Brendan Howlin (Wexford, Labour) | Oireachtas source

We had a good debate on this matter on Committee Stage, when I set out the legal assessment that I had been given by the Attorney General. I also indicated that I would consider how the points made by Deputy McDonald might be addressed in light of that legal advice. The Office of the Attorney General has advised that inclusion of breaches of non-statutory codes of practice or professional codes as wrong-doing under this legislation would not be legally consistent with the purposes of the Bill. I fully understand the basis of the amendment and its refinement, but the legal analysis that I am bound to accept is that, where professional bodies or representative organisations apply particular codes or standards to their members that do not have the force of law, it is not possible to apply sanctions under legislation on a person who is alleged to have been penalised for reporting a breach in such codes or standards.

The basic premise of this Bill is that the report relates to some unlawful action or breach of a formal legal obligation. In such circumstances and given the imperative to uphold the law, where an employee reports his or her concerns regarding a potential breach of the law in accordance with this legislation, there is a compelling public interest to safeguard such an employee from any victimisation. The legal assessment is that the protected disclosures legislation could not sustain the imposition of high levels of compensation, which are implicit in this Bill, of up to five years' compensation in respect of an issue that did not constitute a breach of law. On the basis of the Attorney General's advice, I am therefore not in a position to accept Deputy McDonald's amendment.

As I promised, however, I have reflected on how the amendment's intention could be recognised within the overall framework of protecting whistleblowers, as that is important. This is the aim of my approach to the legislation. In that context, I am examining how the procedures to be put in place in all public service bodies for dealing with protected disclosures could address the important issue of ensuring that public service employees who have concerns regarding breaches of professional codes or professional standards can make such reports without any concern regarding possible retribution or retaliation by the employer. We can implement this in our public service and Civil Service codes.

Section 5 does not capture the specific point raised by the Deputy. Rather, it relates to a multinational company and reporting some wrong-doing that occurred in a foreign jurisdiction. That wrong-doing would need to be a breach of the law.

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