Róisín Shortall (Dublin North West, Social Democrats) | Oireachtas source

I welcome the opportunity to speak on this important legislation and outline some concerns, which I hope can be addressed as the Bill passes through the legislative stages. It is often said that the Protected Disclosures Act 2014 is strong by international standards but many experts and advocacy organisations have contended that it is very difficult to make such an assessment as there has been a relatively small amount of case law since 2014.

On the ground, however, it is quite clear that those who have made a protected disclosure often paid a very high price for doing so in terms of career prospects, finances and mental health. This was evident in the testimonies of whistleblowers who appeared before the Joint Committee on Finance, Public Expenditure and Reform, and Taoiseach. Those same issues have also been shown to be the case in terms of research that has been carried out in this area.

The 2016 integrity at work survey revealed that 21% of respondents who reported wrongdoing said they had suffered for sharing their concerns. It also found that the negative impact of making a disclosure on careers and personal life was a major barrier to reporting wrongdoing in the first place. In that same survey, 31% of people said they would fear losing their jobs, while 13% feared isolation from their colleagues. It is clear, therefore, that we need to update continuously and strengthen protections for whistleblowers. It should not take an EU directive to force our hand.

There have certainly been a few cases recently where there have been big concerns about the treatment of whistleblowers. I want to mention one particular case that arose recently with regard to the serious shortcomings in the child and adult mental health services, CAMHS, in County Kerry. While a report was carried out on that, we did not hear anything about what will happen about the whistleblower who really put his neck on the line and ended up leaving the HSE. He was a very well-qualified and very good doctor who spoke out when that was the right thing to do. He stood up and spoke out and yet he was sidelined and eventually felt he had to leave the organisation. We have to learn from this.

Of course, the big case of a whistleblower being badly treated by Government and to a large extent by society was Sergeant McCabe. He paid a huge price for that and was eventually found to be entirely vindicated. There is still an issue in the culture within some of our public departments, organisations and agencies, however, that does not encourage people speaking out when they witness wrongdoing. We have to do that. That culture has to change. It has to be seen as a positive thing for employees to call out wrongdoing. That is how we improve the performance of our organisations and also how we ensure a healthier atmosphere. The opposite of that is something that Mr. Eddie Molloy, somebody who very often gives a lot of very good advice, calls the culture of going along to get along. Too often, senior officials go along with things they should not be going along with. They do not say anything about it just to get along. That culture has to change.

In reviewing the 2014 Act, it is apparent that the definition of "relevant wrongdoing" was quite limited. I welcome the amendment in section 6 that would correct this to include all matters which fall within the scope of the directive such as "public health" and "consumer protection". It is, however, disappointing that interpersonal grievances between workers will not be considered a relevant wrongdoing. Upon initial reading, this may seem to make sense but it is not a black and white issue. I fear this provision could have unintended consequences for workers. As the Irish Human Rights and Equality Commission, IHREC, pointed out in its observations and recommendations on the general scheme of the Bill, grievances and protected disclosures can often be intertwined or can overlap. Guidance is already provided under the current framework as to how to make a distinction between grievances and protected disclosures and how to deal with them. I cannot, therefore, see why this needs to be legislated for, particularly in the absence of an explicit definition of "interpersonal grievances". Disclosures pertaining to bullying, unfair discriminatory treatment or dangerous working conditions, for example, could be characterised by employers as such and therefore not be appropriately acted upon. Also, employers could use previous or long-standing interpersonal grievances between employees to dismiss relevant wrongdoings. Why, therefore, is there a need for this decision in our legislation? While it is permitted, the directive does not require it.

All workers should be facilitated to make protected closures regardless of company size, whether it is public or private, terms of contract, pay etc. The term "worker" is quite restrictive in the current legislation, however. It is, therefore, welcome that the definition of a worker has been extended to encompass such reporting persons as volunteers or applicants to an organisation. We should always be striving to extend access to justice to the greatest extent possible. Expanding the definition of a worker in this context will have a positive impact. This will be especially felt by minorities and people in precarious work situations who in many cases have not been adequately protected under the current regime.

I will make a further point in this regard. It is crucial that this change to the definition of "worker" is communicated effectively. My fear is that many people such as volunteers will not make protected disclosures because they may not think the legislation applies to them. In such instances, effective and robust formal channels and procedures for making a protected disclosure will be of the utmost importance. This is a particularly salient point in the charity and non-profit sector, in my view, where there are a large number of people working in a voluntary capacity and often also serving on boards.

Section 8 of the Bill places an obligation on private sector employers with 50 or more employees to "establish, maintain and operate internal reporting channels ... [alongside] procedures for the making of ... reports and for [timely] follow-up". The distinction between employers based on the size of an organisation in my view is problematic. It will mean that a large swathe of workers will not actually be protected. I appreciate the rationale provided in the regulatory impact assessment of the Bill, that is, that a blanket requirement on private bodies with fewer than 50 employees would impose compliance costs on large parts of the economy and could be unworkable in many situations. However, this assessment does not place enough emphasis on the potential impact of exempting all small employers, however, including businesses dealing with large volumes of funds and personal data. A tech company that has a small number of employees, for example, could be engaged in data misuse or abuse on a very large scale far exceeding its on-the-ground operation. Statistics published by the Central Statistics Office, CSO, in 2019 showed that small enterprises, characterised as those with fewer than ten persons, accounted for 92.2% of enterprises in the economy and 25.6% of workers, while enterprises with ten to 49 persons accounted for 6.2% of enterprises and 20.5% of workers.

