Charlie O'Connor (Dublin South West, Fianna Fail)
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Amendment No. 1, in the name of Deputy Alan Shatter, arises out of Committee Stage proceedings. Amendments Nos. 2 and 3 are related and alternative to amendments Nos. 1, 4 and 21 which are related. Therefore, amendments Nos. 1 to 4, inclusive, and 21 will be discussed together.

Alan Shatter (Dublin South, Fine Gael)
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I move amendment No. 1:

In page 5, to delete lines 15 to 48, to delete pages 6 to 9 and substitute the following:

"4.—The Act of 2001 is amended by inserting the following sections after section 8:

8A.—(1) In this Part, 'employee' and 'employer' have the same

meaning as in the Unfair Dismissals Acts 1997-2007.

(2) In this Part, 'penalise' includes any act or omission by an

employer or a person acting on behalf of an employer that affects

an employee to his or her detriment with respect to any term or

condition of his or her employment and which is consequent upon

a protected disclosure by the employee.

(3) For the purposes of subsection (2) but without prejudice to

its generality, penalization includes suspension, lay-off or

dismissal (including a dismissal within the meaning of the Unfair

Dismissals Acts 1977 to 2005), or the threat of suspension, lay-off

or dismissal, demotion or loss of opportunity for promotion,

transfer of duties, change of location of place of work, reduction

in wages or a change in working hours, imposition of any

discipline, reprimand or other penalty (including a financial

penalty), coercion, intimidation or harassment, injury, damage or

loss, and threats of reprisal.

(4) Subsection (2) shall not be construed in a manner which

prevents an employer from ensuring that the business of the body

concerned is carried on in an efficient and effective manner.

8B.—Where an employee makes, in good faith and not for

personal gain, a disclosure to an authorised person and the

employee has reasonable grounds for believing that it will show

one or more of the following:

(a) that a criminal offence has been committed, is being

committed, or is likely to be committed;

(b) that a person has failed, is failing or is likely to fail to

comply with any legal obligation to which he is subject;

(c) that a miscarriage of justice has occurred, is occurring or

is likely to occur;

(d) that the health and safety of any individual has been, is

being or is likely to be endangered;

(e) that the environment has been, is being or is likely to be

damaged;

(f) that there is conduct which has led, is leading or is likely

to lead to a misuse or substantial waste of public funds;

(g) that there is conduct leading to concern about

questionable accounting, internal controls or auditing

matters;

(h) that the health or welfare of a person who is receiving a

health or personal social service has been, is or is likely

to be at risk;

(i) that the actions of any person employed has posed, is

posing or is likely to pose a risk to the health or welfare

of the public;

(j) that the information tending to show any matter falling

within any one of the preceding paragraphs has been, is

likely to be deliberately concealed or destroyed;

then disclosure shall be a protected disclosure under this Act.

8C.—Notwithstanding anything in the Official Secrets Act 1963

a disclosure of information to which section 15 relates shall be a

protected disclosure if the employee makes the disclosure in

accordance with section 17.

8D.—(1) A qualifying disclosure is made in accordance with

this section if the worker—

(a) makes the disclosure in good faith to a person prescribed

by Regulation made by the Minister for Finance for the

purposes of this section, and

(b) reasonably believes—

(i) that the relevant disclosure falls within any

description of matters in respect of which that

person is so prescribed, and

(ii) that the information disclosed, and any allegation

contained in it, are substantially true.

(2) An order prescribing persons for the purposes of this section

may specify persons or descriptions of persons, and shall specify

the descriptions of matters in respect of which each person, or

persons of each descriptions, is or are prescribed.

8E.—(1) A person is not liable in damages in consequence of a

protected disclosure.

(2) Subsection (1) does not apply in respect of a person who

makes a disclosure knowing it to be reckless as to whether it is

false, misleading, frivolous or vexatious or who, in connection

with a disclosure, furnishes information that the person knows to

be false or misleading.

(3) The reference in subsection (1) to liability in damages shall

include a reference to any other form of relief.

8F.—(1) An employer shall not penalise an employee for

making a protected disclosure.

(2) A contravention of subsection (1) is a ground of complaint

by an employee to a rights commissioner.

(3) In proceedings before a rights commissioner or the Labour

Court in relation to a complaint of a contravention of subsection

(1), it shall be presumed, unless the contrary is proved, that the

disclosure was a protected disclosure.

(4) If the contravention of subsection (1) was a dismissal of the

employee within the meaning of the Unfair Dismissals Acts 1977

to 2005, relief may not be granted to the employee both under this

section and under those Acts.

(5) A rights commissioner hearing a complaint under this

section shall—

(a) give the parties an opportunity to be heard and to present

any evidence relevant to the complaint,

(b) give a decision in writing, and

(c) communicate it to the parties.

(6) A decision of a rights commissioner under subsection (5)

shall do one or more of the following:

(a) declare that the complaint was or, as the case may be,

was not well founded;

(b) require the employer to comply with subsection (1) and

to take specified steps;

(c) order the employer to pay to the employee compensation

of such amount (if any) as is just and equitable having

regard to all the circumstances.

