Dáil debates

Wednesday, 8 March 2006

Whistleblowers Protection Bill 1999: Motion (Resumed).


The following motion was moved by Deputy Rabbitte on Tuesday, 7 March 2006:

That Dáil Éireann,

—recalling calls made by the Irish Nurses Organisation, the Irish Bank Officials Association and the Irish Airline Pilots Association, among others, for comprehensive statutory protection for employees and others who blow the whistle on significant illegal and unacceptable practices that can otherwise become established and remain unidentified over long periods, even by those charged with conducting inspections;

—bearing in mind the recommendation of the Standards in Public Office Commission that a whistleblowers' charter be introduced for local government employees; and

—having regard to the findings and recommendations of the Lourdes Hospital Inquiry;

noting that:

—the Whistleblowers Protection Bill 1999 was introduced on 24 March 1999, had its Second Stage on 15 and 16 June of that year and was referred to the Select Committee on Enterprise and Small Business;

—on 30 March 2000, the then Minister for Finance told the Dáil, in a statement on the CPA report on the DIRT inquiry, that: "The sub-committee further recommended that a scheme and procedure for bank officials to report suspected wrongdoing be introduced. I understand that the Tánaiste and Minister for Enterprise, Trade and Employment will be bringing forward proposals in this area in the near future. These are expected to take the form of amendments to the Whistleblowers Protection Bill 1999 which was initiated in the Dáil last year as a Private Member's Bill";

—on 8 November 2000, the then Minister of State at the Department of Enterprise, Trade and Employment with special responsibility for labour, trade and consumer affairs, confirmed that the Bill was one of a number of upcoming pieces of legislation currently being developed within his area of responsibility;

—on 4 December 2000, the Taoiseach wrote, in an article in The Irish Times setting out his Government's proposals for a package of measures to combat corruption, that "I am announcing a set of proposals which meet the need for modernisation and transparency, while at the same time allowing for the continuing development of a fully inclusive and dynamic body politic. These proposals include the introduction of legislation to protect whistleblowers";

—the annual report of the Department of Enterprise, Trade and Employment for 2001 stated: "The Whistleblowers (Protection) Bill 1999, which protects employees from civil liability or penalisation by their employers for disclosing to other persons information relating to serious wrongdoing, was extensively amended. In 2001 extensive amendments were prepared based on consultations with all Government Departments and have now been forwarded to the Office of the Parliamentary Counsel for drafting";

—although the Bill lapsed on the dissolution of the 28th Dáil on 24 April 2002, it was by order of 18 June 2002, restored to the Order Paper, on the motion of the Government Whip;

—the Bill also featured in a report to the Government of the high level group on regulation, published in November 2002, under the heading "Phase 2 Reforms", being those reforms recommended by the OECD the implementation of which was envisaged for the medium term; and

—the Oireachtas Joint Committee on Finance and the Public Service, in its report of June 2005 on commercial bank charges and interest rates, stated that whistleblowing should receive statutory protection and recommended unanimously that the Whistleblowers Protection Bill 1999 should be progressed;

conscious of the subsequent inexcusable delay in the consideration of this Bill, resolves that, notwithstanding anything in Standing Orders:

—the Order of the Dáil of 18 June 2002, to the extent that it orders that the Whistleblowers Protection Bill 1999 be considered in committee of the whole Dáil, be discharged and the Bill be referred to the Select Committee on Enterprise and Small Business pursuant to Standing Order 112 and paragraph (1)(a)(i) of that committee's Orders of Reference,

—that it be an instruction to the select committee that proceedings on the Bill be commenced as the next immediate item of business of the committee and be progressed with all due expedition and that, immediately after the conclusion of those proceedings, the committee shall, in accordance with Standing Order 85, send a message to the Dáil regarding the completion of its consideration of the Bill. Provided that, if those proceedings are not earlier concluded, the select committee shall report back to the Dáil its progress on those proceedings on 1 June 2006.

Debate resumed on amendment No. 1:

To delete all words after "Dáil Éireann" and substitute the following:

—notes this reaffirmation of the Government's commitment to the protection of whistleblowers; being persons who legitimately bring to the attention of the appropriate authority, sensitive information gained in the course of their employment and notes that Government has already demonstrated this commitment by providing appropriate whistleblower provisions in a series of statutes enacted by the House as well as in legislative proposals currently before this House;

—notes the very significant legal and drafting issues which have arisen in the drafting of a single all-encompassing legislative proposal on whistleblowing;

—supports the Government in its decisions to proceed on a case by case basis with appropriate whistleblowing provisions, as either enacted by the Oireachtas or currently before this House, rather than await the possible resolution of wider complex legal issues;

—notes the Government's approach will continue to provide a series of opportunities for the House to contribute to the formulation and enactment of appropriate whistleblower provisions on a sectoral basis; and

—endorses the Government's intention to continue to pursue the sectoral approach which will supersede the all-encompassing approach proposed in the Private Members' Bill of 1999.

—(Minister for Enterprise, Trade and Employment).

6:00 pm

Photo of Peter PowerPeter Power (Limerick East, Fianna Fail)
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I wish to share time with Deputies Fiona O'Malley, Carey and Fleming.

Séamus Pattison (Carlow-Kilkenny, Labour)
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Is that agreed? Agreed.

Photo of Peter PowerPeter Power (Limerick East, Fianna Fail)
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All Members of the House share a common objective in principle as regards the whole issue of whistleblowers. There is legitimate difference of opinion as to how we should achieve the ideal method of their protection, but there is no doubt that we share a common overall objective. For this reason I welcome the tabling of this motion by the Labour Party to provide, at the very least, some clarity for everybody as regards where we are going, not least the employees of State bodies, civil servants and private companies throughout the country. There is a shared commitment among all Members of the House that legal protection should be afforded to persons who legitimately and in good faith convey sensitive, sometimes damning and sometimes criminal information to appropriate authorities that has been obtained during the course of employment. It is worthwhile quoting from the original Bill as initiated by Deputy Rabbitte in 1999:

The purpose of this Bill is to provide protection from civil liability to employees who make certain disclosures ''reasonably and in good faith'' in relation to the conduct of the business and affairs of their employers. The Bill also prohibits penalisation of employees by their employers in such circumstances. It sets out the persons to whom disclosure may be made and the categories of matters in relation to which such disclosure is permissible.

The initial Bill as initiated by Deputy Rabbitte sought to give effect to this laudable intention, with an over-arching one-size-fits-all approach. It is one thing to set out a laudable objective in draft legislation, which meets with the universal agreement of this House, but it is an entirely different matter to provide an effective legislative framework that works in the real world and achieves the objectives intended at the outset. I am trying to think of a suitable analogy outside the whistleblowing draft legislation.

One could possibly introduce legislation with the over-arching objective to eliminate greenhouse gases, and that would meet with general approval — certainly, the Green Party would welcome such legislation — but the question is whether that legislation could achieve the objectives for which it is intended, or could this be done by the introduction of numerous measures, in different various legislation. For example, the budget and the Finance Bill this year began a definite process towards incentivising the increased use of biofuels. The appropriate place for this legislation was in the Finance Bill, not in a greenhouse gases Bill. In the same way, it would be a laudable objective to have a clean environment Bill. However, the practical method of achieving this might involve legislation to deal with plastic bags or a regulation to reduce nitrates or phosphates in ground water. It might involve separate legislation to introduce an environmental protection agency. All this legislation has been enacted in separate laws, but the difference is that they contribute in a very effective manner towards providing for a clean environment.

These are but two examples of how common objectives can be achieved in different ways. The old adage says there is more than one way to skin a cat. The Minister set out extensively last night how the Government and the relevant Departments, including the Department of Enterprise, Trade and Employment, made a bona fide genuine effort to give practical effect to the general scheme of the Bill as initiated by Deputy Rabbitte. The reality is that in endeavouring to bring forward full and comprehensive legislation, it did not work. That is nobody's fault, not even the Government's. Other countries have tried and had a similar experience. Another adage says do not shoot the messenger if you do not like the message.

