Catherine Connolly (Galway West, Independent) | Oireachtas source

I welcome the work done by the Department, the Minister and the committee on this legislation. I can see from what I have read the amount of work that has gone into it and the consideration. I welcome also that the Minister is open to all amendments, or all reasonable amendments. Clearly, this Bill, as has been said so many times, provides for the transposition of the EU directive into Irish law. That of course begs the question of why we had to wait for the directive. There was a review in 2018 that was very helpful but that did not recommend any changes in the legislation.

That is worrying for me. I come back to the existing practices, procedures and policies on the ground that are not working generally. That is why we need we need whistleblowing legislation, which is unfortunate. The Minister is on record as saying, and I agree with him, that in an ideal society we would not need this at all, but I am afraid that is in heaven and not on earth. The review that was carried out in 2018 did not recommend any changes. Perhaps those who carried out the review were being cautious because they knew the EU directive was coming down the line. I will accept the more benign reason for that.

I cannot remember if a review is built into this Bill. It seems to me a review after two years is essential if we are seriously interested in strengthening whistleblowing legislation. It has been said so often at this stage that the personal scope of the Bill has been extended to volunteers, unpaid trainees, board members, shareholders and job applicants. I welcome that. It places an obligation on all private organisations with 50 or more employees, which I also welcome, although there is a derogation. On a practical level, I can see why there is an extension of time and I accept that. I am not so sure why private companies with under 50 employees are not included because I understand this Bill includes such companies that are in the public sector. I am not sure why that distinction is there.

I very much welcome the new office of the protected disclosures commissioner that will be established. New offences are created for employers who fail in their obligations to establish the proper internal reporting channels; I welcome all of that. It is positive that unauthorised disclosures of the identity of a reporting person will be a criminal offence. The extension of the interim relief measures under the Act to include acts of penalisation other than dismissal is also welcome. This is the one time I welcome the reversal of the burden of proof although recently, in a different context to do with refugees, I condemned the reversal of proof. I welcome it in this situation, where it falls to the employer to provide that the alleged act of penalisation did not occur because someone made a protected disclosure. I also welcome the emphasis on data collection.

I welcome the Bill, but there is the dream and the reality. The reality on the ground is so far removed from the dream. To put it in perspective, where did the 2014 Act come from? I paid tribute to Deputy Howlin in the past when he pushed that, but where did it come from? It came from the Morris tribunal. The last time I saw the cost of that tribunal it was €70 million and rising. As Deputy Pringle said, establishment Ireland wanted to believe the matter just related to Donegal. That was the way we dealt with it. As the cost of it rose by millions to more than €70 million, it was said it could only happen in Donegal - I apologise to Deputy Pringle - but nowhere else. It took more than €70 million to realise that is not what happened. The impetus for this Bill came from that.

Deputy Cullinane said he wished the impetus for this Bill did not come from an EU directive, which it did not. It came from pain, suffering and the most appalling corruption in the Garda force in that area and, we subsequently learned, in other areas. I again pay tribute to good members of the Garda on the ground, as I do to good politicians, but I do not think we can clap ourselves on the back for it, notwithstanding my praise for individual Deputies who pushed it and who were very good. That was the Morris tribunal. We have all the other background, including the Mahon tribunal, which started as the Flood tribunal. I cannot remember the cost of that; it is just off the deep end. We had the Moriarty tribunal on payments to politicians. They are just a few of the tribunals.

If we had an environment in Ireland where people could come forward and be cherished, we would have saved a fortune, not to mention the pain and suffering. I will refer to the Bill digest supplied by the Oireachtas Library and Research Service - I thank it for its great work - which states:

According to the Organisation for Economic Co-operation and Development ... whistleblowing is among the most effective means to [both] expose and remedy corruption, fraud, and other types of wrongdoing in the public and private sectors. Whistleblowing has been a particularly valuable tool in the areas of environmental protection, [I hope Deputies will remember this when we are talking about planning laws and demonising environmental groups and courageous people on the ground] law enforcement, finance, education and healthcare.

