Jim O'Callaghan (Dublin Bay South, Fianna Fail) | Oireachtas source

I am glad to have the opportunity to speak on this important legislation. I commend the Minister, Deputy Michael McGrath, and the Minister of State, Deputy Ossian Smith, on bringing it forward.

Back in 2014, the Houses of the Oireachtas decided to enact legislation that would provide a statutory protection to whistleblowers, and they were whistleblowers who came from within the public sector. It was very important legislation that we introduced and enacted in this House. It is also important to recall that it was enacted not in response to any European Council directive, but it was decided to introduce it because it was thought necessary from the point of view of issues that we faced in this country. Obviously, the legislation which is before the House this evening and yesterday is slightly different because we are transposing an Council directive, but we are also getting an opportunity to make some important changes to the protected disclosures law which I believe will improve it.

The State should not be afraid to enable individuals within the State or employees in the private sector to come forward to disclose wrongdoing or a failure to comply with legal obligations. It is the case that when we look at the legislation, wrongdoing is described in very broad terms. It is not just the commission of a criminal offence, as many people think, but it also can be the failure or inadequacy of a statutory body to fulfil a statutory and legal obligation. The State should be prepared to acknowledge that this is an important function that is being performed by individuals within the public sector. The legislation before us will also extend to private entities, provided there are more than 50 employees.

It is to the benefit of the State if it is established, and there are mechanisms in place to establish, that wrongdoing exists either within the public sector or private sector. Similarly, it has to be to the benefit of the State and the private sector if allegations of wrongdoing are made, if they are adequately investigated and if it is found that such allegations are not substantiated. We all know that it cannot be the case that every whistleblower is correct in the allegations they make. We talk in this House about whistleblowers who we commend and who have done a very honourable job in disclosing wrongdoing, and they have been mentioned in the House this evening. I obviously support and recognise that. However, it is also the case that there are allegations that can be made which should be investigated but that investigation may not establish the allegations that have been made by the whistleblower.

We also need to look at the fact the legislation that has been in place since 2014 is extremely complicated and difficult to navigate. I know that because, as a Deputy, I was the recipient of a protected disclosure, along with a retired colleague in this House. It was a perfectly valid protected disclosure which was made under the provisions of section 17 of the 2014 Act. I can tell the House it was a very demanding process but we were able to ensure that the whistleblowers and the serious allegation they were reporting to us were brought to the attention of the State and necessary changes were made. They were the only two whistleblowers who came directly to me and I have to say, on the record of the Dáil, that they were extremely honourable, commendable people.

The public and the public service were improved by the disclosure they made. However, under the 2014 legislation there is a myriad of avenues down which a protected disclosure must go for it to be appraised and assessed. That is why I welcome the fact that under this legislation we will set up the office of the protected disclosures commissioner. That would provide a much more simple method for protected disclosures to be made and investigated in a thorough and coherent fashion.

There are also a number of important provisions within the Bill that are to the great assistance of whistleblowers. For instance, the Minister has introduced a provision in section 22 whereby the burden of proof in tort claims brought by a whistleblower who claims he or she has suffered damage as a result of making the protected disclosure is to be reversed. The reversal of a burden of proof in litigation is a significant matter. It does not frequently happen but the basis on which it can happen is if a statute provides for it. I commend the Minister on introducing this provision in the Bill. It will give significant protection to whistleblowers if they are subjected to detrimental contact as a result of having made a protected disclosure. It will mean that when they bring a case against their employer or the person who has subjected them to detriment, they will be able to say to the court that since they suffered detriment the court must assume that is because of the protected disclosure that has been made. After that it will be for the employer to put forward evidence to prove that was not the case.

The Bill is worthwhile and it is important that the office of the protected disclosures commissioner be well-resourced. It is also important that individuals in the public sector and in the private sector, if they qualify, are aware of the role that office can play. It is extremely important that the State is not embarrassed or hesitant about facing up to the fact that there will be wrongdoing within the State. How we respond to that is important. The fact that we are improving legislation to ensure that wrongdoing can be investigated thoroughly shows that the State is not embarrassed or trying to hide away from the reality of the fact that there will be circumstances where wrongdoing takes place. It is also beneficial to have a coherent one-stop shop for the investigation of that wrongdoing so it can be done in a much more expeditious way. It is clearly in the public interest and for the public benefit for allegations of wrongdoing that turn out to be true to be established. Similarly, it is clearly in the public interest and for the public benefit if it can be established that allegations of wrongdoing turn out to be false.

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