The question now is how the objective may be achieved speedily and as effectively as possible. I believe there is only one alternative, to adopt what is now known as the sectoral or case by case approach rather than the one-size-fits-all approach. No doubt some Members of the Opposition, particularly in the Labour Party, will not be satisfied that this can be achieved speedily enough or in the manner in which they would like. However, I would much prefer to have an overall legislative framework that works than one item of legislation that does not. I commend the amended motion to the House.

Photo of Fiona O'MalleyFiona O'Malley (Dún Laoghaire, Progressive Democrats)
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I want to focus on one particular element and how the protection measures should apply to the health sector. I agree with the Opposition on two points. One is that the debate is timely, particularly in the light of the disturbing revelations on some of the practices at Our Lady of Lourdes Hospital, which have been addressed in the House. I also agree that protection measures should be put in place.

I disagree with the Opposition, however, on the appropriate method of dealing with the problem. I support the Government in its explicit commitment to the protection of whistleblowers, people who legitimately bring to light worrying and sensitive information gained in the course of their work. Today's statements on the Drogheda hospital inquiry illustrate the importance of that support. However, I take issue with the Labour Party statement last night that, "The Labour Party offers us action in this area". Unfortunately, it is the wrong action. Last night's contribution from the Labour Party's spokesperson on health presented this as a one-Bill solution to the problem, something of a panacea, which it is not. It was also implied that the absence of such a Bill had facilitated the ongoing scandalous behaviour. That is dangerous and simplistic.

Judge Harding Clark's report makes it clear that we need a sea-change in the culture within the health service. If we are to believe the Labour Party, had this Bill been in place, any individual would have felt free to make a complaint against a superior or a consultant and no negative repercussions would have ensued because of its provisions.

From sexual harassment cases, we know that although legislation may be in place, a person may still feel unable or be unwilling to make a complaint, particularly against a person occupying the dominant position in the power relationship. Sexual harassment cases also show us that the culture of the workplace is the most important factor and often must change to bring about progress.

The Tánaiste stated plainly that, rather than depend on the measures proposed by the Labour Party, we must bring about a culture of openness and preparedness. Such a culture would be prepared to acknowledge errors and be able to analyse clinical practice in an environment which does not resort to blame and recrimination. Therefore, blame-free reporting is vital. The Tánaiste is correct in saying that this issue is about more than whistleblowing. It is a systematic, continuous and open approach to error reporting and correction involving everyone in the health care setting. It involves a rigorous process of audit, peer review and external evaluation.

I appreciate the Opposition's intention but the action is insufficient. The Government's amendment sets out how the sectoral approach will supersede the all-encompassing approach of the Whistleblowers Protection Bill. In light of significant legal and drafting issues which accompany single legislative proposals on whistleblowing, the Government correctly decided to proceed case by case with appropriate whistleblowing provisions. Deputies must ensure that it happens where appropriate, be it in the Medical Practitioners (Amendment) Act 2002, legislation relating to the Health Information and Quality Authority or any legislation which comes before this House. If a section on whistleblowing is appropriate for a piece of legislation, it must be included.

Legislators can play a role in ensuring that statutory provision is made for those who are brave and conscientious enough to raise the alarm when they see bad, dangerous, illegal or, as was the case in Our Lady of Lourdes Hospital, evil practices. Whistleblowing is predicated on someone acting wrongly in the first place. The system should, in the first instance, be able to prevent a person from acting wrongly and stop wrongdoing once it is uncovered. We should not rely on whistleblowers because to do so would be an admission of failure and an admission that the system cannot be designed in such a way as to protect those who encounter it.

Dependence on whistleblowers could also heighten fears of vexatious claims against innocent individuals. We must protect against such a development. We have also learned from sexual harassment cases that when charges are levelled against innocent people, their lives do not revert to how they were before the claims were made. A crude or blunt instrument is insufficient to deal with this complex area. Whistleblowers undoubtedly need protection but these measures should be nuanced and tailored. Most of all, the culture of the workplace must allow openness, an acknowledgment of errors and an ability to examine the work environment in a way that does not resort to blame and recrimination.

Photo of Pat CareyPat Carey (Dublin North West, Fianna Fail)
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Like previous speakers, I welcome the opportunity to comment on this Bill. Without wishing to be condescending to Deputy Rabbitte as he is the last person in this House to whom I would wish to be condescending, he has provided us with an opportunity to address a very important issue. I might pay for any condescension shown to Deputy Rabbitte at a future Question Time.

This issue is very important. Despite the good intentions of Deputy Rabbitte and his party in 1999 and in view of the admitted legal complexities of this issue which were discovered by the Parliamentary Counsel and the Attorney General, it is important that we move along on a sectoral basis. I do not say this simply because I sit on the Government side of the House.

I took the trouble to research provisions for whistleblowers in other jurisdictions. If time permits, I will draw people's attention to a recent case in Australia, which has the best whistleblowing legislation I am aware of and yet still experienced problems with reporting. If the current approach to the protection of persons reporting child abuse had not been taken, would people prepared to blow the whistle on those who abuse children still lack protection? I understand that a facility for whistleblowers was inserted into section 50 of the Competition Act. Deputy Hogan and other Deputies will be more familiar with the matter than I am. Here we have an example of what is important.

We must ensure that there are fewer get-out clauses than are preferable in a single Bill. The approach taken by the Government, which involves inserting a clause into each appropriate piece of legislation, is more likely to ensure a speedy implementation of measures to combat faults which emerge from time to time in public life. The ethics in public office legislation is a good example of this approach. It affords protection for those who blow the whistle on wrongdoing and affords an opportunity for serious investigation. The provision of immunity from civil liability to persons who, for example, report abuses covered by the Protections for Persons Reporting Child Abuse Act 1998, is very important. As a result of this Act, people who report allegations of child abuse in good faith know they will be protected. The Ethics in Public Office Act 1995 is another example of such legislation.

If it were not for the provisions in section 27 of the Safety, Health and Welfare at Work Act 2005, which provide for protection against dismissal and penalisation of employees who in good faith take steps to protect themselves or others in a workplace situation, there would be much more abuse of workers. Last year, a number of people in my constituency reported very obvious breaches of health and safety legislation on construction sites. Were it not for the protection afforded to them by the Safety, Health and Welfare at Work Act, it is highly unlikely that they would have been prepared to come forward with the information they provided to me, among others.

As parliamentarians, we must address an issue which arose in a case involving Senator Jim Higgins and Deputy Howlin. The issue concerned the integrity of the communications system in respect of Members of this House. How do we ensure confidentiality and ensure that those who come to us with information are adequately protected? We must examine how we can encourage people to come to us with information.

I was struck by a recent case in Queensland in Australia involving an overseas-trained doctor called Dr. Jayant Patel. A nurse named Toni Hoffman told her MP, Robert Messenger, about the doctor's disastrous surgical exploits, which led to him being dubbed "Dr. Death" by his colleagues. An inquiry was subsequently held and a report was produced, some extracts of which I have before me. Even in a country with the best whistleblowing legislation in the world, the report concluded that Ms Hoffman's disclosure to Mr. Messenger was not protected by the Whistleblower Protection Act 1994. It concluded that the fact that she was forced to reveal her concerns to Mr. Messenger to ensure they were dealt with and the fact that her disclosure was not protected by whistleblowing legislation revealed the failure of the current system to protect whistleblowers. The report drew this conclusion in respect of an area where there is already a significant amount of legislation.

The report by the electoral and administrative review commission, which was set up to inquire into the need for various legal, administrative and parliamentary reforms in Queensland, contains a number of instructive recommendations. The EARC report summarised the countervailing interests that deserve appropriate recognition and protection in the design of a balanced system for encouraging and protecting whistleblowing that is in the public interest in the following way: (a) the interests of the public in the exposure, investigation or correction of illegal conduct, and dangers to public health and safety; (b) the interests of the whistleblower are being protected from retaliation, and in seeing action is taken on the whistleblowing disclosure; (c) the interests of persons against whom allegations are made in good faith which are inaccurate or, worse still, against whom false or misleading allegations are made; and (d) the interests of an organisation affected by a whistleblowing disclosure in not having its operations unduly disrupted, causing unwarranted interference with its pursuit of its business or administrative goals.

