Brendan Howlin (Wexford, Labour) | Oireachtas source

I move amendment No. 17:

In page 10, line 32, after "advice" to insert "(including advice relating to the operation of this Act)".

Deputies will recall that on Committee Stage these amendments were the subject of discussion in the context of the circumstances in which advice from a solicitor or a trade union official on a legal matter constitutes what is captured as "legal advice". On the basis of my commitment to Deputies on Committee Stage, I asked my Department to consult further with the Office of the Attorney General on this particular legal issue. That office has confirmed that advice provided by trade union officials to members on, for example, how this legislation will operate or how it might be utilised, would fall within the scope of the term "legal advice" in exactly the same way that advice from a solicitor would be characterised and protected as legal advice.

The Attorney General's office also advises that it would not be prudent to replace the term "legal advice" in this provision with the word "advice" as, in the case of trade union officials, it would create uncertainty as to the circumstances where a protected disclosure may have been made and when a whistleblower might expect to benefit from the provisions provided under the legislation. For those reasons, the legal assessment is that the term "legal advice" should be retained in the legislation. The Attorney General's Office did, however, endorse the proposal that a text in parenthesis could be included in the provision to make it clear in the legislation that "legal advice" extends to "advice" on the operation of the protected disclosures regime. This is the purpose of amendment No. 17.

I have also carefully considered Deputy McDonald's proposal that the disclosure channel be extended beyond solicitors and trade union officials to, as proposed in her amendment, "other suitably qualified individuals who give advice on legal issues and legal rights as part of their public advocacy role". The legal assessment is that this amendment is not necessary in light of the existing provision which allows for a protected disclosure, using this provision, to be made to any solicitor. In such circumstances, if any public advocacy organisation is willing to provide legal advice from a solicitor based on operation of this legislation, that advice is captured by the definition already in place. The Deputy may have in mind extending the scope of the provision to allow a protected disclosure to be made to a paralegal or a person without legal qualifications. I have considered this and do not believe it is wise to enable a situation in such circumstances that advice on the operation or use of the legislation - in essence, legal advice - is provided by an individual who is not legally trained. Given the complex legal issues that can arise in whistleblowing cases, the critical importance of the worker's decision-making on a step-by-step basis and the risk that the advice received would be not sufficiently well informed or ground in proper legal basis and of the person being misguided by inappropriate legal advice, I have decided not to move in that direction. Given the existing role and experience of trade unions in representing the interests of their members - I worked out of a trade union office for many years - and the legal advice available to trade unions I would have some concerns if we moved outside those parameters in relation to this Bill.

Deputies will note that I am also proposing a revised wording of section 9 arising out of amendments No. 17 and 19, which encompass an official of an exempted body within the meaning of the Trade Union Act 1941, to provide that an exceptional body within the meaning of section 6 of the Trade Union Act 1941 includes bodies which were included on the register maintained by the Registrar of Friendly Societies for the purposes of representing workers in their relations with employers or to act as representative bodies for particular interest groupings.

See this speech in context