(7) A rights commissioner shall not entertain a complaint under

this section unless it is presented to him or her within the period

of 12 months beginning on the date of the contravention, unless

there are circumstances that prevented the presentation of the

complaint within that period, in which case the rights

commissioner may allow such further period for the presentation

of a complaint under this section, not exceeding 6 months from

the expiration of the period of 12 months, as the rights

commissioner considers reasonable.

(8) (a) A complaint under this section shall be presented to a

rights commissioner by giving notice of it in writing to

him or her and the notice shall contain such particulars

and be in such form as may be specified from time to

time by the Minister for Finance.

(b) A copy of a notice under paragraph (a) shall be given to

the employer by the rights commissioner.

(9) Proceedings under this section before a rights commissioner

shall be conducted otherwise than in public.

(10) A rights commissioner shall furnish the Labour Court with

a copy of any decision given by the commissioner under this

section.

(11) A party to proceedings under this section before a rights

commissioner may appeal to the Labour Court from a decision of

the rights commissioner and, on an appeal, the Labour Court shall—

(a) give the parties an opportunity to be heard by it and to

present to it any evidence relevant to the appeal,

(b) make a determination in writing in relation to the appeal

affirming, varying or setting aside the decision, and

(c) communicate the determination to the parties.

(12) (a) An appeal under this section shall be initiated by the

giving, by the party appealing, within 6 weeks of the

date on which the decision to which it relates was

communicated to that party, of a notice in writing to the

Labour Court under subsection (11) and stating the

intention of that party to appeal.

(b) A copy of a notice under paragraph (a) shall be given by

the Labour Court to the other party as soon as

practicable after the receipt of the notice by the Labour

Court.

(13) The following matters, or the procedures to be followed in

relation to those matters, shall be determined by the Labour Court,

namely:

(a) the procedure in relation to the initiation and the hearing

by the Labour Court of appeals under this section;

(b) the times and places of hearings of such appeals;

(c) the representation of the parties to such appeals;

(d) the publication and notification of determinations of the

Labour Court;

(e) the particulars to be contained in a notice under

subsections (12) and (14);

(f) any matters consequential on, or incidental to, the

matters referred to in paragraphs (a) to (e).

(14) (a) The Minister for Finance, may, at the request of the

Labour Court, refer a point of law arising in

proceedings under this Part before it to the High Court

for determination.

(b) A party to proceedings before the Labour Court may

appeal to the High Court from a determination of the

Labour Court on a point of law.

(c) The determination of the High Court under this

subsection is final and conclusive.

(15) (a) Where a decision of a rights commissioner under

subsection (6)(b) or (c) has not been implemented by

the employer in accordance with its terms, the time for

bringing an appeal against the decision has expired and

no such appeal has been brought, the employee may

bring the complaint before the Labour Court and the

Labour Court shall, without hearing the employer or

any evidence (other than in relation to the matters),

make a determination to the like effect as the decision.

(b) The bringing of a complaint before the Labour Court by

virtue of this subsection shall be effected by giving to

the Labour Court a notice in writing containing such

particulars (if any) as may be determined by the Labour

Court.

(16) Proceedings under this section before the Labour Court

shall be heard otherwise than in public.

(17) The Labour Court shall publish, in a manner it considers

appropriate, particulars of any determination made by it under

paragraphs (a), (b), (c), (e) or (f) of subsection (13) (not being a

determination as respects a particular appeal under this section) or

subsection (15)(b).

8G.—(1) The Labour Court shall, on the hearing of any matter

referred to it under this Part, have power to take evidence on oath

and for that purpose may cause oaths to be administered to

persons attending as witnesses at the hearing.

(2) Any person who, upon examination on oath authorised

under this section, wilfully and corruptly gives false evidence or

wilfully and corruptly swears anything which is false is guilty of

an offence and, on conviction, is liable to the penalties for wilful

and corrupt perjury.

(3) The Labour Court may, by giving notice in that behalf in

writing to any person, require the person to attend at such time

and place as is specified in the notice to give evidence in relation

to any matter referred to the Labour Court under this section or to

produce any documents in his or her possession, custody or

control which relate to any such matter.

(4) A notice under subsection (3) may be given either by

delivering it to the person to whom it relates or by sending it by

post in a prepaid registered letter addressed to the person at the

address at which he or she ordinarily resides.

(5) A person to whom a notice under subsection (3) has been

given and who refuses or wilfully neglects to attend in accordance

with the notice or who, having so attended, refuses to give

evidence or refuses or wilfully fails to produce any document to

which the notice relates is guilty of an offence and is liable on

summary conviction to a fine not exceeding €3,000.

8H.—(1) (a) If an employer fails to carry out in accordance

with its terms a relevant determination of the Labour

Court under section 20 within 6 weeks from the date on

which the determination is communicated to the

parties, the Circuit Court shall, on application to it in

that behalf by the employee, without hearing the

employer or any evidence (other than in relation to the

matters aforesaid), make an order directing the

employer to carry out the determination in accordance

with its terms.