There are recommendations for reform. It suggests that the laws should be structured in such a way as to ensure the system works. This is probably appropriate to what we are debating. It should provide for a proper investigation of problems and contain mechanisms to guarantee that these are detected and corrected. The system did not work in the Patel case because the health department was part of the problem. Its culture was such that Ms Hoffman was wasting her time raising her concerns with her superiors, yet the Whistleblowers (Protection) Act 1994 makes it clear that the only body to which Ms Hoffman could have complained was Queensland Health.

There are several other recommendations which ought to be borne in mind in the framing of legislation. In the interest of the speedy implementation of legislation, it is better to take the approach adopted by the Government until mechanisms are in place which are proved to be robust enough to deal with the complaints that emerge rather than to go down the present route and wait some time before introducing legislation similar to what is proposed in the Labour Party-Fine Gael motion whereby there is a stand alone Bill.

Photo of Seán FlemingSeán Fleming (Laois-Offaly, Fianna Fail)
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I welcome the opportunity to contribute to the debate. It is interesting that the Whistleblowers Protection Bill, which was introduced in 1999, is being debated here after such a long absence. Recent events will have encouraged people to debate the issue.

In 1999, when the Bill was first debated, most Members of the House agreed with the principle and the underlying objectives of what was contained in it. Over time, Members have examined it in more detail and realised that there is more to the issue than just one piece of legislation. The Oireachtas could do nothing worse than to pass legislation which is unenforceable in practice and which would not be able to deal with the issues for which it was intended. I would not like to see legislation going through this House which would not stand up to a rigorous test in the courts when challenged.

Given that the public bodies intended to be covered under the legislation are so diverse, it would not be remotely possible for one piece of legislation to cover all these bodies. In accepting the principle that we must protect people who blow the whistle on their colleagues' shoddy, wrong or systematic abuse within an organisation, the Government has recently been moved to include the protection intended in the Bill on a sector by sector basis. Examples include section 4 of the Protections for Persons Reporting Child Abuse Act 1988. It provides immunity from civil liability to a person who reports child abuse reasonably and in good faith. It is important that the provision "reasonably and in good faith" is included because some people could be mischievous and deliberately cause difficulty for people. Under the Ethics in Public Office Act 2001, the Standards in Public Office Commission is empowered to investigate complaints about alleged contraventions of the Act. If complaints are made by civil servants against other civil servants, where a person makes a complaint in good faith, no cause of action shall lie against that person and no disciplinary action shall be taken against him or her as a result of reporting their concerns to the commission. I understand that in future these provisions will go right down the line to local authorities and other bodies. This will encompass many activities at both local and national level where there are complaints against senior people referred to in the Ethics in Public Office Act.

The Competition Act 2002 provides that a person shall not be liable for damages in respect of a communication when writing to the Competition Authority. The theme which runs through all the legislation is that any complaint must be made in good faith. If one could make a vexatious complaint, it would be damaging to the whole process.

Section 27 of the Safety, Health and Welfare at Work Act 2005 provides for protection against dismissal and penalisation of employees who in good faith take steps to protect themselves or others in the workplace. The Garda Act 2005 provides for regulations providing for the establishment of a charter containing guidelines and a mechanism to enable members of the Garda Síochána or other persons to report in confidence allegations of corruption and malpractice within the Garda Síochána. In recent years, a number of provisions have been introduced to protect people who make legitimate complaints in good faith. These are important areas that had to be dealt with, and much more needs to be done in the future. I look forward to the Government dealing promptly with all legislation currently before the House so it can be proofed from the whistleblowers' charter point of view.

I draw a parallel between the whistleblowers Bill and the Freedom of Information Act. While there is one Freedom of Information Act, the bodies governed by the Act come under the Act on an organisation by organisation basis. No one could contemplate that one regulation, statutory instrument or section of an Act could possibly cover all the different organisations. When the Freedom of Information Act was introduced, it was done on an incremental basis. All parties in the House were involved in bringing bodies under the scope of the Freedom of Information Act. Several hundred organisations come under the Act and several more must be included, including the VEC and the Garda Síochána. When I refer to the Garda Síochána, I am referring to the administrative aspects of its work and not criminal investigations. It would be unreasonable for people to expect that the details of Garda files involved in a criminal investigation should be subject to release under the FOI.

When we consider these aspects, regardless of whether it relates to more information or protection for people who want to highlight issues under the Freedom of Information Act or a whistleblowers' charter, none of them is a substitute for good governance within an organisation. No organisation should have to rely on someone making an FOI request or blowing the whistle on wrongdoing to highlight malpractice within it. It behoves people who are paid handsome salaries in most State organisations, whether a Department or other State body, who deliver a service to people on the ground to ensure proper internal reporting systems are in place. If such a system is not in place in organisations, there will be a need for much whistleblowing and openness.

If organisations were open in how they deal with business, if they conducted reviews, if procedures were audited by people not directly involved in the area concerned and if there was peer review where people could assess what was being done by colleagues at their own level or within different sections of the organisation, it would be good for everybody concerned. That is the lesson Members of the Oireachtas must learn. We must ensure good practices in regard to the 300,000 people working in the public service, whether in the Departments of Health and Children or Education and Science, in the security services or in front-line services providing facilities. If issues need to be examined, they can be addressed internally.

People can make complaints directly to the Ombudsman if they feel aggrieved by a particular operation. Going to the Ombudsman is not confined to members of the public in that members of an organisation can take their complaints to the Ombudsman or access information under the freedom of information legislation. I appreciate the sentiments behind the motion but it is too simplistic to have one Bill covering the 300,000 people working in the public service. I support a sector by sector approach to this issue.

Tony Gregory (Dublin Central, Independent)
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Tacaím leis an rún. I support the motion and the Whistleblowers Protection Bill it proposes. It is essential if we are to achieve genuine openness, transparency and accountability in this State. Indeed, it is ironic and timely that this motion is being debated in the aftermath of the publication of the report on Our Lady of Lourdes Hospital in Drogheda regarding the cruel and bizarre activities of Michael Neary. It seems self-evident from the Neary case that this was a dreadful situation where many people must have known of the horror that was going on for a long time and the appalling treatment of the rights of the women concerned, not to mention the callous and deliberate mutilation of their bodies. Clearly many people knew but, through fear of the power of Neary, the regime in the hospital and presumably through a sense of their own helplessness, not only did nothing, they participated in what can only be described as atrocities condemning many women to a nightmare experience.

The incredible truth about the Neary case is that it could still be going on today but for the courage and determination of a whistleblower, a midwife who we only know as Ann. The Bill supported in this motion would provide a ready mechanism for a person such as that midwife to expose the abuse of people's rights and the terrible injustice perpetrated against those women. The courageous and lonely stand taken by the midwife and later by the health board official who supported her must be classic examples of the whistleblower. What they did is what we might expect of anyone but the reality is that everyone else involved was cowed into silence. It is extraordinary that the Government should now reject the legislation which would empower people to speak out and expose such injustice.

Photo of Finian McGrathFinian McGrath (Dublin North Central, Independent)
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I am grateful for the opportunity to speak in this important debate on the Whistleblowers Protection Bill and the need for comprehensive statutory protection for employees and others who blow the whistle on significant, illegal and unacceptable practices. Before I go into the details of the legislation, I will say that perhaps we should have a debate on the brass neck Bill for all the politicians in this House and elsewhere. Some of them have forgotten they received €3,000 from big developers. Others received a visit from a lobbyist in the middle of the night with €2,000 or €3,000 in a bundle of cash notes. They did not even check it but held on to it for three weeks and then sent some, or all, of it — I do not know for sure — back to the developer. People like Deputy Ned O'Keeffe must wonder what is going on in this House.

We have other problems here like those who do not even turn up for the Dáil. They drop in a couple of times per year to collect their cheques. Do these people think the people are fools? Are they all suffering from selective amnesia disorder? I am blowing the whistle on these people who are damaging politics. They insult the intelligence of the people and damage the reputation of all politicians. It is a disgrace and a scandal and, as far as I am concerned, such people should not be involved in politics.

