Mairead Farrell (Galway West, Sinn Fein) | Oireachtas source

We have been down quite a long road on this. It has been a very positive example of how the Government can engage with the Opposition and the relevant committee. The Minister has taken on board many of the suggestions put forward by me, Teachta Buckley and others. That has been really positive. I am aware this is our last opportunity to speak on this. I thank the whistleblowers who have engaged with us over the course of dealing with this Bill. They spoke out for the common good. We have heard from the witnesses about the huge strain placed on them privately and professionally as a result.

Throughout our discussions, we have grappled with the issue of retrospectivity, on which the Minister has just touched. Throughout his time dealing with the issue of retrospectivity, he has mentioned that he was seeking advice on it from the Attorney General. I was wondering whether it is possible to see this advice. Can it be shared with us? As the Minister knows, many of the whistleblowers we have heard from feel completely and utterly let down by the way they have been treated. I included my amendments because I do not believe it is right to exclude a section of whistleblowers. The section I am referring to includes those whom the Minister mentioned, namely those currently engaged in live proceedings. I fear the message they will receive from this Bill will be that they have been left behind again. They have been failed so many times and we must not let that happen again.

The reality is that, throughout the committee hearings, we heard from whistleblowers about how they have been penalised. We should not exclude those engaged in live proceedings from this greater protection whereby any penalisation is presumed to have occurred as a result of the whistleblowing. The issue of the burden of proof is undoubtedly a fundamental aspect of the enhancement of provisions in this Bill and there should be an extension to the cohort in question.

I would like to ask the Minister a number of questions on this. I understood what he was saying but have some questions I hope he can answer. We have spoken about the issue of retrospectivity at length. If there can be retrospective application for some, why can there not be for others? I understand this issue falls under Article 15.5.1° of the Constitution, as the Minister mentioned. It states the Oireachtas cannot declare that certain actions contravened laws that were not in place at the time of those actions.

When the Minister introduced the amendments in the Seanad he said that constitutionally they could not include people who are before the Workplace Relations Commission or the courts. Will he explain why this is the case? I do not understand how it would be the case with Article 15.5.1°.

I will give an example of where it was possible to make a retrospective ruling for a live proceeding. It was through the European Court of Justice in the Max-Planck-Gesellschaft case, C-684/16. The case was brought by the German court. After the termination of employment a company refused to pay the employee for annual leave not taken. The German courts were unsure whether the EU law precludes national legislation providing for the loss of paid annual leave not taken. The European Court of Justice ruled the employer must prove it gave the employee the opportunity to take the leave in the time allocated and particularly to have provided adequate information on doing so. The point is that the burden of proof lay with the employer and in this case it was granted in a live proceeding. Again, I question why this cannot be done in this case. Would the denial of this right lead to cases similar to the Max-Planck-Gesellschaft case? I was also struck when reading about the case that the German courts were unsure as to whether EU law precludes national legislation providing for this. Would this mean EU law has primacy over our domestic law and, therefore, the directive would have primacy here?

Another issue I know the Minister is acutely aware of is that of reporting directly to the Minister. I want to mention this as the Minister spoke on it. It is regression not to have direct reporting to the Minister.

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