(b) In paragraph (a), a 'relevant determination' means a

determination in relation to which, at the expiration of

the time for bringing an appeal against it, no such

appeal has been brought, or if such an appeal has been

brought, it has been abandoned and the reference to the

date on which the determination is communicated to

the parties shall, in a case where such an appeal is

abandoned, be construed as a reference to the date of

its abandonment.

(2) The Circuit Court may, in an order under this section

relating to the payment of compensation, if in all the

circumstances it considers it appropriate to do so, direct the

employer to pay to the employee interest on the compensation, at

the rate referred to in section 22 of the Courts Act 1981, in respect

of the whole or any part of the period beginning 6 weeks after the

date on which the determination of the Labour Court is

communicated to the parties and ending on the date of the order.

(3) An application under this section to the Circuit Court shall

be made to the judge of the Circuit Court for the circuit in which

the employer ordinarily resides or carries on any profession, trade,

business or occupation.

8I.—A document purporting to be signed by the chairman or a

vice-chairman of the Labour Court stating that—

(a) a person named in the document was, by a notice under

section 20 required to attend before the Labour Court

on a day and at a time and place specified in the

document, to give evidence or produce a document,

(b) a sitting of the Labour Court was held on that day and at

that time and place, and the person did not attend

before the Labour Court in pursuance of the notice or,

as the case may be, having so attended, refused to give

evidence or refused or wilfully failed to produce the

document, shall, in a prosecution of the person under

section 20, be evidence of the matters so stated without

further proof.

8J.—References in this Part to an employer shall be construed,

in a case where ownership of the business of the employer

changes after the contravention to which the complaint relates

occurred, as references to the person who, by virtue of the change,

becomes entitled to ownership of the business.

8K.—(1) A person who makes a disclosure which the person

knows or reasonably ought to know to be false is guilty of an

offence.

(2) A person guilty of an offence under this section is liable:

(a) on summary conviction, to a fine not exceeding €5,000

or to imprisonment for a term not exceeding 12 months

or to both,

(b) on conviction on indictment, to a fine not exceeding

€50,000 or to imprisonment for a term not exceeding 3

years or to both.

(3) Notwithstanding section 10(4) of the Petty Sessions (Ireland)

Act 1851, summary proceedings for an offence under this Act

may be instituted within 2 years from the date on which the

offence was committed or, if later, 2 years from the date on which

evidence that, in the opinion of a member of the Garda Síochána,

is sufficient to justify the bringing of the proceedings.

(4) For the purposes of subsection (3) of this section, a

certificate signed by a Superintendent of the Garda Síochána as to

the date on which the evidence referred to in that subsection

relating to the offence concerned came to his or her knowledge is

prima facie evidence thereof and in any legal proceedings a

document purporting to be a certificate issued for the purpose of

this subsection and to be so signed is deemed to be so signed and

shall be admitted as evidence without proof of the signature of the

Superintendent purporting to sign the certificate.".

This amendment proposes to replace the existing new section 8A, which is referred to in section 4 of this Bill as being inserted into the Prevention of Corruption Act 2001. The provision in the Bill before the House essentially applies to public officials, and it is by way of a form of whistleblower's provision to allow for public officials in certain circumstances to blow the whistle on criminal and bad behaviour.

The difficulty is that the provision contained in the Bill does not go far enough. In Fine Gael's view there is a need for a far wider and broader provision. In that context we have tabled a very substantial amendment, which will appear in the formal Dáil record of debates. However, I shall refer to part of the substance of what is being proposed. We are proposing new sections, 8A and 8B. The kernel of the amendment is in the provisions in the new section 8B, to be included in the 2001 Act. It reads:

8B.—Where an employee makes, in good faith and not for

personal gain, a disclosure to an authorised person and the

employee has reasonable grounds for believing that it will show

one or more of the following:

(a) that a criminal offence has been committed, is being

committed, or is likely to be committed;

(b) that a person has failed, is failing or is likely to fail to

comply with any legal obligation to which he is subject;

(c) that a miscarriage of justice has occurred, is occurring or

is likely to occur;

[No. 34a of 2008] [15 November, 2010]

Interpretation.

(d) that the health and safety of any individual has been, is

being or is likely to be endangered;

(e) that the environment has been, is being or is likely to be

damaged;

(f) that there is conduct which has led, is leading or is likely

to lead to a misuse or substantial waste of public funds;

(g) that there is conduct leading to concern about

questionable accounting, internal controls or auditing

matters;

(h) that the health or welfare of a person who is receiving a

health or personal social service has been, is or is likely

to be at risk;

(i) that the actions of any person employed has posed, is

posing or is likely to pose a risk to the health or welfare

of the public;

(j) that the information tending to show any matter falling

within any one of the preceding paragraphs has been, is

likely to be deliberately concealed or destroyed;

then disclosure shall be a protected disclosure under this Act.

Essentially, this is designed to ensure that where a protected disclosure is made, an individual cannot be prosecuted or dismissed. Where an employer attempts to dismiss an individual, there are appropriate remedies available to him or her and appropriate compensation can be ordered.

The new sections 8C and 8D, which are of relevance also, read:

8C.—Notwithstanding anything in the Official Secrets Act 1963

a disclosure of information to which section 15 relates shall be a

protected disclosure if the employee makes the disclosure in

accordance with section 17.