Most people can remember their confirmation money yet two senior politicians have either forgotten or decided not to tell the gardaí about certain moneys received. That is unacceptable. I am also concerned about the deafening silence around here in recent days from Fianna Fáil, Fine Gael, the Labour Party and the Progressive Democrats in respect of these revelations. The silence from the large parties is deafening. They have a brass neck to talk about whistleblowers in this debate.

The Minister for Justice, Equality and Law Reform, Deputy McDowell, should have been drummed out of politics for his disgraceful behaviour in the Frank Connolly and the Centre for Public Inquiry affair. The legal eagles of this State have let the people down by not defending the right to justice and to a fair trial. I even witnessed this in my area when I blew the whistle on the 240 damaged homes around the Dublin Port tunnel, the leaking and cracked walls, the flooding and the pollution issues. As soon as I highlighted these issues, I was attacked by the city manager, Ministers and other politicians. I was only protecting the interests of the local residents and the safety of the staff in the tunnel. I welcome the opportunity to speak out on sleaze and whistleblowing. I commend the staff of the Standards in Public Office Commission for their excellent work.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Independent)
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I welcome the opportunity to debate this important issue. I wish to focus on the Government amendment and draw attention to a major problem with the approach, and I will do so by way of an example. The point made by the Chairman of the Oireachtas Joint Committee on Finance and the Public Service on the Freedom of Information Act was interesting but I take the opposing view. The Information Commissioner, in her report to that committee last December, recommended that the Freedom of Information Act be strengthened by the enactment of a new non-disclosure Bill. She did so because she found out by accident last October that the Freedom of Information Act had been amended by the Safety, Health and Welfare at Work Act. The effect of the amendment is that for all practical purposes, the Health and Safety Authority is no longer subject to the Freedom of Information Act.

The Information Commissioner argued that such a centralised approach would be transparent across the board, would help standardise the approach across Departments, would provide a single repository for reference purposes, would be reliable and comprehensive and would facilitate amendment. There are similarities between this and the Protection of Whistleblowers Bill. If a piecemeal approach is taken, it will take a significant amount of time to introduce this into every sector requiring a whistleblowers' charter. One piece of legislation would be preferable. Clearly, there is a value in ease of access to information. That is part of the reason there is amending legislation.

If such legislation is enacted, it would promote benefits across sectors rather than digging through various legislation to find the appropriate section. A piecemeal approach is the wrong way to go and that is why I support the proposed legislation.

Paudge Connolly (Cavan-Monaghan, Independent)
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It is important to remember that the primary purpose of this legislation is to protect people who seek to protect the public. Legislation is needed to ensure such people who speak up are not unjustly punished. It is also important they are not ridiculed or seen as trouble makers and that their job prospects are not affected, because that is what happened. Life for anybody who tried to point out wrongdoing by somebody senior was made unliveable. Protective legislation would make it easier for people to come forward.

There is a perception that this is only relevant to the health service but it is also relevant to business, all public service departments and Departments. They must obey the laws and regulations of the land. If the whistleblowers legislation was in place, there would be an obligation on people who see wrongdoing to report it and to report malpractice where it occurs. In the past we have seen cases in banking circles, in the health service and in a number of areas where people came forward as whistleblowers but they were cast aside afterwards. This would leave them without any form of excuse in that regard. One of the main difficulties is that whistleblowing usually involves an employee blowing the whistle on somebody in a more senior position. It is important that we are seen to support this proposed legislation.

Jerry Cowley (Mayo, Independent)
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One might well ask why we need whistleblower legislation. The scandal in Our Lady of Lourdes Hospital is a case in point. When it becomes evident that things have gone wrong, the State cries crocodile tears and pays lip-service to justice, equality and all the rest of it.

The Tánaiste referred earlier to isolated practitioners. Rural practitioners are put out in the wide blue yonder in remote areas or on islands. They work 168 hours a week — which is all the hours that are in a week — yet they are left to their own devices until such time as something happens and then the Government becomes interested and people say how terrible it is, ask why it is happening and so on. The Government has been covering up for its inadequacies by ignoring what is going on but when a crisis occurs, everybody says it is terrible and asks why it was not detected before now.

We need whistleblowers legislation and it is necessary right across the board. In the United States the dangers of smoking were not disclosed and cigarette companies with the powers of big business managed to keep the lid on the harmful and detrimental effects of cigarette smoking for a long time. Thanks to whistleblowers this information was eventually revealed. Whistleblowers have also made an impact in many other areas. For instance, 100 women are suffering from hepatitis C as a result of being given infected anti-D but until a scandal arises those people will be ignored by Government, as is the case at present.

Many other issues also arise where whistleblowers have made a difference. Thanks to a whistleblower, Charlie Bird brought to light what was happening in banking institutions. Such legislation is necessary for our democracy, to fight against big business and to keep tabs on Government. One could well ask how many of the scandals that have been exposed would have come to light without whistleblowers.

Photo of Eamon RyanEamon Ryan (Dublin South, Green Party)
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The Green Party is happy to support this Bill proposed by the Labour Party and other parties. I heard an interesting interview on RTE Radio One last night with Mr. Joel Bakan who has written a book called The Corporation that has also been made into a film of the same name. He set out how, in a sense, in our modern legal system a corporation is a selfish institution given huge powers and authority with few checks, if any, to bring a moral bearing to how it operates for the common good. One of the few checks is that there is a possibility that somebody within the corporation will realise that the activity in which he or she may have engaged is wrong and will blow the whistle. This is what the Bill provides for and we should introduce this welcome and significant power.

It is interesting to hear the Government's position on this matter. One key phrase came from the leader of the Labour Party, Deputy Rabbitte, who quoted from the Official Report what had been said by the Tánaiste who was responsible for the Bill at the time. She was not just a bystander giving idle comment on it. In June 2005 she said it was not the Attorney General's advice but official advice that difficulties would arise if the whistleblowing legislation applied to companies outside Ireland with a subsidiary in the country. It is quite clear that this Bill was killed because the Tánaiste's friends in large multinational companies did not like it. The Progressive Democrats Party is practically the public affairs department for those companies. I welcome them to this country and I want to see them continue here and flourish but I do not want them to have carte blanche as to how they operate.

Not surprisingly, and not for the first time, we had a different line from the Minister, Deputy Martin. There was no talk about those foreign subsidiaries having a problem. He said the problem lay with the Central Bank in terms of official secrets legislation. To be honest, of the two contradictory statements of the Tánaiste and the Minister, Deputy Martin, I do not believe what Deputy Martin said. I will never find out the truth because the Government shut down freedom of information access to correspondence between Ministers, such is its dislike for openness and transparency in Government. I do not believe a word of what the Minister, Deputy Martin, said. The Tánaiste's line is probably accurate and correct.

I do not believe the Government's piecemeal sectoral approach will work. A fisheries Bill is in the process of going through the Seanad. This is an area where there is huge concern and a possible need for whistleblowing, yet no provision has been made in this Bill for somebody in a processing factory, for example, who might want to blow the whistle on possible corruption. Neither was any reference made to sea fisheries officers who might want to blow the whistle on corruption in the industry. I do not believe the Government when it states it wants to adopt a sectoral approach and I do not believe it will work.

The Government has not provided a level of whistleblowing protection adequate to allow for the exposure of scandals such as in AIB and other institutions over the years. The Government is dishonest, disingenuous and wrong when it states that the way to approach this is a piecemeal one. I do not believe that the corporations would object to a strong approach, whatever the Tánaiste's views on the matter. What happened in companies like Enron and Arthur Andersen show that it is in the long-term interest of companies to have a proper environment wherein people can blow the whistle because if capitalism and corporations operate in a system that is not based on trust, where controls operate and proper activity is carried out, it will not work in the long run. The Government's approach is a disgraceful retreat in the face of sectoral interests against the common interest.

Photo of Caoimhghín Ó CaoláinCaoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Sinn Féin fully supports this motion from the Labour Party. There are many cases where information which is in the public interest is not revealed because individual workers justifiably fear penalisation by their employer in the absence of measures to protect them if they make such disclosures. Those workers who come forward despite the lack of protection must be commended.