This means that close to one in every two private sector employees would not be covered by this provision and the vast majority of private sector employers would have no obligation to adopt reporting procedures. As a result, it is patently clear that the legislation is extremely weak in this regard and needs to be amended. There is a clear imbalance between the interests of employers and employees in respect of smaller private companies. The proposed legislation is too concerned with protecting those employers at the expense of employees reporting wrongdoing. The question must be asked as to what it is we are protecting employers from. Surely having robust internal reporting channels and procedures in place would help to mitigate against legal, financial and reputational risks.

In effect, this decision was taken, I believe, on the basis of cost. While that must obviously be a consideration, particularly after a difficult two years for many businesses, the issue of cost is not insurmountable and should not be used as a barrier to increasing protections for all workers. As Transparency International Ireland highlighted in its submission on the transposition of this EU directive, all employers have legal obligations to protect employees in different areas. Protected disclosures should be no different. For example, it is mandatory, under the Safety, Health and Welfare at Work Act 2005, for employers to have undertaken a health and safety risk assessment and have procedures in place to prevent bullying. The Health and Safety Authority provides standard policies for employers to adopt, thus making the process easier and minimising expense. A similar approach should be used for protected disclosures. The code of practice that was established by statutory instrument in reference to the Protected Disclosures Act 2014 already includes a model protected disclosures policy that could be updated and adopted by employers at minimal expense. This is a workable solution that would create the conditions for all employers, regardless of size, to comply. Not only would it provide protection for all private sector workers, it would allow for more reports to be dealt with quickly through established reporting channels, with a lesser need for external reporting. That would be desirable all around. It would also assist in ensuring the new protected disclosures office does not become overrun with cases from companies that do not have the necessary reporting channels and procedures already in place.

Section 14 provides for the creation of an office of the protected disclosures commissioner within the Office of the Ombudsman. I very much support this provision as it should, if resourced properly, create a more efficient and whistleblower-friendly regime, ensuring consistency in reporting, investigation and communication. Aside from whistleblowers' concerns regarding future employment and ostracisation in the workplace, another barrier to reporting is often the complexity of doing so. The new office will have a key role in directing reports to the right place and providing support in assessing and investigating protected disclosures. It will also act as the default authority and de facto safeguard for workers in the event there is not an appropriate regulator to address their concerns. This will be especially important given the increased range of regulatory matters in respect of which protected disclosures can now be made, such as breaches of European law.

Of course, we must not lose sight of the fact that at the heart of this issue is corruption and wrongdoing. While greater protections for whistleblowers and appropriate channels for reporting are absolutely vital, we need a more comprehensive strategy to prevent wrongdoing and corruption in the first place. As in all policy areas, prevention is better than cure. Laws around corruption are scattered across multiple legislative provisions and there is no overarching or consolidated approach to combatting it. We in the Social Democrats have long advocated for a culture of open government and a root-and-branch reform of the anti-corruption regime in Ireland. Key to this would be the establishment of a new law enforcement body - an independent anti-corruption agency - to tackle white-collar crime and corruption in the corporate world and in political spheres. Unless we start dealing with the root cause of these problems, we will continue to stumble into one crisis after another.

This very technical legislation has provided a much needed opportunity to reflect on our protected disclosure regime. It is a regime that certainly needs to be improved to protect whistleblowers from the chilling effect of reporting wrongdoing. However, the Bill, in its current form, will not radically improve the situation. This is because many arms of the State and private companies will continue to be more concerned with reputational damage than protecting the public interest. We have seen this play out in case after case involving whistleblowers, whether in the health service, policing or finance. I do not believe this legislation will create the sufficient cultural shift that is needed to address this. For that to happen, the Bill would need to be stronger in its protection of whistleblowers and the Government would need to accompany it with a commitment to rooting out corruption in public and private life. There must be consequences for people when they are found to be engaged in wrongdoing or corruption. Too often, we have an investigation and the findings of that investigation may be referred to the Garda but nothing else happens. It runs into the sand. We have seen that across a number of different models of investigations and inquiries in this country. There is nothing more dispiriting for people than being aware that individuals or organisations have clearly been engaging in corruption and wrongdoing and there being no consequences for them.

It is regrettable than this Bill is only before the House now, almost two months after it was supposed to be implemented. This matter should have been higher on the Department's agenda given the urgent need for a stronger regime. Notwithstanding that, I appreciate and welcome the Minister of State's commitment to engage with the relevant committee on possible amendments. A shared commitment to creating a gold standard protected disclosure regime has been expressed across the House. I hope the Minister of State will endeavour to improve the legislation. The public and the political system can only benefit by there being such a regime. There is no doubt that the country would hugely benefit from a situation where corruption and wrongdoing are ruled out and there is clear evidence to the public in general that where people engage in such wrongdoing and corruption, they will ultimately have to pay a substantial price.

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