Leo Varadkar (Dublin West, Fine Gael) | Oireachtas source

The Protected Disclosures Act was and is very reforming and innovative legislation. I think former Deputy Pat Rabbitte, the new chairman of Tusla, originally brought forward the legislation, although it may have been another Deputy. I remember supporting it from the Opposition benches as Deputy Howlin, as Minister, and other members of the previous Government brought it through the Houses. It was a good step forward in reforming our legislation, protecting whistleblowers and ensuring serious allegations were properly investigated. It was and is part of a suite of legislation to improve ethics in business and public office. The Regulation of Lobbying Act which is held up internationally as an example of the proper regulation of lobbying is another part of that suite of legislation. Lobbying is regulated far more properly in Ireland than in other countries. We also have legislation which delimits corporate donations and ensures transparency in that regard. Ireland is very different from the many democracies in which there is no protection for whistleblowers, lobbying is unregistered and very opaque and people can receive significant public or private donations. Some of the steps taken in Ireland in that regard in recent years set a very good example internationally, but we are far from perfect. No country is perfect. We must always get the balance right to ensure whistleblowers are protected, allegations are properly investigated and innocent and decent people and organisations are protected from being falsely accused. The latter has happened, as evidenced by the Charleton tribunal which had a module on Maurice McCabe and another on allegations made by Keith Harrison.

One can see how different those cases were. I do not want to go into that in too much detail but it does demonstrate to us the extent to which we need to support whistleblowers, listen to them, protect them and investigate their claims. We also need to be cautious and sensible enough to know all claims and allegations are not true and that when false allegations and claims are made by people and are propagated in this House and picked up by the media, they can do enormous harm to the falsely accused. We need to get the balance right. We are still learning as a society how to get it right.

There is EU legislation coming down the line. As Deputies will be aware, a European directive on whistleblowing will help to inform our legislation. Problems do arise. Having had a little experience dealing with some protected disclosures, I realise a problem can arise in particular when the protected disclosure is not the only track that the whistleblower is following. I refer to when there is a connected employment dispute or, as is sometimes the case, a connected court case where those concerned are suing for financial damages. It can get very messy where there is a case unfolding, potentially in the courts, or a case with solicitors for financial damages, with a protected disclosure being sent to a public body and with aspects of it being raised in this Chamber and the media. That can create a real mess in dealing with the matter. I wonder whether it would be better if protected disclosures were dealt with in their own right rather than ending up connected to other disputes. That is where it can get extremely difficult indeed. One could have people claiming legal privileges and so on because protected disclosures are also connected to a claim going through the courts. That is where it can get very difficult to manage.

Deputies Howlin and Martin were correct in their remarks on the cultural shift. We do not want the Protected Disclosures Act to become the way people make complaints. It should be something that is used in reserve cases. People should feel they can speak up, make complaints and call out wrongdoing when they see it. They should have confidence that their supervisors and managers will take their complaints seriously and investigate their allegations and that, if not, the individuals above them will deal with them properly.

The statutory review was published in July following public consultation. There were 25 submissions from a variety of public bodies, interest groups and members of the public. The review considered international developments, including comparative analysis of legislation in other countries, and it details some of the early results of the implementation of the Act. Across 212 public sector bodies, 370 protected disclosures were received by the end of 2016. The review shows the Act is viewed as setting a positive example internationally, and it has led broadly to positive outcomes. It highlights some implementation issues that are being considered by the Department of Public Expenditure and Reform, including providing absolute confidentiality to disclosers while balancing fair procedures for other individuals concerned, relating the Act to the GDPR legislation and other employment policies, as I alluded to, and also disclosures that are made through multiple channels. There is also a difficulty associated with how one can investigate anonymous disclosures when there is nobody to interview.

With regard to amendments, the matter is being dealt with by the Minister for Public Expenditure and Reform. Any further amendments to the Acts will be considered in the context of the discussion taking place at EU level on the EU directive on whistleblowers. As I indicated, we will most likely leave the Act as it is but when the European directive is finalised we will use its transposition as an opportunity to amend our own Act.

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