The enactment of legislation to protect employees and others who blow the whistle on illegal or other unacceptable practices is long overdue. We have seen enough cases where the absence of such legislation allowed illegal and unacceptable practices to continue unchecked. Corruption and overcharging in the banking sector and the activities of Michael Neary and others at Our Lady of Lourdes Hospital in Drogheda are among the most notorious examples.

All parties in the House at least have been agreed on this matter. As has been pointed out, the Government accepted a Labour Party Bill during the previous Dáil and Committee Stage of the Bill was due to be discussed by the Select Committee on Enterprise and Small Business. Since then no progress has been made on the legislation. This is unacceptable and no credible explanation for the unwarranted delay has been given. Excuses from the Government that the delay in bringing forward this Bill is due to difficulties of applying such legislation to multinationals simply does not wash. Multinationals are subject to such legislation in many other jurisdictions.

In other states whistleblowers have played a vital role in ensuring the public interest is upheld. I am thinking, for example of the case of whistle-blowers in the tobacco industry such as Jeffrey Wigand, the tobacco executive who revealed that his former employer knew exactly how addictive and lethal cigarettes were. His revelations eventually led to the tobacco industry's $246 billion litigation settlement.

Whistleblower protection legislation is a key tool in the protection of public health and safety and in the protection of the environment. Its importance is magnified by the fact that at present we have an under-resourced Health and Safety Authority. The example of the whistle-blower in the tobacco industry is important. The enactment of such legislation would ensure that employees of companies in the food and drug sectors would come forward where they have evidence that there is a threat to public health.

There is no doubt that in the case of the tobacco industry those in charge made a deliberate calculation not to face the financial implications of properly informing the public on the dangers of tobacco. Who is to say that this is not being repeated in the pharmaceutical sector or in the processed food sector where there is increased evidence that additives being used pose a danger to human health? We must facilitate workers in these and other sectors, including the public sector, to come forward where they have information which is in the public interest.

It was mentioned during last night's debate that the Irish Nurses Organisation, the Irish Bank Officials Association and the Irish Airline Pilots Association, among others, have called for comprehensive statutory protection for employees who blow the whistle on significant illegal and unacceptable practices. The fact that the Irish Airline Pilots Association has made such a call is worth noting. Ryanair, a so-called low cost airline, which refuses to recognise trade unions, was recently the subject of a television documentary which revealed dangerous practices and poor treatment of workers. The workers at such airlines, particularly where they are denied the right to be represented by a trade union, have genuine fears about coming forward to report unacceptable practices that pose a serious danger to members of the public travelling with that airline.

Sinn Féin fully supports the demand in the motion that the select committee begin consideration of this Bill as its next immediate item of business.

Photo of Kathleen LynchKathleen Lynch (Cork North Central, Labour)
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On 3 March 2006, proceedings against a Cork doctor alleging 212 cases of serious sexual assault were stopped by the Cork Circuit Court. These charges related to a period from 1966 to 1995 and affected in one way or another hundreds of women in Cork. A total of 600 complaints were received from former patients of this doctor and 145 patients made formal statements to the Garda. People do not realise how difficult it is to make a formal statement about a sexual assault, particularly against someone who has been trusted for a lifetime.

The case was removed from the criminal list because the European Court of Human Rights ruled in December 2005 that this doctor's rights to a speedy trial had been violated. In other words, the case was delayed and this violated the accused man's human rights. It is not our job to second-guess the courts and it is not my intention to do so today — everyone is entitled to due process. Here, however, we have a situation where if a decision of the European Court is not challenged by 15 March 2006 there will be no closure for the hundreds of Cork women who have been directly or indirectly affected by this case.

The delay that led to the collapse of this trial was not exclusive to any one side but the European Court found that there were several periods of excessive delay which are partially or completely attributable to the authorities. From November 1997 to February 2000 the case was mostly taken up by disputes as to discovery and the protracted nature of the discovery process was partially the State's responsibility. It did not allow the applicant to see what it had and he did not allow the State to see what he had in evidence; privilege was claimed by both sides. From February 2000 until January 2002 the case was further delayed by the State filing affidavits just before the date originally fixed for the hearing.

From January 2002 until March 2003 the case, which began in 1995, was further delayed because it took 13 months for the High Court to deliver its reserved judgment. The court was deciding whether the accused had a case in respect of delay and it sat on the decision for 13 months. In this instance, the European Court said this delay was solely attributed to the State and the Government did not attempt to explain this delay to the court.

Hearing was finally listed for September 2003 but there was a further unacceptable delay of 12 months while the prosecution contacted the complainants to see if they wanted to proceed. People do not make complaints if they do not want to proceed and if a person does not want to proceed, he or she would contact the Director of Public Prosecutions. The court stated:

The prohibition on prosecution was lifted in September 2003. Even if it was reasonable for the authorities to await the outcome of the appeal to the Supreme Court, they could, in the meantime, have contacted all the complainants to verify that they were still willing to proceed. In any event, while there were numerous complainants, it is not persuasively explained why a year was required for this verification process. Given the delay until then, there is no justification found for the authorities delay of one year in reopening the proceedings following the judgment of the Supreme Court.

The final date for the Government to appeal this decision to the European Court is next Wednesday, 15 March. If this decision is not appealed, and at this late juncture it seems unlikely, then this case will not go any further. This is not a satisfactory situation and many questions will go unanswered.

I do not know how effective a whistleblowers' charter would be in addressing this situation but this boiled down to one woman going into a Garda station and making a complaint. That woman, who has never been publicly identified, must have been very brave. If there is negligence or worse, however, I would like to think that the person who brought this to the public attention would be protected against litigation or victimisation. There is every possibility that this will happen. Too frequently people are feeling let down by officialdom, and more often than not those people are women.

Whistleblowers are not just people who expose wrongdoing in the medical field. I was looking at a case in England where a company supplying water had deliberately built into its calculation an increase that would make it additional millions. One man stood up against the company and said it was wrong.

I do not normally do this but I thought Deputy Eamon Ryan's contribution tonight was excellent and Deputy Catherine Murphy was, as usual, incisive. I am sorry that Deputy Finian McGrath left directly after speaking but he was so full of vainglorious pomposity as to be not worth listening to. I have never heard him make a contribution in this House where he did not talk about "I, I, I". It is "I did this, I did that, I totally opposed". His job is to represent the people, not to feed his own ego.

8:00 pm

Photo of Brian O'SheaBrian O'Shea (Waterford, Labour)
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Tá áthas orm páirt a ghlacadh sa díospóireacht tábhachtach seo ar an mBille um Chosaint Sceithirí 1999. Cúis bhróin í go raibh ar cheannaire Pháirtí an Lucht Oibre, an Teachta Rabbitte, an Bille seo a thabhairt os comhair na Dála don dara huair. Tá achtú an Bille seo chomh tábhachtach anois, nó níos tábhachtaí, agus a bhí nuair a aontaíodh an Dara Céim den Bhille sa Dáil ar 16 Meitheamh 1999. Is beag dul chun cinn éifeachtach a tharla ó shin le cosaint dhlí a chur in áit do dhaoine a dhéanann nochtann eachtraí áirithe i ndáil le gnóthaí a bhfostóirí. Leag an tAire agus é ag caint sa díospóireacht aréir an-bhéim ar chur chuige earnáileach agus go raibh sé chun treoir a thabhairt don Phríomh Aoire dul i mbun oibre le Bille um Chosaint Sceithirí 1999 a bhaint de Riar na hOibre sa Dáil. Céim mhór siar atá i gceist a léiríonn nach bhfuil an Rialtas i ndáiríre ar chor ar bith ó thaobh cosaint a thabhairt d'fhostaithe atá cróga agus macánta gnóthaí mídhleathacha a nochtadh ar mhaithe le leas an phobail.

In last night's debate the Minister for Enterprise, Trade and Employment, Deputy Martin, laid great store by the sectoral approach to dealing with the issue of whistleblowing. This could be more accurately described as an incremental approach. He outlined four main areas which eventually led the Government to embrace the sectoral approach and the proposal of the Minister to instruct the Chief Whip to seek to remove the Whistleblowers Protection Bill 1999 from the Dáil Order Paper. These areas were trade secret type industrial processes where they overlap with intellectual property rights, protections under the Unfair Dismissals Acts 1997 to 1993, the Official Secrets Act 1963 and obligations on designated bodies and the Central Bank of Ireland to report certain suspected money laundering activities to the Revenue Commissioners.