8D.—(1) A qualifying disclosure is made in accordance with

this section if the worker—

(a) makes the disclosure in good faith to a person prescribed

by Regulation made by the Minister for Finance for the

purposes of this section, and

(b) reasonably believes—

(i) that the relevant disclosure falls within any

description of matters in respect of which that

person is so prescribed, and

(ii) that the information disclosed, and any allegation

contained in it, are substantially true.

These are extremely important provisions and it is particularly appropriate that on this, of all days, this Bill comes before the House and these issues are being debated.

These are extremely important provisions. It is particularly appropriate that on this day of all days this Bill comes before this House and these issues are being debated. I want to give a very stark illustration of the possible use of this provision and how it might have been used in the past in the public good and to the benefit of the State and everyone living here.

Under existing law, if, three or four years ago, an employee of Anglo Irish Bank blew the whistle on some of the exotic conduct of the board of that bank and those in managerial positions at the bank, that employee could have been subject to dismissal. The dismissal would have been regarded as fair, the individual would have had no right to compensation and, indeed, in certain circumstances, could have found himself or herself at risk of criminal prosecution. To this day, we do not have adequate legislation to deal with and address the need for the protection of individuals who want to blow the whistle on what they see as corrupt and bad behaviour within the businesses in which they are employed, be they in a junior or senior position. The provisions in the measure before us deal essentially with public officials at governmental or European level. They do not deal with the protections that should be available in other circumstances to ensure that certain ethical standards are met, laws are complied with and where there is illegal conduct, the whistle is blown and action is taken. People who are whistleblowers should not be confronted with the dilemma of staying quiet and remaining in employment or blowing the whistle and becoming unemployed and, possibly because of the strength of the corporation in which they are employed, being portrayed as either nut cases or pariahs within society.

We could all in this House name some individuals who we are aware of who attempted to blow the whistle on events in recent years, but whose whistleblowing was ignored and they found themselves out in the cold as a consequence of their conduct. It is extraordinary that to this very day our legislation in this area is grossly inadequate. As a matter of principle, I, and the Fine Gael Party, welcome the fact that the House is now dealing with Report Stage of this Prevention of Corruption (Amendment) Bill 2008 and that the Bill is on the verge of being completed. As the Bill was published in 2008, it cannot be described as having been given priority or of being speedily processed through the House. I deplore the fact that we are not addressing issues more extensively in this area that deserved to be addressed. There is more than one elephant in this particular room.

I am being careful in what I say because I am very conscious that there is more information that could be put on the record of this House that might be utilised by those who are currently the subject of investigation to try to avoid having to face the full rigors of the law should any prosecution ever be taken. Our law in this area is not adequate. This Bill does not provide the comprehensive legal change that is required. This particular amendment - I am conscious we are on Report Stage and not Second Stage - is designed to address some of the issues that require to be addressed in our legislation to deal with the issue of whistleblowing, to provide protection to those who act in good faith on the basis of information made available to them and who seek to facilitate the investigation into alleged criminal conduct in circumstances in which at present it may not merely be difficult for them to do so, but may result in their loss of employment and being rendered one of the 450,000 individuals who are currently unemployed in our State.

This is an important amendment. It was also canvassed on Committee Stage on behalf of Fine Gael, but it was not taken on board by the Minister. I note the Minister is, in some of the amendments we are discussing that are within the confines of this Bill, trying to tidy up some aspects of the Bill. Knowing what we now know and being where we now are and aware of some of the extraordinary conduct within our financial institutions, there is an urgent public need to go beyond those operating as public servants and to comprehensively extend our law in this area with regard to whistleblowing. What we need is one particular statute, a consolidated statute, dealing with corruption and criminal offences relating to it and protecting whistleblowers as opposed to piecemeal legislation contained in a number of Acts going back now over 100 years, which makes the law difficult to tease out and understand for many who seek to ascertain where it is.

I have no optimism that this amendment will be accepted by the Minister. It is the Minister's form to reject every amendment that comes from the Opposition side of the House on every piece of legislation over which he has control. However, the amendment has been tabled in the public interest. There is a public interest priority and need that legislation such as proposed in this amendment be enacted and prioritised.

Pat Rabbitte (Dublin South West, Labour)
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I prepared a Bill on this issue. I commend Deputy Shatter for the time he has taken in constructing amendment No. 1. I intend to move amendments Nos. 2 and 3 when we reach them, while accepting that they are being discussed now, as part of a group, with amendment No. 1.

I was disappointed when the Government voted initially to accept my Bill, which subsequently died on Committee Stage, proving the Government was no more amenable to the Bill at that Stage than it was on the first occasion. We badly need reform in our society in the form of protection for whistleblowers. Following everything we have seen during the past four years, I would have thought it plain to everyone and common ground in the House that we need protection for whistleblowers, and not on a sectoral or segmented basis.

