Brendan Howlin (Wexford, Labour) | Oireachtas source

We had considerable debate on this issue and I set out on Committee Stage that I regarded this amendment as undermining in a significant way the basic architecture of the legislation, and it is modelled on the best international practices.

The Deputy's amendments propose the deletion of section 7(1)(b)(ii) that an external disclosure - this is to a person outside the company such as a journalist or somebody else - to a prescribed person under section 7 must be based on reasonable belief of the substantial truth of the information disclosed. That is the criterion to afford the protections to the individual. She also proposes the deletion of a similar requirement in section 10(1)(a) regarding external disclosures, for example, to the media.

It should be clear that the simple focus on the substantial truth test in the provision does not tell the full story. That test, in both cases where the amendments seek change, is subject to reasonable belief. For example, in section 7(1)(b)(ii), the test for the external disclosure to be afforded those protections is that the disclosure must have reasonable belief that the information disclosed, and any allegation contained in it, is substantially true. There are two hurdles. They must have reasonable belief that they are substantially true. They do not have to be fully true; they do not have to be true at all. One just has to have reasonable belief that they are substantially true. It is not a terribly high threshold but it is important. The notion that we could have very significant protections that would afford one five years salary, for example, if one did not have a belief that they were substantially true, before one gave them to an external person, seems to be a blow at what we are trying to do here. The whistleblower must have reasonable belief in the substantial truth of the information. The information may or may not be true. If he or she can show that he or she had reasonable belief that they were substantially true, he or she has met the criterion. By any objective measure I believe that is a reasonable threshold for enabling the disclosure into the public domain of what might be very damaging allegations.

We have to have balance in the way we construct this; otherwise, we will undermine the legislation. If there is no requirement to have reasonable belief of substantial truth before one makes very damaging accusations in the public arena, and one is protected by law for that, we could not hold public confidence in the whistleblowing legislation we are putting forward. As I said, the weakening of the threshold would be a detrimental blow to the intended operation of the regime we have set out. For that reason, and I am consistent with what I said on Committee Stage, I do not accept the amendments put forward.

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