The problem with the drawn-out nature of the incremental, sectoral approach is that it will take forever to fully implement. No one knows this better than the Progressive Democrats-Fianna Fáil Government which, thankfully, will soon leave office. What the sectoral approach will achieve in terms of whistleblower protection in the interim will be restricted, to say the least.

If we accept that the four major areas outlined by the Minister require more considered attention, why not amend the Bill on Committee Stage and insert enabling provisions to deal with more complex areas by way of statutory instruments or other primary legislation? The Whistleblowers Protection Bill 1999, as amended, would have provided protection to the vast majority of whistleblowers.

For a whistleblower strategy to achieve maximum success in an economy in which money laundering is a significant feature, whether carried out by criminal gangs or subversive criminals, greater protection than can be provided in this Bill would be required. When such proceeds of crime are either invested in or laundered through legitimate business, whistleblowers in these areas are open to intimidation, threats of violence and even death. How can the State protect such whistleblowers in an area that is, unfortunately, a growing feature of the Irish and other European Union economies? The onus falls on the Government, in particular the Minister for Justice, Equality and Law Reform, Deputy McDowell, to urgently develop effective measures to protect whistleblowers where crime and business interface. While this is probably the area in which whistleblowing would be of most benefit to society, it is also the one in which it is least likely to occur.

Another aspect of whistleblowing is the possibility that the civil rights of whistleblowers would be infringed when, for instance, a known whistleblower becomes redundant or wishes to leave his or her employment to seek alternative employment. The trade union movement is well aware that it is exceedingly difficult to prove the existence of blacklists. Although the purpose of the Employment Appeals Tribunal is to deal with unfair dismissals, it is much more difficult to determine the extent to which equality legislation can be used to protect whistleblowers from unfair but well concealed recruitment practices.

Difficulties undoubtedly arise in fine-tuning this legislation. The Oireachtas frequently seeks to address issues which must be omitted from legislation due to insurmountable constitutional or legal reasons. The Government has come full circle on the Whistleblowers Protection Bill, which it initially embraced but now proposes to remove from the Order Paper. Last night the Minister stated that the important public issues which gave rise to Deputy Rabbitte's original proposal have not diminished in relevance and added that while "appropriate provisions to address these issues have been included in a number of statutes, there can be no sense of complacency". What nonsense and hypocrisy. What a phoney salute to the cause of accountability and transparency. The decision of the Government, through a vote tonight, to substantially put back the cause of accountability and transparency will not surprise Deputies on this side.

It has been seven years since the Bill was accepted by the House and all sorts of prevarication has occurred in the interim. For example, a number of cases to emerge have demonstrated that if whistleblowing legislation had been on the Statute Book, wrongdoing would probably have been identified and addressed much quicker. A number of such instances were outlined during this debate. Earlier, the House debated the Lourdes hospital inquiry report into the Dr. Neary affair. The background to that case clearly illustrates that if people, particularly those in what are described as junior positions, had been able to raise, without fear of repercussions or losing their jobs, their concerns about practices they had witnessed, some of the unfortunate women affected by malpractice might have been saved the horrors they were put through. It is awful to have to make this point.

If people had been in a position to speak out in several cases and reveal what they knew about wrongdoing or denial of justice, the State would be in a much better position. The Government parties, particularly the Progressive Democrats, made an enormous play of the need for accountability and transparency both in Government and Opposition. They have shown their commitment to these concepts by significantly emasculating the freedom of information legislation introduced by the rainbow coalition.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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It was the first thing the Government did.

Photo of Brian O'SheaBrian O'Shea (Waterford, Labour)
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They are now playing ducks and drakes with this issue in raising spurious reasons, such as the four I outlined, for not proceeding with the Bill. The substance of the position is that if the legislation presented in the House on two occasions by Deputy Rabbitte was passed into law, perhaps incorporating the more than 40 amendments the Government originally produced, all reasonable people would conclude that the possibility of individuals coming forward to report wrongdoing to the appropriate authorities would have been enhanced and we would have avoided a great deal of wrongdoing.

To return to the issue of money laundering, some of the material I have read recently on what is taking place in Britain, other European Union countries and, to an increasing extent, Ireland, indicates that it is increasingly difficult to persuade people to blow the whistle on this cancer which is damaging the fabric of society.

The Minister for Justice, Equality and Law Reform has failed to deal with the major problems we face. Instead, he has apportioned blame in all directions, pointing to a lack of intelligence preceding the riots in Dublin and arguing that sentences imposed by courts should be much stiffer. These excuses do not cut ice because problems are not being faced.

The phenomenon of crack cocaine is rearing its ugly head in this city, notably in parts of the north inner city. This is a most awful drug and if it takes hold here, as it has in other places such as parts of Britain, crime will increase as addicts seek money to pay for their habit. In ducking this issue, the Government has demonstrated that, despite its rhetoric, it has no real commitment to transparency and accountability.

Photo of Tony KilleenTony Killeen (Minister of State, Department of Enterprise, Trade and Employment; Clare, Fianna Fail)
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Deputy Rabbitte's Bill addressed an area of major importance to the public. However, as my colleague, the Minister for Enterprise, Trade and Employment, Deputy Martin, noted last night, a number of difficulties have arisen with regard to the original proposal. While extensive work was done on redrafting the original Bill, attempts to protect whistleblowers on the basis of a single comprehensive statute have proven exceptionally difficult. This is hardly surprising, given that similarly comprehensive legislation introduced elsewhere has had to be revisited.

In this regard, a number of complex legal issues arose in the following areas: the need to have regard for the Central Bank's confidentiality regime and EU legislation in this area; the Official Secrets Act 1963 and its implications for civil servants; the protection of trade secret type industrial processes, as well as interaction with intellectual property rights; and the nature of the protections afforded to whistleblowers under the Unfair Dismissals Acts 1977 to 1993. In light of these issues, the Government believes the provision of statutory protection for whistleblowers on a sectoral basis provides a better and more focused approach to enabling proper and protected disclosure on information.

Important legislation has already been enacted in this area. Section 4 of the Protections for Persons Reporting Child Abuse Act 1998 provides immunity from civil liability to persons who report child abuse reasonably and in good faith. Under the Ethics in Public Office Act 2001, the Standards in Public Office Commission is empowered to investigate complaints about alleged contraventions of the Ethics in Public Office Acts 1995 to 2001 regarding disclosure of interests and compliance with tax clearance requirements. Section 50 of the Competition Act 2002 provides that a person shall not be liable for damages in respect of the communication, whether in writing or otherwise, by him or her to the Competition Authority of his or her opinion that an offence under section 6 or 7 of the Act has been or is being committed or any other provision of the Act that prohibits an undertaking from a particular action has not been or is not being complied with, unless it is proved that he or she has not acted reasonably and in good faith in forming that opinion and communicating it to the authority. The 2002 Act also provides that an employer shall not penalise an employee for having formed an opinion of the kind referred to in section 50(1) of the Act and communicated it, whether in writing or otherwise, to the authority if the employee has acted reasonably and in good faith in forming that opinion and communicating it to the authority.

Other more recent legislative initiatives in this regard include section 27 of the Safety, Health and Welfare at Work Act 2005, which came into effect from 1 September 2005 and which provides for protection against dismissal and penalisation of employees who in good faith take steps to protect themselves or others in a workplace situation. I brought this legislation through the Houses last summer because I was anxious to ensure protection for workers who brought attention to health and safety issues in their workplaces. Section 124 of the Garda Síochána Act 2005 provides for regulations on the reporting of corruption and malpractice in the Garda Síochána. In addition, the Minister tabled a Government amendment to provide for a whistleblower section in the Employment Permits Bill which is currently on Committee Stage.

It should be acknowledged that Deputy Rabbitte's Bill attempts to address an issue of public concern. At issue is how best to achieve his Bill's aims and whether it is better to provide for them through one comprehensive Bill or by means of a sectoral approach.