We all know what happened during the beef tribunal. The witch hunt was to find out who leaked information about the skullduggery and tax evasion going on at that time in the Goodman empire. We recently witnessed, in respect of Allied Irish Banks, what happens to whistleblowers. The whistleblower usually ends up outside the employment, with little enough regard had to the loss to the public interest of acting on whistleblower information and protecting the whistleblower when that information is brought into the public domain.

Our Exchequer retrieved just over €1 billion as a result of the DIRT inquiry and it is believed that came into the public domain because of an internal employee in Allied Irish Banks. That was the suspicion. More attention was devoted to that than what he had to say about wrongdoing, yet because this House, exceptionally, acted on it and caused a committee of the House to inquire into it, which retrieved more than €1 billion for the State, the reaction of the House since has been to sit idly by while inquiry by parliamentary committee has been struck down. It has done nothing to refurbish the law. The result is a loss of autonomy to the House and gradual erosion of the powers of Parliament vis-á-vis the Executive. The Government has acquiesced in that, because without its approval, Opposition Members do not have the numbers to refurbish the law.

Amendment No. 2 proposes the insertion of the words "or suspicion" because the reality of the world in corporate Ireland is the person may not be able to establish more than that it is a suspicion and sometimes the issues are so big that it is for others to establish if that suspicion is well founded. To expect someone to come out of the system and prove something or simply to do something because they are of a opinion is not good enough. The purpose of my amendment, which is to protect the reporting of suspicion as well as opinion, is necessary in this particular Bill.

Amendment No. 3 proposes the deletion of the words "has been or is being" and the replacement with "may have been or may be being". The purpose of the amendment is to widen the circumstances in which protection is afforded to whistleblowers because, as drafted, the new section 8A only provides protection for persons who report an opinion that an offence definitely has been or definitely is being committed. This should be widened to cover a situation where a person reports a suspicion as opposed to a definite opinion. Given all the skullduggery and wrongdoing we have seen in corporate Ireland - to our greatest cost within the banking system - a necessary and essential reinforcement of this Bill would be to take on board that concept.

Most people do not believe we could have reached the stage we have reached this evening and they ask fundamental, straightforward questions about how all this could have gone on in the banks with nobody blowing the whistle. The answer is that if a person were to blow the whistle, he or she would have lost his or her employment. That is the reality, yet we are in a situation now where, notwithstanding the debate we have just heard, this country's economic sovereignty is at risk because of the behaviour and reckless conduct, if not criminality, of the banks. That is why we are where we are. We do not know what will come out of tonight, we do know what is going to come out of tomorrow and it is plain that the Government does not know but everything for which people fought in this country is at risk now because of misbehaviour, wrongdoing and reckless conduct in the banking system.

What is the point in us condemning this and the Minister saying he will agree with us about the banks if we do not take steps to prevent this ever happening again? We have one slight Bill before us. Our anti-corruption laws, even to comply with our international responsibilities, are not up to speed. It is still only a slight Bill but it would be strengthened if the Minister was prepared to take on board these amendments. If the Minister for Finance, for example, is successful this evening, he will return tomorrow evening like Chamberlain waving a piece of paper in his hand saying "Peace in our time. We've got a bailout for the banks." That is yet another bailout for the banks but the reality is that will have the most onerous implications for our society and for our economy, whether he can separate the banks from the international perception that this is all sovereign debt now because of the guarantee and one cannot separate one from the other and one can provide financial assistance only to a member state, not to a bank.

If the member state wants to put it into a bank, that might be capable of being negotiated but how did this harm befall us? How did we all let one small casino bank grow like Topsy until it threatened the entire banking system? When The New York Times asked "Can a bank bring down a country?", it was sneered at in circles in this House and outside but that is exactly the situation we are tottering on this evening. A bank can bring down a country and, therefore, if there is not intent on the part of the Government to refurbish the legislation so that this kind of reckless misconduct cannot happen again, why are we here? We must be able to take measures to ensure that, while not stifling business and entrepreneurship, plain wrongdoing or suspicion of wrongdoing can be brought to the attention of the relevant authority without the person bringing it being put at risk of his or her employment. I ask the Minister to make a positive response to the amendments.

Dermot Ahern (Louth, Fianna Fail)
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We discussed amendment No. 1 on Committee Stage and I outlined Government policy regarding the protection in law for persons making reports in good faith. Previous mention was made of the corruption laws in our country. Significant anti-corruption legislation is on our Statute Book. The Prevention of Corruption Acts, 1889 to 2005, relate to this area. I indicated that I have asked my officials to produce consolidated legislation, once this Bill is passed, containing all provisions relating to corruption.

The principal purpose of the legislation is to ensure compliance by Ireland with the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. However, it should be pointed out that whistleblower protection provisions in this Bill are not confined to bribery of foreign public officials and apply to any person reporting his or her opinion that an offence under the Prevention of Corruption Acts has been committed. The Bill is quite extensive in its scope and its provisions are applicable to a wide variety of persons as set out in the Prevention of Corruption Act 2001. The anti-corruption legislation we have covers any person employed by or on behalf of another, or any person employed by or acting on behalf of the public administration of the State.

