Michael McNamara (Clare, Labour) | Oireachtas source

I join Deputy Seán Kenny in welcoming the Bill, although I do not agree with him that corruption in this State was confined to Fianna Fáil. Corruption is, unfortunately, part of human nature, particularly in Ireland, and to the extent that Fianna Fáil was corrupt, it reflected corruption in the body politic. A range of prominent international organisations have called for the introduction of whistleblower legislation, including the United Nations, Transparency International, the European Parliament and the G20. In Ireland we did not need international bodies to draw our attention to the need for such legislation, given our own difficult experiences. The Nyberg report on the banking crisis stated:

The very limited number of warning voices was largely ignored. Attempts by banking insiders during the period to send cautionary signals to market participants about escalating property values were dismissed as ill-informed and wrong. Doubters (the few that identified themselves as such to the Commission) in the main grew unsure over the years when nothing seemed to go wrong. It also appears that some stayed silent in part to avoid possible sanctions.

The Mahon tribunal's report stated:

The Tribunal is also of the view that whistleblower protection plays an important role in the detection of corruption offences and that the protection offered to prospective whistleblowers should be as robust as possible. While those who blow the whistle on corruption are protected to a certain extent under the Prevention of Corruption Act 2010 and the Criminal Justice Act 2011, the Tribunal believes that this protection could be made more robust. In particular, it is recommending that protection be extended to protect independent contractors from penalization where they blow the whistle on a person to whom they are providing services and that the limits on the amount of compensation which may be awarded to those penalized for whistleblowing be removed.

I am glad that Ireland is operating within the framework of the European Union and the Council of Europe with this Bill. I understand the Council is in the process of drafting recommendations at a committee of Ministers level which will apply to all 47 member states. I am glad that Ireland is pressing for robust protections in this context. This is something previous Governments failed to do and it is welcome that the Government is taking action on the issue. However, while I welcome the Bill, I have some concerns about the extent of its provisions. The issue of whistleblowers was discussed by the Parliamentary Assembly of the Council of Europe, following which a resolution and recommendations were passed in plenary session. The assembly recommended that the committee of Ministers develop recommendations, which it is now doing. The draft resolution stated whistleblower legislation should be comprehensive and cover relevant areas in law. It refers, in particular, to media law and the protection of journalists' sources. This is something that could be provided for to a greater extent in the Bill.

I am conscious that the relevant Minister is not in the Chamber. I will pause until the Minister of State at the Department of Arts, Heritage and the Gaeltacht, Deputy Dinny McGinley, is in a position to hear what I am saying because doing otherwise would defeat the purpose in being here.

Media law is an area which should be included in the Bill. I am struck by the limited recourse to the media available to whistleblowers under the Bill. If I am wrong, I would welcome a connection because it would allow me to support the legislation more wholeheartedly than I do. We do not want to create a situation where the media or Members of this House will be the first port of call for a concerned worker - it is welcome that "worker" is defined broadly and includes gardaí and members of the Defence Forces - but it is unreasonable to always expect him or her to begin by reporting internally. The Garda Síochána, for example, is a highly hierarchical organisation and one must assume that the command structure allows those at the top to be aware of what is being done in their name by those at the bottom. The reason Edward Snowden did not approach somebody inside the security services in the United States was he assumed - probably correctly - that he would have been silenced had he done so. Disclosures are allowed to Ministers and certain prescribed persons and there is provision to enable the whistleblower to report elsewhere if a prescribed person does not act or moves to destroy relevant information.

I draw the attention of the House to two sections of the Bill which refer to special cases. The section on law enforcement provides for the disclosure of relevant information other than that pertaining to defence, international relations or intelligence matters which might reasonably be expected to facilitate the commission of an offence or impair the enforcement or administration of, or compliance with, any law or legal proceeding. This provision is subjective and I would worry about whistleblowers faced with such a lack of concreteness. Should they take the risk that they might not be protected under the Bill?

Even if they run that risk, if they decide they are going to take their chances, the disclosure is not a protected disclosure unless it complies with sections 6(1)(a), 7 or 9. Section 6(1)(a) relates to a disclosure to an employer, section 7 to a disclosure to a prescribed person and section 9 to a disclosure to a legal adviser. Does that mean the person can never make a disclosure to the media which will be protected?

Section 18 relates to security, defence, international relations and intelligence. I suppose there are many who wonder about the extent to which the Irish security apparatus has information which is really of international significance or affects international relations and intelligence, but I would like to think that it does, particularly with regard to Shannon Airport. There has been much controversy of late with regard to the troops who are going through Shannon Airport. It has to be borne in mind that those troops who go through Shannon Airport are going in pursuit of sanctions, methods and goals which have been endorsed by the United Nations and are fully lawful. There is much discussion about this. I have met Reprieve, an international organisation based in London which does much work on the death penalty, but also on drones and rendition flights. Rendition flights are wholly at odds with international law, as are the operation of drones and unmanned warplanes which are used to kill civilians in the Middle East and central Asia, primarily in Afghanistan, Pakistan and Yemen. If these were to be going through Shannon, that would be highly unlawful and at odds with international law. If somebody was being rendered through Shannon, that would be abhorrent to international law and the law of the State, and yet if somebody were to obtain that information, he or she would have to make the disclosure in accordance with sections 6(1)(a), 8 or 9. A disclosure under section 6(1)(a) is to an employer. One would have to assume that the person's employer might do very little about it in the circumstances, particularly because of the gravity of the effect the disclosure would have. A disclosure under section 8 would be to the Minister. Ministers, we have been told, always accept blandly assurances from the American ambassador. A disclosure under section 9 would be to the person's legal adviser, by which time the person would possibly be prosecuted under some incredibly draconian legislation. While I welcome the legislation, its parameters could be broadened considerably to be a badly needed beacon for whistleblower legislation in Europe.

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