Photo of Emmet StaggEmmet Stagg (Kildare North, Labour)
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It took the Government seven years to consider it.

Photo of Tony KilleenTony Killeen (Minister of State, Department of Enterprise, Trade and Employment; Clare, Fianna Fail)
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Throughout this debate and in earlier airings of this issue, the Government has attempted to give the House a flavour of the exceptional legal difficulties it encountered in seeking to give legislative effect to the provisions in the original Bill.

Photo of Emmet StaggEmmet Stagg (Kildare North, Labour)
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The Minister of State should get rid of that script.

Photo of Tony KilleenTony Killeen (Minister of State, Department of Enterprise, Trade and Employment; Clare, Fianna Fail)
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I have no reason to believe these problems can be satisfactorily resolved in the near future on the basis of a single, comprehensive and overly complicated legislative initiative, despite the goodwill and hard work of all sides. We need to ensure that all legislative initiatives are apposite to the problems being addressed and that they will lead to an appropriate change in response. This is best done on a sectoral basis, so that reporting mechanisms can be tailored within existing structures.

The Government has agreed with the proposal to formalise the sectoral approach as part of its policies. I assure Members there will be ample opportunity to address these issues and that the Government will welcome their input.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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I seek the House's permission to share time with Deputy Kenny.

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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Is that agreed? Agreed.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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As a former Minister for the Environment, I am in favour of recycling. However, the Department of the Environment, Heritage and Local Government could at least have done the Minister of State the service of providing him with a fresh script rather than recycling the Minister's material from last night.

Photo of Tony KilleenTony Killeen (Minister of State, Department of Enterprise, Trade and Employment; Clare, Fianna Fail)
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It is not exactly the same.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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The Minister of State's rehearsal of the so-called sectoral provisions which have been enacted is indicative of the Government's attitude to this fundamental legislation. The Whistleblowers Protection Bill was introduced in 1999, seven years ago. Few Bills of such importance have been in limbo for so long. When the Bill was originally introduced, it was endorsed by all sections of the House and regarded as strategic legislation which would dovetail with the Freedom of Information Act 1997, the Ethics in Public Office Act 1995 and the Electoral Acts to create a corpus of law that would reform the conduct of business in this country, end some of the awful practices in various sectors and enshrine in legislation the principles of transparency and accountable administration. The Government accepted the Bill or, at least, pretended to do so. However, we have not advanced one iota on this issue since 1999.

The issues at stake are fundamental to one of the most important duties of each Member of this House, namely holding public administration to account. Part of that duty, which we do not always take seriously, is ensuring that private business is conducted in compliance with the laws set down by the Oireachtas.

After seven wasted years, we received a response from the Minister last night. It was not as much an explanation as an apologia for inaction. Apparently, it was decided that 45 amendments would be required. So what? In 2001, the Government approved a replacement Bill which would incorporate these amendments. In 2002, however, the Government decided that further consultation was necessary but that never took place. The Bill fell with the dissolution of the Dáil in April 2002 and was restored to the Order Paper in June 2002. Obviously, the principle could not be abandoned by the Government because it felt it had to pay public lip-service to the idea of enshrining a clear whistleblowers' charter in legislation. The Minister of State has now explained that a new sectoral approach is needed. This was aptly described by my colleague, Deputy O'Shea, as an incremental approach. Instead of putting an overarching Bill before the House so that whistleblowers in all spheres of public and private activity would be protected in reaching out to a proper authority in an appropriate way, the Government will take whatever Bill happens to be in the legislative queue and, if it is suitable, a whistleblowers amendment will be grafted on to it.

I will say two things in this regard. I took the Civil Service Regulation (Amendment) Bill 2004 for my colleague, Deputy Burton. I tabled a whistleblowers amendment to it and it was voted down by the Government. That was only last year. The Minister of State spoke of enshrined public policy to deal with whistleblowers in every legislation that is introduced and he had the temerity to instance the Employment Permits Bill 2005 that is currently on Committee Stage. It was published only a few short weeks ago and it had no such provision in it. That was introduced today by way of amendment, no doubt to cover the nakedness of the approach and the pretence that this was settled Government policy, when it is no such thing.

When will all areas of public and private policy be covered by this so-called sectoral approach? It will never be done. In accordance with Murphy's law, it will always be that area of operation not covered that will be the focus of the next crisis. We have seen it often in the recent past, in such examples as the Neary case and the beef tribunal. It has been relevant to some areas of which I have personal experience, and in the minute or so I have remaining I will comment on this.

As the recipient of information from a whistleblower, I have stated publicly that my informant — I do not like using that word as it has negative connotations — came to me with deeply unsettling but verifiable information on unsavoury practices by certain gardaí in Donegal. That sent a shiver down my spine. Most citizens who wish to bring such information into the public domain would be terrified of taking on a major institution, be it the Garda Síochána or any other large State institution which has endless pockets and might. We have a moral obligation to give such people all the protection we can. The measures in this legislative provision are meagre enough in letting brave people reach out to a proper public authority to blow the whistle on perceived wrongdoing.

There are enough obstacles to an era of transparency that all of us have pretended to want. The proof of the pudding is in the eating. We on this side of the House brought in the Freedom of Information Act, which the Government emasculated as soon as it took office. We brought in transparency regulation with regard to the Electoral Acts, and these were also watered down. When the Government has finally been asked to put its money where its mouth is and remove this obstacle to openness and allow some measure of support for people to reach out and report wrongdoing, it refuses to do so. It is shameful and characteristic of a frame of mind that is the antithesis of open and transparent administration.

Photo of Enda KennyEnda Kenny (Leader of the Opposition; Opposition Spokesperson on Northern Ireland; Mayo, Fine Gael)
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Fine Gael is happy to support the Labour Party Bill on the whistleblowers issue. If the outrageous scandals exposed in the great bastions of Irish society over the past few years have proved anything, it is that Ireland needs whistleblowers and plenty of them. It is said that all it takes for evil to thrive is for good people to do nothing. I firmly believe that when good people act for the good of our country and society, against the received wisdom, we in here should make it our business to protect them, and that is what this Bill would do.

In the case of child abuse, for example, the local industrial school or reformatory kept the wider community in business, be it as cleaners, butchers, doctors, housekeepers, gardeners, inspectors, grocers or bakers. If there had been a charter to protect any one of them brave enough to blow the whistle on what they saw, would that guilty minority of our State-appointed, church-appointed "betters" have gone on inflicting terror on small boys and girls for as long as they did?

Times are certainly changing in this country. As a nation, we are overcoming our colonial past and breaking the taboos about our traditional "betters". Confident and well educated, we are leaving behind our culture of deference to those in authority, be they church, banks or politics. With the Neary case, we are leaving behind our deference to medicine, one of the last bastions of the status quo.

As people often remind me, patients in our hospitals have had a surreal experience in their thousands. A sister rings the bell and right on cue, a doctor sweeps into the ward with a gaggle of students in tow. He peers at you over his half glasses from the papal balcony — the end of the bed — and then proceeds to recount your entire private medical history to his captive trainee audience, and everyone else within earshot behind the curtains. The nurses and students dance attendance and from the disadvantage of the depths of the bed, you mumble your thanks to the doctor. You might be reminded that it is "Mister" as they turn and sweep out, as one, on to their next appointment. The subtext always being that the privilege is all yours. Anyway, has everyone not heard the line "trust me, I'm a doctor"?

It was exactly that culture of deference that led to the Neary case and perhaps more like it, but that will be no more. I believe the many excellent practitioners in the medical profession, and others, will welcome this legislation and the more democratic, collegial and accountable approach to their work which it will bring.

I very much regret that in an age when people have lost touch with what passes for politics, the Government, by being so timid around the issue of this whistleblower legislation proposed by the Labour Party, is missing the chance to restore politics in the public heart as capable of making a real difference to their lives, by changing things for the better. Normally so rankly expedient, the kid gloves are around this legislation, where the Government is obsessing over the legal niceties and fussing over the letter as opposed to the spirit of the legislation. The approach is not just odd, it is disappointing and infuriating.