There are ongoing issues relating to the investigation of what went wrong in Anglo Irish Bank and I assure the Deputies that I understand from discussions with the Garda Commissioner and the Garda Síochána that existing legislation is sufficient in respect of any criminality that may have occurred in that instance. Clearly that is yet to be decided. With regard to this piece of legislation, a person employed in either the public or private sector who suspects an offence under the prevention of corruption legislation is being committed and reports that submission will be protected. The communication must be made in good faith and not be frivolous, vexatious, intentionally false or misleading.

The protection afforded is two-fold. First, a person will have no liability in damages arising from that communication and, second, if a whistleblower makes or wishes to make a report in confidence, he or she may do so. The provisions in this Bill have been drafted with the intention of ensuring protection for the whistleblower. They clarify the rights of redress open to an individual who may be penalised by an employer for reporting a corruption offence. In drafting this measure, it is my intention that whistleblowers with a genuine belief that a corruption offence is taking place should be given every encouragement to report that opinion to an appropriate person. It is my intention that the full protection of the law should be available to these people.

Deputy Shatter proposes to provide in this Bill whistleblower protection for a broad and diverse range of issues and sectors, whereas the purpose of the Bill as discussed today is to afford protection to whistleblowers reporting suspected corruption offences. The amendment as it stands does not relate only to offences contained in the Bill but proposes to protect disclosures in a wide variety of circumstances unconnected with corruption offences. His amendment addresses matters as diverse as health and safety, auditing, miscarriages of justice, environmental damage and much more. These are not the issues under consideration with this Bill, as I indicated on Committee Stage when this amendment was proposed.

As Members will know, it has been Government policy for some time to deal with the issue of protection for whistleblowers on a sectoral basis rather than on an omnibus basis. This is a very firm commitment reflected in a wide variety of Bills. Deputy Shatter's amendment and the Private Members' Bill published previously by Deputy Shatter assumed that a single all-encompassing whistleblower provision is the best way to proceed. I have already set out in a parliamentary question today to Deputy Varadkar how the matter was considered by the Government a number of years ago, with certain legal obstacles identified which indicated that the application of whistleblowers' protection within a single statute would not be effective in the variety of circumstances in which it would apply. The Government does not want to introduce whistleblower protection which, if tested in the courts, might be found wanting. What is needed are solutions that will work well in the particular circumstances of each case. That is ultimately why, on balance, it became clear that a sectoral approach to the issue would be more effective and efficient.

A wide range of Bills have already been passed by this House with whistleblower provisions specific to those particular areas. These include the Protections for Persons Reporting Child Abuse Act 1998, the Competition Act 2002, the Safety, Health and Welfare at Work Act 2005, the Garda Síochána Act 2005, the Employment Permits Act 2006, the Health Act 2007, the Communications Regulation (Amendment) Act 2007, the Consumer Protection Act 2007, the Medical Practitioners Act 2007, the Chemicals Act 2008, the Labour Services (Amendment) Act 2009, the National Asset Management Agency Act 2009, the Charities Act 2009, and the Inland Fisheries Act 2010. In addition, a number of Bills currently in preparation contain whistleblower protections, including the Employment Agency Regulation Bill 2009, the Local Government (Mayor and Regional Authority of Dublin) Bill 2010, the Employment Law Compliance Bill 2008, the Property Services (Regulation) Bill 2009 and the Bill being considered by the House today, all of which contain similar protections specific to certain areas.

The Garda Síochána Act has particular whistleblower protection and provisions relevant to the area but it is more comprehensive; it may not necessarily be applicable in other areas. The way whistleblowing in the Garda Síochána Act is framed with the independent person is very different from whistleblowing provisions in other pieces of legislation. The issue is better because it is tailored. On the advice of the Attorney General, the Government decided to deal with whistleblowing on a case by case basis rather than dealing with an all-encompassing piece of legislation as proposed by Deputy Rabbitte.

Amendment Nos. 2 and 3 from Deputy Rabbitte provide for the insertion of the words "or suspicion" after the word "opinion" into section 8A(1) of the 2001 Act, and the substitution of "may have been or may be being" for the existing wording of "has been or is being" thereafter. As I stated in the course of the debate on Committee Stage, the advice which I received was to the effect that an opinion can be founded on a belief, which would encompass actual knowledge or suspicion. Given that an opinion can be founded on a suspicion, my advice was that the addition of the word "suspicion" was not required. Accordingly, it is considered that the addition of the words in the amendment would not actually broaden the existing meaning of the provision nor would the amendment assist in further clarifying the test which would determine whether the protection under this measure for a person making reports in good faith would apply.

Deputy Rabbitte will recall the official amendment to this section which was agreed on Committee Stage. The earlier test required before the whistleblower could be afforded protection against civil liability under this section was simply whether he or she had acted "reasonably and in good faith" in forming the opinion and communicating it to the appropriate person. On Committee Stage, further tests were introduced, which were agreed by the committee, which must be passed before the potential whistleblower obtains protection from liability in damages under this provision.

