of prosecuting the offence. The provisions of the Bill as it stands might have been interpreted in a way which would have hampered disclosure of the identity of the whistleblower to the DPP. Such disclosure by the Garda Commissioner might be necessary to enable the alleged offence to be investigated and prosecuted.

The amendments to Schedule 2 will allow for limited disclosure of the whistleblower's identity where the Garda Commissioner is satisfied that disclosure to a member of the Garda or a civilian staff member or the DPP is necessary for the investigation or prosecution of the alleged offence. In proposing this amendment, I assure the House that I have considered the matter very carefully in light of the concerns raised by the Garda and the advice of the Attorney General. I am eager to ensure that the rights and entitlements of all the parties involved are given due weight. My aim is to provide the requisite level of protection for whistleblowers while ensuring that those who engage in corruption can be successfully brought to book for their actions.

While we had a good discussion in this regard on Committee Stage, I cannot accept amendments Nos. 1 to 4, inclusive. I repeat the general point that the Government decided a number of years ago to deal with these issues on an issue-by-issue basis. The record speaks for itself in regard to the address of these issues in the many pieces of legislation that are being and have been drafted and passed by this House and which are specific to those particular areas.

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