The Government could proceed, instigate the protection, make things safer for the person, the patient, the consumer, and deal with potential difficulties later, but it will not do so. While it is obsessing over sectoral interests, who knows what scandals will continue undetected and unpublicised? When one considers that this Government, which strangled the Freedom of Information Act, is the most secretive since the Haughey era, one can see its strangely cautious approach as a serious case of nerves, or "be careful for what you wish for".

The debate over the past two nights highlights a sharp distinction between the approach of the Fine Gael and Labour parties and the approach of the Government. While both sides support the protection of genuine whistleblowers, there is a fundamental difference in how we each would implement that commitment. The Labour and Fine Gael parties believe that a broad cross-cutting protection of whistleblowers is necessary. On the other hand, the Government takes the view that a sectoral approach on a case by case basis is better.

I believe there is a fundamental flaw in the Government's approach. We should look back at some of the scandals referred to by Deputy Howlin which have afflicted Irish society in recent years, such as the DIRT inquiry, a scandal involving financial institutions and offshore activities, nursing homes and, most recently, the Neary case. It is only after the damage has been done that we begin to get an understanding of what happened and why. In almost all these scandals, if an effective whistleblower protection was in place, it is certainly possible that someone might have come forward at a much earlier stage and prevented damage to patients or financial loss to consumers. The Government's approach has been to close the stable door after every horse has bolted. By definition, that means that for scandals about which we may yet have to hear, no protection will be in place for whistleblowers. A broad, cross-cutting measure which provides a broad level of protection for whistleblowers should be put in place at least until the various sectoral measures have been enacted. For example, if the Government suggested that this Bill should be the subject of a sunset clause to come into effect in five years' time when sectoral protections have been put in place, it would be a move in the right direction.

Deputies of all parties come across whistleblowers in various guises. Last year I was approached by somebody who said they had a conscience and wanted to tell me something about the computer system in the Health Service Executive and the health boards, and so the PPARS issue came to light. That person had no protection. Their identity is still unknown but they had great courage and wanted to tell the nation about the issue.

The Government's approach is unnecessarily divisive. If there are legal difficulties with cross-cutting whistleblower legislation, let them be teased out on Committee Stage of the Bill. The process would certainly be quicker than waiting for the Government to legislate sectorally case by case. I make the plea to the Minister to accept the referral of the Bill to Committee Stage. Let us work out any legal issues that need to be worked out afterwards. Let us put in place a support for genuine whistleblowers who act in the public interest, in the interest of patients and in the interests of consumers. We strongly support the Bill proposed by the Labour Party.

Amendment put.

The Dail Divided:

For the motion: 67 (Dermot Ahern, Michael Ahern, Noel Ahern, Barry Andrews, Seán Ardagh, Johnny Brady, Martin Brady, Séamus Brennan, John Browne, Joe Callanan, Ivor Callely, Pat Carey, John Carty, Donie Cassidy, Beverley Flynn, Mary Coughlan, Brian Cowen, John Cregan, Martin Cullen, John Curran, Noel Davern, Síle de Valera, Tony Dempsey, John Dennehy, Jimmy Devins, John Ellis, Frank Fahey, Michael Finneran, Dermot Fitzpatrick, Seán Fleming, Pat Gallagher, Jim Glennon, Noel Grealish, Seán Haughey, Máire Hoctor, Joe Jacob, Peter Kelly, Tony Killeen, Séamus Kirk, Tom Kitt, Brian Lenihan Jnr, Conor Lenihan, Tom McEllistrim, John McGuinness, Micheál Martin, John Moloney, Michael Moynihan, Michael Mulcahy, M J Nolan, Seán Ó Fearghaíl, Charlie O'Connor, Liz O'Donnell, John O'Donoghue, Denis O'Donovan, Noel O'Flynn, Batt O'Keeffe, Ned O'Keeffe, Fiona O'Malley, Tim O'Malley, Tom Parlon, Peter Power, Brendan Smith, Michael Smith, Noel Treacy, Mary Wallace, Ollie Wilkinson, Michael Woods)

Against the motion: 55 (Bernard Allen, Dan Boyle, James Breen, Tommy Broughan, Richard Bruton, Joan Burton, Paul Connaughton, Joe Costello, Jerry Cowley, Seymour Crawford, John Deasy, Jimmy Deenihan, Bernard Durkan, Eamon Gilmore, John Gormley, Tony Gregory, Tom Hayes, Joe Higgins, Michael D Higgins, Phil Hogan, Brendan Howlin, Enda Kenny, Kathleen Lynch, Pádraic McCormack, Dinny McGinley, Finian McGrath, Paddy McHugh, Liz McManus, Olivia Mitchell, Breeda Moynihan-Cronin, Catherine Murphy, Dan Neville, Michael Noonan, Caoimhghín Ó Caoláin, Aengus Ó Snodaigh, Fergus O'Dowd, Jim O'Keeffe, Brian O'Shea, Jan O'Sullivan, Séamus Pattison, Willie Penrose, John Perry, Pat Rabbitte, Michael Ring, Eamon Ryan, Seán Ryan, Trevor Sargent, Joe Sherlock, Róisín Shortall, Emmet Stagg, David Stanton, Billy Timmins, Liam Twomey, Mary Upton, Jack Wall)

Tellers: Tá, Deputies Kitt and Curran; Níl, Deputies Stagg and Neville.

Amendment declared carried.

Question put: "That the motion, as amended, be agreed to."

The Dail Divided:

For the motion: 66 (Michael Ahern, Noel Ahern, Barry Andrews, Seán Ardagh, Johnny Brady, Martin Brady, Séamus Brennan, John Browne, Joe Callanan, Ivor Callely, Pat Carey, John Carty, Donie Cassidy, Beverley Flynn, Mary Coughlan, Brian Cowen, John Cregan, Martin Cullen, John Curran, Noel Davern, Síle de Valera, Tony Dempsey, John Dennehy, Jimmy Devins, John Ellis, Frank Fahey, Michael Finneran, Dermot Fitzpatrick, Seán Fleming, Pat Gallagher, Jim Glennon, Noel Grealish, Seán Haughey, Máire Hoctor, Joe Jacob, Peter Kelly, Tony Killeen, Séamus Kirk, Tom Kitt, Brian Lenihan Jnr, Conor Lenihan, Tom McEllistrim, John McGuinness, Micheál Martin, John Moloney, Michael Moynihan, Michael Mulcahy, M J Nolan, Seán Ó Fearghaíl, Charlie O'Connor, Liz O'Donnell, John O'Donoghue, Denis O'Donovan, Noel O'Flynn, Batt O'Keeffe, Ned O'Keeffe, Fiona O'Malley, Tim O'Malley, Tom Parlon, Peter Power, Brendan Smith, Michael Smith, Noel Treacy, Mary Wallace, Ollie Wilkinson, Michael Woods)

Against the motion: 56 (Bernard Allen, Dan Boyle, James Breen, Tommy Broughan, Richard Bruton, Joan Burton, Paul Connaughton, Joe Costello, Jerry Cowley, Seymour Crawford, John Deasy, Jimmy Deenihan, Bernard Durkan, Eamon Gilmore, John Gormley, Tony Gregory, Tom Hayes, Joe Higgins, Michael D Higgins, Phil Hogan, Brendan Howlin, Enda Kenny, Kathleen Lynch, Pádraic McCormack, Shane McEntee, Dinny McGinley, Finian McGrath, Paddy McHugh, Liz McManus, Olivia Mitchell, Breeda Moynihan-Cronin, Catherine Murphy, Dan Neville, Michael Noonan, Caoimhghín Ó Caoláin, Aengus Ó Snodaigh, Fergus O'Dowd, Jim O'Keeffe, Brian O'Shea, Jan O'Sullivan, Séamus Pattison, Willie Penrose, John Perry, Pat Rabbitte, Michael Ring, Eamon Ryan, Seán Ryan, Trevor Sargent, Joe Sherlock, Róisín Shortall, Emmet Stagg, David Stanton, Billy Timmins, Liam Twomey, Mary Upton, Jack Wall)

Tellers: Tá, Deputies Kitt and Curran; Níl, Deputies Stagg and Neville.

Question declared carried.