Michael McGrath (Cork South Central, Fianna Fail) | Oireachtas source

I move: "That the Bill be now read a Second Time."

I am pleased to have the opportunity to present this long-awaited Bill to the House which will provide for the transposition of the EU whistleblowing directive into Irish law. This directive is among the most far-reaching and most significant pieces of legislation ever to be adopted by the EU.

The benefits to society and democracy from protecting people of conscience who speak up about wrongdoing are clear if we reflect for a moment on the range of issues that would not have seen light of day if not for the courage of a whistleblower. Sadly, for too many, the decision to highlight wrongdoing often comes at a great personal cost to the individual and his or her family. This can have a chilling effect, putting off others from stepping forward. Whistleblowers play a vital role in a functioning democracy. We in the Oireachtas must accept our responsibility for what happens to them. We must ensure that we have strong and effective laws to protect people who have the bravery to speak up about wrongdoing. This Bill represents a big step in the right direction in this regard.

Ireland, of course, has a strong legislative foundation in the area of whistleblower protection. In 2014, we were just the sixth country in the EU to introduce comprehensive legislation for the protection of whistleblowers in the form of the Protected Disclosures Act. The 2014 Act was an innovative piece of legislation for its time and remains highly regarded as one of the strongest whistleblower protection laws in the world. While this may be the case, for some, however, the protections in place have not gone far enough. Listening to the contributions from whistleblowers in the Joint Committee on Finance, Public Expenditure and Reform, and Taoiseach during pre-legislative scrutiny of this Bill, it is clear that we must strive to do better at protecting those who report wrongdoing.

Returning to the directive, many of the provisions contained in that directive are already in place here in Ireland thanks to the 2014 Act. The Act prohibits any form of retaliation against a worker who makes a protected disclosure and also protects workers from civil and criminal liability for any disclosure of confidential information necessary to report a wrongdoing. The Act provides multiple channels for workers to report concerns so that if one channel fails to operate as intended, there are other avenues through which workers can speak up safely.

The directive, however, goes much further in terms of its application. In particular, it significantly widens the scope of persons who are entitled to protection for speaking up. It will require many employers to establish formal channels and procedures for their workers to report concerns about wrongdoing. It also requires recipients of disclosures to take very specific steps within clear timelines to follow-up on the reports they receive.

I welcome all of these changes, which will further strengthen and enhance our legislation and ensure Ireland remains at the leading edge in terms of the legal protections for whistleblowers.

We must also take this opportunity to reflect on the impact the Protected Disclosures Act has had since it was signed into law in 2014 and consider what enhancements and improvements we can provide beyond the directive in this regard, as was committed to in the programme for Government. The findings of the 2018 statutory review of the Act and the responses to the public consultation on the general scheme have all fed into the development of this Bill. A key finding of the statutory review was that the legislation needed to give clearer direction to recipients as to what to with the reports they receive. The new requirements arising from the directive go a long way towards addressing this. The statutory review also raised significant concerns about how disclosures made to Ministers under section 8 of the Act should be handled. In many cases, reports are being made in the first instance to Ministers, which was never the intention of the Act. Furthermore, reports are in some cases made simultaneously or in quick succession to both the employer and the Minister or other reporting channels without affording time for the matter to be addressed by the initial recipient. This was also identified as a concern by Mr. Justice Peter Charleton in the third interim report of the disclosures tribunal. The changes to the ministerial channel proposed in the Bill are intended to address these issues.

Another issue for Ministers is that they often find they are limited in what they can do to follow up on certain reports, especially if the matter involves a statutorily independent public body. The Bill therefore provides for ministerial disclosures to be transmitted to the new protected disclosures commissioner, who will take on responsibility for directing reports to the most appropriate persons to address the matter concerned. This will ensure an independent and thorough follow-up of all protected disclosures sent to Ministers of the Government. The commissioner will also take on the role of prescribed person of last resort, ensuring there is always an independent external person for workers to report to, if needed. This role will be taken on by the Ombudsman and is in line with trends in other countries where national ombudsmen have been given similar responsibilities in this area.

Another recent development the Bill must take into account is the ruling of the Supreme Court of 1 December 2021 in the Baranya case, which found that an individual raising a private grievance can also attract the protections of the 2014 Act. While the court agreed that the intent of the Act was to protect persons who report wrongdoing solely in the public interest, the wording of the Act allowed for a broader application. This anomaly cannot be allowed to stand and the Bill makes provision in this regard.