The section provides that the whistleblower is not liable in damages or other forms of relief unless when communicating the opinion regarding an offence under the legislation providing he or she did so not knowing or being reckless as to whether the view was false, misleading, frivolous, vexatious or giving information that the person knew to be false or misleading. In this section I am endeavouring to secure a reasonable balance in encouraging whistleblowers to come forward and protecting their rights while also paying due regard to the rights and entitlements of the person subject to the whistleblower's report. Taking all the factors into account I am of the view that the existing text, providing protection for reports in respect of an offence which has been or is being committed, is the best wording and is likely to be the most effective.

I am proposing amendment No. 21. As I mentioned on Committee Stage, my Department received observations from An Garda Síochána which raised certain issues about the implications of attempting to provide for absolute confidentiality in the context of investigation of certain cases where the whistleblower could come forward to expose corruption. As the Bill stands, there is a reference to the Garda Commissioner disclosing the identity of a confidential communicator for the purpose of investigating the alleged offence but not for the purpose of prosecuting the offence. The provisions of the Bill as it stands might have been interpreted in a way which would have hampered disclosure of the identity of the whistleblower to the DPP. Such disclosure by the Garda Commissioner might be necessary to enable the alleged offence to be investigated and prosecuted.

The amendments to Schedule 2 will allow for limited disclosure of the whistleblower's identity where the Garda Commissioner is satisfied that disclosure to a member of the Garda or a civilian staff member or the DPP is necessary for the investigation or prosecution of the alleged offence. In proposing this amendment, I assure the House that I have considered the matter very carefully in light of the concerns raised by the Garda and the advice of the Attorney General. I am eager to ensure that the rights and entitlements of all the parties involved are given due weight. My aim is to provide the requisite level of protection for whistleblowers while ensuring that those who engage in corruption can be successfully brought to book for their actions.

While we had a good discussion in this regard on Committee Stage, I cannot accept amendments Nos. 1 to 4, inclusive. I repeat the general point that the Government decided a number of years ago to deal with these issues on an issue-by-issue basis. The record speaks for itself in regard to the address of these issues in the many pieces of legislation that are being and have been drafted and passed by this House and which are specific to those particular areas.

Charlie O'Connor (Dublin South West, Fianna Fail)
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To be helpful, the Minister referred to amendments Nos. 1 to 4, inclusive. I presume he meant Nos. 1 to 3, inclusive, as amendment No. 4 is his own amendment.

Dermot Ahern (Louth, Fianna Fail)
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That is correct. Amendments Nos. 4 and 21 are my amendments.

Alan Shatter (Dublin South, Fine Gael)
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The difficulty with this Bill is that the things a whistleblower could do are constrained. The Government was wrong to have adopted a policy to provide legislation in regard to whistleblowers in, as the Minister puts it, a sectoral context rather than a global context. A global piece of legislation could have been drafted which contained within it, for example, specific exceptions that might have been necessary regarding the manner in which the Garda Síochána needs to conduct investigations.

I was interested to note the Minister's reference to the 1998 Act which provided protection for those who in good faith reported child abuse. That was the first Act dealing with whistleblowers and it was introduced by me in this House as a Private Members' Bill. It remains today of particular importance in the area of child abuse. It is noteworthy that the manner in which the current Fianna Fáil-Green Government deals with Opposition Bills, such as that published today, would make it impossible to have such Bills enacted, just as Deputy Rabbitte's very excellent Bill dealing with whistleblowers has found itself lost in some sort of legislative black hole because of the Government's approach to it. The Government, which did not have the courage to vote it down, just sent it off to a committee controlled by Fianna Fáil to let it languish.

I want to make one point only. Among the issues the amendment I have tabled covers is to allow someone to act as a whistleblower where the person is aware of "conduct which has led, is leading or is likely to lead to a misuse or substantial waste of public funds". That conduct may not be corruption within the narrow confines of the criminal law as is defined in our corruption Acts but it is conduct that has been all too prevalent and has cost this State a huge amount.

For example, if someone in FÁS had blown the whistle a long time ago, how much money would have been saved for the taxpayer? One can argue whether what happened in FÁS was corruption in a criminal context or simply mismanagement and maladministration. However, if there is substantial maladministration within a public body where hundreds of thousands of euro of taxpayers' money is disappearing down the toilet, an employee of that body should be able to blow the whistle, know their job is protected and instigate by their conduct an appropriate investigation and accountability for the loss.

What the Minister will vote against today is allowing for whistleblowing in that type of circumstance. The sectoral approach has proved to be grossly and totally inadequate with every new revelation of misuse of funds by State agencies and bodies that is discovered and addressed within the Committee of Public Accounts or by the Comptroller and Auditor General. We need a better and more rigorous law in this area.

Pat Rabbitte (Dublin South West, Labour)
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The Minister made reference to a letter he wrote to Deputy Varadkar.

Dermot Ahern (Louth, Fianna Fail)
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It was a parliamentary question.

Pat Rabbitte (Dublin South West, Labour)
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I look forward to seeing the reply. I believe it was 1999 when I introduced my Whistleblowers Protection Bill. I never had explained to me or I never received any letter from the Minister stating why the advice from the Attorney General was to the effect that there were legal impediments in the way of a general whistleblowers protection Act and that the Government had resolved on a sectoral approach. I have never understood this and I do not know why we would be reluctant in this regard, given the careful manner in which it is framed, whereby a person giving false, mischievous, vexatious or frivolous information exposes himself or herself to committing an offence. I do not know why we cannot do it or are not doing it.

