Brendan Howlin (Wexford, Labour) | Oireachtas source

I move amendment No. 28:

In page 14, lines 34 and 35, to delete “shall take all reasonable steps to avoid disclosing” and substitute “shall not disclose”.

This group of amendments relates to an important issue at the core of the Bill, that of seeking as much as possible, consistent with the objectives of the legislation and other important policy objectives, to differentiate between the message and the messenger through the safeguarding of the identity of the potential whistleblower. We had an extensive debate on this issue on Committee Stage

I am very cognisant of the concerns raised by Deputies Mary Lou McDonald and Seán Fleming to the effect that the duty imposed on the holder of a protected disclosure in section 16(1) is qualified by the test that such a holder shall take all reasonable steps to protect the identity of the discloser. There is clearly a risk that the qualification may be interpreted in practice in a permissive way – that was the argument made by Deputies opposite - notwithstanding the risk of legal action for disclosing the identity of a whistleblower. However, we must also be aware of the fact that circumstances will arise where it may not be possible to safeguard completely the identity of a whistleblower, particularly where disclosing the identity of the whistleblower in a restricted and limited way is essential for action to be taken to address or redress the issues being reported. As I committed to doing, I have reflected further on the balance between these intentions since we had a good, robust debate on Committee Stage.

The effect of the amendment I am tabling, No. 28, will be to remove the "all reasonable steps" qualifier from section 16(1) so as to make the duty to protect the identity of the whistleblower absolute in the first instance. Deputies will, however, acknowledge that it is essential that recipients of disclosures are not precluded from taking necessary action on foot of the information disclosed to them because it may require them to disclose the identity of the whistleblower. If there was only one potential source of information, that might become obvious. We cannot have circumstances where the person is precluded from actually addressing the wrongdoing concerned because the mere addressing of it would inadvertently identify the one person who might be able to report the wrongdoing.

The amendment to section 16(2), therefore, makes explicit the specific and limited circumstances that objectively could warrant the departure from what I am including, the mandatory prohibition on the disclosure of the identity of the whistleblower. The legal assessment is that the effect of amendment No. 29 will be to place the burden squarely on the recipient of a disclosure to demonstrate, where the identify of the whistleblower has been revealed, that all reasonable steps were taken to avoid such a disclosure. I understand the legal assessment is that the test will set a high standard for the recipient of the disclosure in terms of protecting the identity of the discloser. I am confident that my proposed approach, when considered in conjunction with the provisions of section 16(3), whereby the holder of a disclosure can be subject to an action for any loss arising, represents a significant strengthening of the Bill in the direction Deputies sought, that is, safeguarding in so far as is prudent and practicable the identity of whistleblowers consistent with the concerns raised by Deputies opposite but also with making sure the wrongdoing is dealt with.

Amendments Nos. 30 and 31 are also in the group. Having considered the concerns raised by Deputies about the necessity of the recipient of the disclosure to seek express written permission for the disclosure from the discloser in amendment No. 30, it seems that given the absolute duty to protect the identity of the discloser we are now enshrining in the Bill, the proposed amendment is unnecessary and I hope the Deputy will not press it.

Amendment No. 31 proposes the deletion of that part of section 16(2)(b) that lists the circumstances in which the duty to protect the identity of the discloser does not apply, particularly where a breach is required for the effective investigation of the wrongdoing. I refer to where the reported wrongdoing cannot be fixed without such a breach. It is essential that the holder of a disclosure is not prevented from taking such action. That is common sense and I hope the Deputies opposite will accept this.

The deletion of line 7 in page 15 would place a very high hurdle in the path of a recipient of a protected disclosure who is required to investigate an alleged wrongdoing. I am satisfied that the combined effects of the amendments I am proposing, Nos. 28 and 29, will be to maximise to the extent that is reasonable, prudent and right the protection of the identity of the whistleblower, meet the valid concerns raised by Deputies on Committee Stage.

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