Last, but by no means least, in terms of the development of the Bill, I would like to make a few points about the pre-legislative scrutiny undertaken by the Oireachtas Joint Committee on Finance, Public Expenditure and Reform, and Taoiseach. I thank the committee for its thorough and comprehensive report, which clearly reflects the strong engagement and personal interest its members have in this topic. The pre-legislative scrutiny report contains some 60 recommendations. Many of the committee's recommendations are provided for in the Bill. For example, I am repealing section 5(7A) of the principal Act, which imposed a public interest test on disclosures of information containing trade secrets. I am providing that prescribed persons must accept and follow up on anonymous disclosures, unless prohibited by another enactment. I am providing for the new office of the protected disclosures commissioner to be established as a statutorily independent entity free to discharge its functions under the Act as it sees fit. I am also significantly expanding and enhancing the collection and publication of statistics on the number of protected disclosures made, so as to better evaluate the impact of the Act and inform future policy development in this area.

The work of considering the committee's recommendations is not done. I have referred a number of them to the Attorney General for further consideration. Implementing some of the recommendations may be complex from a legal perspective and more time is needed for this consideration. Given the deadline of 17 December 2021 for the transposition of the directive, I did not want to delay the publication of the Bill any further. Accordingly, I will bring a number of amendments during the later Stages of the Bill in respect of some of the committee's recommendations. I again thank the committee for its significant work, which took seven months to complete. I wanted to await the conclusion of the pre-legislative scrutiny phase before proceeding to publish the full Bill.

In particular, I acknowledge that there was disappointment in some quarters that the Bill does not address the status of existing protected disclosures that have been made before this new legislation comes into force. I acknowledge that this is a very important issue. It is a complex issue but it is one area in particular on which I have asked my officials to work with the Attorney General with a view to bringing proposals on Committee Stage.

I now turn to the main provisions of the Bill. As this is amending legislation, some sections need to be read in conjunction with the Principal Act, the Protected Disclosures Act 2014. Some sections of the Bill are also quite technical. In this regard, I will make my officials available to Members if any further technical briefing on the Bill is required. The Bill comprises the following parts. Part 1, comprising sections 1 to 3, inclusive, contains a number of standard legislative provisions concerning the Short Title and commencement and, as amending legislation, identifies the Protected Disclosures Act 2014 as being the principal Act being amended. Section 3 provides for the repeal of certain provisions of the Principal Act rendered redundant by the amendments provided for elsewhere in this Bill.

Part 2 comprises six chapters, each of which in some way amends or extends the Principal Act. Chapter 1, comprising sections 4 to 7, inclusive, sets out the scope of application of the legislation. Section 4 sets out a number of important definitions used in the legislation. Of particular note here is the amended definition of "worker", which provides for the expansion of the scope of the Act to include: volunteers, board members, shareholders and job applicants, as required by the directive. Section 5 is a standard provision concerning the making of orders and regulations under the Act.

Section 6 amends the definition of a "protected disclosure" to explicitly cover any breaches of the EU laws specified in the material scope of the directive. This section also provides for the insertion of a new subsection (5A) into section 5 of the principal Act that provides that the Act does not apply to personal employment grievances that solely affect the worker making the complaint and no one else. This addresses the findings of the Supreme Court in the recent Baranya case. Section 7 provides that persons who make anonymous disclosures are still entitled to the protections of the Act if their identity is deduced and they suffer retaliation.

Chapter 2, comprising sections 8 to 13, inclusive, concerns the design and operation of internal and external reporting channels to employers and prescribed persons. Section 8 provides that private sector entities with 50 or more employees must establish formal whistleblowing channels. In acknowledgment of the administrative burden placed on certain businesses, a derogation has been obtained for those businesses which employ between 50 and 249 employees. Those employers have until December 2023 to establish formal whistleblowing channels. This section also provides for the Minister to lower this threshold in certain sectors where there is a high risk of serious wrongdoing, if required.

Section 9 sets out how the internal channels should operate and requires that all reports be acknowledged within seven days, the manner in which reports should be followed up and that feedback should be given to the reporting person within three months. These rules are at the core of the directive and, as Members will see, are therefore restated and reaffirmed throughout the Bill.

Section 10 similarly requires prescribed persons to establish reporting channels for workers in the sectors they regulate and section 11 provides again that prescribed persons must acknowledge, follow up and give feedback to reporting persons in respect of the reports they receive.

Section 12 concerns reports made to Ministers of the Government and sets out new conditions for making these reports and requires that Ministers shall transmit all reports they receive to the new protected disclosures commissioner. Section 13 amends section 10 of the principal Act and sets out new conditions for the making of public disclosures. These conditions are significantly simplified compared with the original provision in the principal Act.

