Gerald Nash (Louth, Labour) | Oireachtas source

I did not have the opportunity to engage in pre-legislative scrutiny of this legislation, which I regret. That said, it is not the case that I have not taken a keen interest in the passage and progress of this legislation, given the history of my own party's involvement in the development of what became the 2014 Act. Deputy Buckley articulated very well a lot of the concerns that have been expressed across this House about how the 2014 legislation has been operated. The reality is that all of us in this House have dealt with, advocated for and represented people who have taken courage in their own hands to identify wrongdoing in organisations in which they work and we all want to have the best possible system in place to protect them when they go about that important business. Such business is really intrinsic to our democracy and the functioning of same and to be fair to the Minister, he acknowledged that in the earlier part of his contribution.

I may not have been in a position to make a contribution to the pre-legislative scrutiny process but I certainly will be making a contribution on behalf of the Labour Party to the Committee and latter Stages of this Bill as it progresses through the House. I very much welcome the Bill and the opportunity to speak on it on behalf of the Labour Party. The Bill will see the transposition of the whistleblowing directive into Irish law, which is a welcome development. It is worth noting, as the Minister said earlier, that Ireland is one of a minority of EU states that already has a set of legal protections in place to protect whistleblowers.

The operation of the Protected Disclosures Act dates back to 2014 and was one of a series of reform initiatives undertaken by my party colleague, Deputy Brendan Howlin, when he was Minister for Public Expenditure and Reform. One of the most significant changes to the Act arising from the transposing of the directive will be the extension of the law as it relates to the requirement to establish clear reporting channels and procedures in private industry and private businesses. The public service was, of course, a good place to start in 2014. If one wants to start, one starts with the State and State-run and State-supported services but wrongdoing is as big a problem, if not a bigger problem, in the private sector as it is anywhere else. Those who uncover a problem in a private sector body should have the same rights and processes available to them as those in the public sector. There ought to be consistency in this regard and I do not think anybody would argue otherwise. No worker anywhere, regardless of where he or she works, should fear penalisation for reporting malpractice and there should be always be consistency in that regard.

The new law, when passed, will make it mandatory for companies with over 50 staff to set up an internal mechanism and clear procedures to handle, progress and report on complaints, which is a good thing.

The issue for me is what happens in organisations where there are fewer than 50 employees. This has been mentioned by other Deputies. The response of the Workplace Relations Commission, WRC, to the public consultation is worth reflecting on. It reaffirmed that the protections available under the Protective Disclosures Act do not distinguish between large and small employers. The directive will require all employers to accept, engage, provide feedback, follow up, etc. on disclosures. The need to have an internal reporting channel is, as the WRC stated, consistent with that obligation.

I am concerned about the absence of a requirement to have internal reporting channels in smaller firms. I assume the argument is that this would place a significant administrative burden on smaller business. I understand that, but a clear reporting mechanism would help everyone in all circumstances regardless of the size of the firm. Smaller firms may operate more informally. That runs the risk of the confidentiality of a disclosure being threatened regardless of where it might be made. It might be made to an external body but given how things operate, and we all understand that, there is a risk that things could get out, which would make confidentiality a problem, and then penalisation and victimisation become problems. The Minister should take another look at that before Committee Stage.

The provision for tighter and clearer timeframes on the progressing and investigation of protected disclosures is very welcome. We are often contacted by whistleblowers, I am sure that the Minister is too, about active cases because they are concerned that those cases are going around in circles or are going nowhere at all. They fear that the system is circling the wagons and protecting itself, as systems do, in the hope that by stringing out a disclosure that the complainant will become exhausted and frustrated and simply fold up their tents and go away. People take a huge risk when they draw attention to wrongdoing. The Minister is aware of this. We all know that it can take an enormous personal toll. I am somewhat encouraged by some of the research that suggests that only a minority of workers who blow the whistle experience detrimental impacts. However, while it might be a minority of workers it is a significant minority. We know that from work undertaken by Transparency International and others. Even one worker who experiences a detrimental impact is one too many. While we can never achieve perfection we should always strive to have the best possible system in place. The system should always seek to properly support, protect and embrace complainants and those bringing forward protective disclosures.