It goes on to tell us:

There are also significant economic benefits to having a fully functional and comprehensive whistleblowing legislative framework. For example, the European Commission's report "Estimating the economic benefits of whistleblower protection in public procurement" indicated that, in the EU [alone]...losses due to a lack of whistleblower protection in public procurement were estimated at between €5.8 and €9.6 billion [I had to read it twice].

Transparency International tells us in its A Best Practice Guide for Whistleblowing Legislation:

...[there are] three main reasons given by people for not reporting wrongdoing... [These are] fear of the consequences [that is] (legal, financial, [and] reputational), the belief that nothing will be done, that it will not make any difference [and] uncertainty about...[who], [and] where and to whom...[they should] report

Legislation must reflect that. The Government has gone a long way to doing that, but the enforcement of legislation is the problem. I have much trust in a constant review of the legislation so that we can learn. If the Minister can reassure me that there will be a meaningful review of the legislation to see whether it is achieving its aims, I will be delighted. Deputy Boyd Barrett talked about the facts earlier, which are missing here in respect of how many whistleblowers come forward, how they are treated, what their experience is, what we can learn and what money we can save as a result. This is all very factual, practical stuff. Where is the place we are doing all of that? These are very important questions.

I am thinking of something I raised in the House recently, which is insignificant in the context of the major issues we have to deal with, such as housing and health. The only thing the HSE in my area of Galway was interested in doing was finding out who was telling her. If it is doing that for what I am describing as a relatively minor matter, what is it doing for more serious incidents? What is it up to? My professional and personal experience has not filled me with confidence regarding institutions. The thing that has kept me going has been the presence of good, honest and courageous people on the ground. Many honest and courageous people give up. On occasions, I almost give up and I am privileged in the sense of being paid to speak. If my personal and professional experience, and I have had the privilege of being in different professions, has not filled me with confidence, then one has to ask serious questions about what is going on with the practices, policies and procedures in place in the HSE, the banks and all the other institutions that psychologically choke a person rather than let them come forward.

We think of Vicky Phelan. I use her name most reluctantly and only to bring up the confidential agreement she courageously refused to sign. If we are to show leadership as a Government, where does it start? Surely it should start with the stopping of confidential agreements relating to matters such as that, which can only stop learning and reinforce a very bad system. Only because Vicky Phelan had the courage to come forward and say "No" did we learn about that matter. That is repeated everywhere. If we consider Sergeant McCabe, luckily he found his phone. Otherwise, that man was in serious trouble, despite all the things we might say retrospectively.

We can repeat that over and over. My experience on the Committee of Public Accounts in respect of university education was shocking. There were whistleblowers from the University of Limerick and whistleblowers in relation to the Grace case mentioned by Deputy McGuinness, where it seems, from reading the newspaper, that the whistleblower concerned has had a dreadful time and has ended up in the courts. I do not know the details. We certainly did not champion those whistleblowers, notwithstanding the wonderful legislation. We have the dream and the reality. What is happening here? We need to show leadership. Do we remember the Nyberg report on banking, which referenced the herd mentality, the consensus approach and the value put on loyalty as opposed to courage, honesty and integrity?

When are we going to reward those values to back up the legislation? That is what we need to do here; otherwise, we are just playing games as usual. I do not doubt the Minister's bona fides. He has come forward in a very straight way, working with us in a collaborative manner. I welcome that.

On the outstanding recommendations from the committee, I note the Minister proposes to look at them at committee level, in particular the issue of retrospection. Is there some way we can deal with people who have existing disclosures in a manner that meets the spirit of the new legislation, regardless of whether they come under it? There is also the issue of legal advice and extra advice. Money is given to Transparency International Ireland. What analysis has been done in regard to how effective that is?

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