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

I wish to update the House on a matter in respect of the Bill. On Committee Stage I undertook to examine the issue of the retrospective application of the Bill. I am signalling that I will be raising amendments in the Seanad. We will be coming back to the Dáil following, I hope, the acceptance of amendments in Seanad Éireann. I am just flagging that issue to the House. I have a note which I can put on the record. In essence it is about that issue. The most significant outstanding issue that remains is the question of retrospective application of the protections in the legislation to persons who report wrongdoing prior to the enactment of the Bill. I wish to provide an update to the House on the progress we are making in this area.

I am committed to applying the enhanced protections provided for in the Bill to such persons to the greatest extent possible within the boundaries of the Constitution. My officials and I are working with the Attorney General in this regard. I am advised that it will be possible to provide protections for persons who have reported prior to enactment but have suffered retaliation after enactment. I have instructed the Attorney General to draft amendments to the Bill to this effect. This will implement the recommendations made by the Joint Committee on Finance, Public Expenditure and Reform, and Taoiseach, in its prelegislative scrutiny report on the draft general scheme of the Bill. I am also advised that it is possible to go further and provide protection to persons who are already within the personal scope of the 2014 Act and have reported and suffered retaliation prior to enactment but have yet to initiate proceedings against their employer at the Workplace Relations Commission or the courts. Again I have asked the Attorney General to draft amendments to the Bill in this regard. Any retrospective application that goes beyond this, that is, where proceedings have been initiated or completed, would run into constitutional difficulties. In particular, Article 15.1.1° of the Constitution provides that the Oireachtas shall not declare acts to be infringements on the law which were not so at the date of their commission. We must accept and respect the limits that are placed on us by Bunreacht na hÉireann. Where a person is in this situation, there is nothing to stop them from making a new protected disclosure in respect of any new or outstanding matters and the full protections of this legislation will apply. Similarly where a person in this situation is subjected to a new act of penalisation after the Bill is enacted, the retrospective provisions when introduced will give them protection. I had hoped to bring these amendments to the House today for consideration. I regret to say that this was not possible.

While drafting is at a very advanced stage, several substantial issues concerning the application of the protections from civil and criminal proceedings, the right to confidentiality and data protection have arisen. The Attorney General has informed me he needs more time to get to the bottom of them. To ensure the provisions are properly and correctly drafted, I have agreed with the Attorney General to defer their introduction until the Bill reaches Committee Stage in the Seanad. I apologise to the House for the disappointment I know this will cause, but I am sure Members will agree the most important thing is that we get the drafting right. The House will, of course, have a chance to consider these proposals, which concern the retrospective application of the Bill, when it returns to the Seanad.

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