All of us have worked with and represented far too many courageous people who put themselves at great risk to tell the truth and expose wrongdoing. People have been victimised, targeted and traumatised as they have stood up to an often unforgiving system. That is one important reason why clear timeframes on reporting, follow-up feedback and communication of the outcome of an investigation is so important. It is crucial to public confidence and the utility of the system and the idea that if a person makes a complaint that it will be handled properly, transparently and in a timely fashion. The reforms and new provisions will provide some comfort to those who may wish to make protected disclosures in future.

I welcome the clear requirement on competent authorities to publish clear and straightforward information on their websites on the protections afforded to disclosures, details on how reports are handled and progressed and the remedies available to whistleblowers against retaliation and the fact that confidential advice is also available to people who are often in very difficult circumstances. Those who do take the courage into their hands and disclose information, motivated by a sense of what is right, should be embraced and properly supported by the system.

Some of the more subtle ways by which employees can be penalised by their employers for blowing the whistle are now to be included in new definitions of penalisation that are in the directive and, as the Minister noted, significantly the burden of proof rests on the employers. The legislation will mean that when a person brings a case to the WRC or the courts about penalisation for making a protected disclosure, the burden of proof will clearly fall on the employer. In simple terms, the authorities will work on the basis of the assumption that the alleged act of penalisation, say blacklisting or ostracism, took place because the worker involved made a protected disclosure unless and until the employer can prove to the contrary. This will provide some important reassurance to those who have information they may wish to report and disclose. I also welcome that, per the directive, the coverage of the Act has been extended to volunteers, board members of organisations, to job applicants and shareholders who will have an important role, as they have in company law for example. It is important that they come under the scope of this legislation.

Establishing a protected disclosures office under the remit of the Office of the Ombudsman is a very positive development. I always struggle to understand how Ministers and officials can properly investigate and interrogate complaints and disclosures that might be made through their Departments. It is important that there be an independent voice and channel that can investigate and expedite the consideration of complaints. Too often, more by accident rather than design, conflicts of interest may have arisen in Departments. A protected disclosure may be made to a Minister. We do not know who is investigating it in the Department and confidentiality can become a problem. People can feel that they are victimised and targeted and retraumatised, having first been traumatised first by what they saw or experienced in a Department or agency. It is important that there be independent means by which a complaint can be handled and investigated. That is crucial for the integrity of the process and for public confidence.

I look forward to working with the Minister on Committee Stage. I know he is sincere about agreeing to work with Deputies who may have legitimate concerns and ideals that may be better interrogated on Committee Stage to make the legislation more robust. The legislation is a significant piece of work. I am grateful to the officials because I know the work that goes into the transposition of a directive of this nature. It is vast. We want to get it right. Ireland has a good record, objectively speaking. We were one of the first European Union member states to agree to legislate to protect the interests of whistleblowers through the Protective Disclosures Act 2014. Like all legislation, it needs to evolve. It was of its time as the Minister said earlier. We have learned a lot through experience of how the Act operates by our constituents and others and by the Department and its officials in its operation. It is useful that the experience is in here. It can be improved significantly if the Minister considers some of my points.

We will seek to amend the Bill on Committee Stage. We look forward to working with the Minister because, as I said, this Bill is intrinsic to the operation of our democracy and confidence in it. We know the impact brave whistleblowers have made as agents of change in this country. They have identified wrong-doing and systemic problems that need to be rooted out and where change is needed. People like Sergeant Maurice McCabe have done the State some service. This House, previous Governments and this Government recognise that. We owe it to him and to others who have taken brave stances against wrongdoing to get this legislation right and have a world-class best practice system operating in our country to protect the interests of those who stand up to be counted.

See this speech in context