One is on the question of the retrospective application of the Bill. The other is on the insertion of subsection 2(b) into section 13 of the Act. That is not an amendment before us but it is important to the overall debate, as I have acknowledged.

At the discretion of the Leas-Cheann Comhairle, let me deal with the issue of the retrospective application of this Bill. The political direction I gave to those involved in drafting the Bill and the Office of the Attorney General was that, to the greatest extent possible within legal parameters, I wanted the additional protections provided for in the Bill to be retrospective. That is the clear political direction I gave as Minister on the issue. I assured this House and the Seanad that I would achieve that, and that is what I have done.

Let me put on the record some important points on this matter. I am satisfied, having listened to the legal advice I have received, that what I requested has been achieved. Within the constitutional parameters in which we must all operate, we have secured the retrospective application of this Bill to the greatest extent possible. As I have said in previous statements to both Houses, the scope of the Oireachtas to make laws retrospectively is limited by the Constitution. In this regard, I have quoted Article 15.5.1°, which I do not need to do again. This limits how far laws can be retrospectively applied. The reasons for this provision in the Constitution are obvious. Retroactive laws pose a challenge to the fundamental principles of equality, certainty and predictability underlying the rule of law. Individuals should be able to rely on laws in the expectation that the State will not afterwards interfere with individuals’ rights.

Paragraphs 2 and 3 of Schedule 7 apply to workers already within the scope of the 2014 Act who reported before enactment but suffered retaliation after enactment. Given that these workers are already protected by the 2014 Act, the additional benefits these provisions confer are the reversal of the burden of proof during proceedings of the Workplace Relations Commission and the courts and access to interim relief at the Circuit Court against penalisation.

Paragraphs 4 and 5 apply to persons added to the scope of the legislation by this Bill. These include shareholders, volunteers and board members who reported before enactment but who, again, suffered retaliation after enactment. Also included are job applicants. Since these workers had no entitlement to protection prior to this amendment being made, the cohort will receive the greatest benefit from these provisions, namely protection from penalisation at the Workplace Relations Commission, including the reversal of the burden of proof, the right to sue for damages in court, again including the reversal of the burden of proof during proceedings, and access to interim relief at the Circuit Court for dismissal and other forms of penalisation.

Paragraphs 6 and 7 apply to workers already within the scope of the 2014 Act who reported and suffered retaliation before enactment, provided the workers have not initiated proceedings in the Workplace Relations Commission or the courts at the time of enactment. Given that these workers are already protected by the 2014 Act, the additional benefit this measure confers on them is that they will be entitled to the reversal of the burden of proof during proceedings. I acknowledge how important the reversal of that burden is, in addition to the extension of that protection to so many workers and other persons who now qualify under this Bill.

Amendments submitted by Deputy Mairéad Farrell, to which I am sure she will speak in a moment, seek to extend the provisions of paragraphs 6 and 7 to persons who have already initiated proceedings under the 2014 Act. That is the kernel of the issue on which much of the correspondence and parliamentary questions in recent days have focused. The primary effect of the amendments would be to apply the reversal of the burden of proof to cases that are already before the Workplace Relations Commission or courts. I cannot accept these amendments. To provide for the burden of proof to shift during the currency of pending legal proceedings would involve substantial interference with the administration of justice and would be liable to be unfair to litigants and generate significant uncertainty in the conduct of litigation. This would be particularly true in relation to part-heard cases or cases where a judicial decision has been already given.

Paragraphs 6(b) and 7(b) of Schedule 7 are necessary to avoid interference with the conduct of pending litigation, with potential unfairness and uncertainty for litigants, which a retrospective application of the shifting of the burden of proof to pending proceedings would involve. It is standard for such significant and substantive interferences with the conduct of proceedings to be applied, as here, only to proceedings initiated after the commencement of the provision concerned. It is not usual to apply new rules to already-existing proceedings. To accept these amendments would set a disturbing precedent. The Oireachtas would, in effect, be interfering in cases that are currently before the courts. To do such a thing would, I am advised, clearly be repugnant to the Constitution, the underlying right to fair procedures in litigation and the rule of law.

I gave the commitment to go as far as I possibly could in terms of the retrospective application of all the additional protections in this Bill. That was my key objective in introducing this Bill; however, as I have said, I am advised by the Attorney General that we can go no further in providing retrospective protection than is already set out in the amendments.

Let me touch briefly on the specific issue that Deputy Howlin has raised, because it has been raised several times in parliamentary questions in the past few days. There is a misinterpretation of what the relevant section provides. Section 13 of the Protected Disclosures Act provides that if a person causes detriment to another person because the other person or third person made a protected disclosure, the person to whom the detriment is caused has a right of action in tort against the person by whom the detriment is caused. Section 22 of this Bill provides for the insertion of a new subsection (2B) into section 13 of the 2014 Act, to which Deputy Howlin referred. It provides:

In other words, the effect of subsection (2) is to reverse the burden of proof in any tort proceedings taken under section 13 so that the court must assume that the alleged detriment occurred because of a protected disclosure unless the defendant can prove otherwise. In other words, the reversal of the burden of proof is in favour of the whistleblower as a result of the insertion of the provision. I will leave it at that because I realise colleagues want to contribute.

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