Chapter 3 concerns the new office of the protected disclosures commissioner and comprises sections 14 and 15, inclusive. Section 14 inserts six new sections, namely, 10A to 10F, inclusive, into the Act after section 10.

Section 10A provides for the establishment of the new office of the protected disclosures commissioner in the Office of the Ombudsman. Section 10B provides for the commissioner to have formal channels and procedures for handling disclosures in the same manner as apply to prescribed persons.

Sections 10C and 10D concern the handling of disclosures made or transmitted to the commissioner. In the first instance, the commissioner shall attempt to identify either a prescribed person or another suitable person with the competence to follow-up on the matter reported and transmit the report to that person for further action. If no person can be found, the commissioner shall apply the standard rules as regards acknowledgment, follow-up and feedback as required by the directive in respect of prescribed persons.

Section 10E provides that where a report is transmitted to a third party not subject to the requirement to have formal reporting channels, that person shall follow the standard rules as regards acknowledgment, follow-up and feedback. Section 10F provides for powers of investigation for the commissioner in the event that direct follow-up of a report is required.

Section 15 inserts a new schedule to the Act concerning a number of standard provisions regarding the keeping of accounts and the staffing of the office of the protected disclosures commissioner.

Chapter 4, comprising sections 16 to 20, inclusive, transposes a number of provisions of the directive applicable to internal reporting to employers and external reporting to prescribed persons and the commissioner. Section 16 obliges persons responsible for handling protected disclosures to keep the identity of reporting persons confidential, overhauling a similar provision in the principal Act. Section 17 introduces a new requirement to similarly keep the identities of other persons named in a disclosure confidential. Section 18 provides for the restriction of certain data subject access rights to prevent these rights being abused to out a whistleblower or frustrate or impede effective follow-up on a report. Section 19 specifies how records of protected disclosures shall be kept. Section 20 imposes a similar restriction on the Freedom of Information Act to section 18 and, again, is intended to protect reporting persons’ identities and prevent attempts to impede or frustrate follow-up.

Chapter 5, comprising sections 21 to 25, inclusive, concerns the enhanced protection measures required by the directive. Key changes introduced in this chapter include: the extension of interim relief to acts of penalisation other than dismissal; reversal of the burden of proof in civil cases concerning penalisation, so employers will have to prove the alleged act of penalisation was not taken because the worker made a protected disclosure; and the provision of a set of offences for contraventions of the Act.

Chapter 6, comprising sections 26 to 33, inclusive, provides for a number of incidental and supplementary measures, including: removal of the restriction on public disclosure of taxpayer information for certain types of reports; provision for the Minister to issue statutory guidance to assist public bodies, prescribed persons and the commissioner in best practice in the handling of reports; the provision of freely available information on how to make a disclosure and the protections afforded by the Act; enhanced provisions as regards the provision of statistical information to the Minister on the numbers of protected disclosures made and for the publication of said information; and powers for the Workplace Relations Commission inspectorate to monitor and enforce compliance with the requirement on employers to have internal reporting channels.

The Bill inserts two new schedules into the principal Act. Schedule 5 is a set of standard provisions as regards the keeping of accounts and the staffing of the office of the protected disclosures commissioner, while Schedule 6 reproduces the annex to the directive, listing all of the EU laws that lie within its material scope.

In conclusion, I reiterate my thanks to the Members of both Houses who worked on the pre-legislative scrutiny report on this Bill, which has greatly influenced its development. I would also like to thank the various stakeholders who have contributed to the development of this Bill, including those who took the time to make submissions to the public consultation when the general scheme of the Bill was being developed and those who attended the pre-legislative scrutiny hearings at the committee. Their input has also provided great help in the preparation of this Bill. I would also like to take the opportunity to thank my officials in the Department of Public Expenditure and Reform who have been working on this Bill for a long time, and the officials in the Office of the Attorney General for their assistance in what is complex and at times technical legislation. We can all agree it is a fundamentally important Bill and it is important that we get this right.

I want to signal to Members that I am, of course, open to amendments on Committee Stage and Report Stage through the passage of this Bill in both Houses. Where I believe the amendments improve the Bill and can be put into operation and improve the protections for whistleblowers, I am open to amendments and I want to be very upfront and clear about that.

I thank all the Members of this House for their attention and I very much look forward to hearing their contributions during the remainder of Second Stage. I commend the Bill to the House.

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