Seán Fleming (Laois-Offaly, Fianna Fail) | Oireachtas source

Yes, absolutely, but as the public would see it, they are all very much within the system. The Garda force involves 13,000 gardaí. I urge the Minister to allow them some representative voice in drawing up the regulations. I have suggested bodies with whom I have not consulted but I was immediately struck by the omission. I am sure the Department of Justice and Equality deliberately intended that they would not be included. The legislation would be better if serving gardaí were happy with what was put forward in the regulations. We are back to a hardy annual that has arisen with every item of legislation we have had to date. We would like to see a draft of the regulations published before the legislation is passed because we will be asked to pass it without sight of the regulations for the Garda Síochána. The issue arose before Christmas in terms of the public service sick pay scheme. We were asked to pass legislation which the Government forced through the House without the regulations, which were dependent on a Labour Court judgment. The Minister is following the same approach. He wants us to pass the legislation without sight of the regulations that will flow from the legislation. I do not think the Minister has anything to hide. He is being good on this issue. He should go the whole way and prepare a draft of the regulations and engage in a consultation process before we get to Committee Stage. It could be the case that the changes do not need to be made by regulation but could be done legislatively, but given the probable level of detail it might be done by regulation. If regulations are required they should be published and laid before the Oireachtas immediately on the passing of the Bill rather than waiting for an unspecified time period for that to happen. I agree with the spirit of what the Minister is trying to do but I do not think he has gone far enough.

As to the purpose of the Bill, everyone remembers the recent case of Louise Bayliss, who temporarily lost her job after she spoke out about the conditions for female psychiatric patients in St. Brendan’s Hospital, Grangegorman, Dublin. The case highlighted the need for legislation. People in the health service realised the injustice that was being done in that regard. The legislation should be seen in the context of important public information being made available not through the mechanism being provided but also through the freedom of information process. Recently, the Minister was forced to extend freedom of information provisions to Irish Water, having previously said he would not do so. Tomorrow I will introduce a Private Members’ Bill, which I hope the Minister will accept, to bring EirGrid under the remit of freedom of information legislation. I hope the Minister will allow it to proceed to be debated during one of the Friday sessions. I would ask anyone who would suggest that EirGrid should not come under the remit of freedom of information legislation what planet he or she is on. I hope the Bill will get unanimous support in the House tomorrow.

The Bill does not contain any provision for oversight by any State body, which is an omission in itself. Every public and private body will be subject to protected disclosures being made, yet no mechanism is provided to assess how the process is working after one year or two years, whether it is operating in a consistent manner or if reasonable practices are being established. There is a need for an existing body – not a new organisation, as the Government seems to want to introduce every time a new process is established – such as the Standards in Public Office Commission or the Ombudsman to have the responsibility of monitoring the implementation of the legislation to ensure it is being done in a consistent manner across all relevant bodies.

It is not just in the interests of the country’s good reputation that we have such legislation but also in the interests of private companies and businesses, because many things could happen in such organisations of which senior managers, shareholders and directors are unaware. It is maintained that one in four cases of fraud and corruption worldwide are exposed by whistleblowers.

In 2010, the Director of Public Prosecutions, James Hamilton, in a rare media appearance, suggested the lack of legal protection for whistleblowers meant fewer witnesses in court. In turn, fewer witnesses meant fewer convictions and fewer convictions meant more white-collar crimes. The Central Bank Governor, Patrick Honohan, made a similar appeal. The absence of a robust whistleblower charter has left courageous people who highlight wrongdoing exposed.

Recently, a journalist argued that whistleblowers should get a reward if they uncover wrongdoing in an organisation. I am concerned such a move could lead to a rash of such reporting if people felt there were a reward. It could also lead to a practice similar to that of planning applications in which people withdraw their objections if they receive a small payment. We need to delve into this matter more. It does happen in the corporate and finance sector in the US, where it has not caused problems. When the system is more embedded here, we should examine its introduction. There was the recent disclosure of large-scale rigging of the London inter-bank offered rate, LIBOR, by a whistleblower.

We are all familiar with the case of Eugene McErlean, an AIB internal auditor, who reported issues at the bank but was removed from his position there. This legislation provides for compensation of up to five times one’s annual salary in such cases. Some of the employers’ bodies have suggested that this could be too severe for small organisations and that we should instead go along with just twice the salary as contained in the unfair dismissal provisions. I do not go along with that because twice a salary is nothing to a large bank or financial institution. In fact, it would pay five times the whistleblower’s salary to get rid of the nuisance. In the cases of financial institutions and whistleblowing, the Financial Regulator needs to conduct an investigation and, if it is found to have committed a wrongdoing, fine the institution too.

The biggest whistleblower case is that of Edward Snowden, who has had to criss-cross the globe to avoid American arrest. Many countries are afraid to take him in because there might be consequences from the USA. From the Snowden affair, we learned that the USA had bugged the phones of many heads of state. I do not know if the US authorities thought the Irish Head of State was important to enough to waste its time bugging his phone, but I have no doubt it was recorded sometime.

Legislation on whistleblowing may apply to many companies already operating in Ireland. For example, all companies listed on US stock exchanges are subject to US law stipulating that internal procedures be in place to facilitate protected disclosures of a financial nature. The intention of these laws is to protect shareholders rather than the public interest, however.

There was an extensive debate on this legislation at the committee on 18 April 2012. At it, we all agreed that whistleblowers need to be protected. This legislation is intended to provide immunity against civil liability for the whistleblower. Importantly, there is a stepped disclosure regime through which a worker can make a protected disclosure. This legislation will highlight the responsibility of employers to put mechanisms in place to investigate whistleblowing complaints and develop an organisational culture which supports whistleblowing. That is in the interests of every organisation. There needs to be a system in place that will encourage the reporting of wrongdoing down the line to the rarefied atmosphere of headquarter offices.

Some of the employers’ groups are concerned about the definition of a worker because it covers subcontractors, direct contractors and people on work experience. This is a broad definition. Practically everyone employed in any of the large State building projects will be a subcontractor, for example. I support the Minister’s approach on including subcontractors in the legislation. Some large companies may be uncomfortable with this, but tough on them because there is a larger interest at stake. It is in their interests that they know what is happening on their sites.

The issue of wrongdoing is very well defined in the Bill. The whistleblower does not have to prove the allegation but must have a reasonable belief that it is substantially true. Complaints cannot be vexatious or avenging. One of the more interesting discussions at the committee concerned whether the option of good faith has to be included.

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