Deputy Shatter has given explicit examples. He did not touch on, for example, the entire area of the hospital system, which is familiar to the Acting Chairman. It is not just that millions of euro of taxpayers' money might have been saved if we had whistleblower protection but perhaps a great deal of pain and anguish for so many people in our hospitals would have been prevented if conscientious people working in the hospitals felt their employment was protected in the context of bringing misconduct or dereliction of duty to the attention of the relevant authority.

This seems to be the last opportunity we will have to import this into a Bill that would have general application. I had hoped the Minister would have agreed to do so.

Dermot Ahern (Louth, Fianna Fail)
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As I said earlier and also when we discussed this previously, I have no doubt predecessors of mine indicated why the Government had decided, based on the strong advice of the Attorney General, that a much more robust way of dealing with whistleblower protection was by doing it on a sectoral basis in order to tailor it to the circumstances that pertain in the particular area. There is no doubt there is existing and substantial legislation in the area of corruption and its prosecution. What we are endeavouring to do here, as is clear under the existing 2001 legislation, is to ensure the provisions on whistleblowing, particularly those added to by this Bill, create a situation where any official, public or private, who complies with the law in regard to good faith can make a report. To a certain extent, the Deputies are exaggerating in regard to some of the specific issues that have arisen.

With regard to amendment No. 4, we propose to remove the words "ought reasonably to know". This, in effect, reduces the test for knowingly making a false report to an objective test so that it depends now on what a whistleblower actually knew, not what they subjectively could be expected to have known. I propose the amendment.

Charlie O'Connor (Dublin South West, Fianna Fail)
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I call Deputy Shatter for a final contribution.

Alan Shatter (Dublin South, Fine Gael)
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I have nothing to add.

Charlie O'Connor (Dublin South West, Fianna Fail)
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As a result of the decision on amendment No. 1, amendments Nos. 2 and 3, in the name of Deputy Pat Rabbitte, cannot now be moved. Is the Deputy happy with that?

Pat Rabbitte (Dublin South West, Labour)
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Yes, thank you.

Dermot Ahern (Louth, Fianna Fail)
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I move amendment No. 4:

In page 5, lines 40 and 41, to delete ", or ought reasonably to know,".

Pat Rabbitte (Dublin South West, Labour)
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I move amendment No. 5:

In page 5, line 42, to delete "has committed or is" and substitute "may have committed or may be".

I explained in the earlier group of amendments the reasoning behind amendments Nos. 5 and 7, and I do not intend to take up the time of the House further with it.

Dermot Ahern (Louth, Fianna Fail)
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The effect of the amendments would be that protection from liability for damages or other form of relief would apply to persons making reports in good faith that were founded on a suspicion that an offence was being committed, in addition to the existing wording, which applies to an opinion. As I already said, I believe the opinion itself encompasses the issue of suspicion. We did discuss this earlier.

Charlie O'Connor (Dublin South West, Fianna Fail)
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Amendment No. 6 arises out of Committee Stage proceedings. Nos. 6, 8 and 9 are related and may be discussed together.

Dermot Ahern (Louth, Fianna Fail)
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I move amendment No. 6:

In page 6, to delete lines 6 to 8 and substitute the following:

"(5) An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for---".

Amendments Nos. 6, 8 and 9 relate to penalisation of an employee for making a report of a suspected corruption offence. Section 4 inserts section 8A into the Prevention of Corruption (Amendment) Act 2001, and subsection (5) of this section, which relates to penalisation or threatened penalisation by an employer or a person acting on the employer's behalf, prohibits such action against an employee as a result of his or her making a report in good faith of suspected corruption. Subsection (7) provides that an employer contravening this provision is guilty of an offence, and the purpose of amendment No. 6 is to ensure that as well as action taken directly by the employer, the offence at subsection (7) will encompass actions carried out by a third party as a result of the employer's causing or permitting another person to penalise or threaten penalisation of the employee.

Amendment No. 8 affects subsection (15)(a), which provides that the term "penalisation" will not be construed in a way that prevents the employer from ensuring that his or her business is carried on in an efficient manner. The amendment provides for the deletion of the words "and effective". I am advised that this term was so broad that it would be difficult to apply in practice in an employment context. Deputies will also note the provision in subsection (15)(b) whereby the term "penalisation" cannot be construed in a way that would prevent the employer from taking any action required for economic, technical or organisational reasons.

Amendment No. 9 is a drafting amendment which clarifies that "penalisation" means the specified acts as listed in the definition of this term, whether they are carried out by an employer or by a person acting on behalf of the employer. I commend these amendments to the House.

Dermot Ahern (Louth, Fianna Fail)
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I move amendment No. 8:

In page 8, line 14, to delete "and effective".

Dermot Ahern (Louth, Fianna Fail)
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I move amendment No. 9:

In page 9, line 25, after "or" to insert "by".

Charlie O'Connor (Dublin South West, Fianna Fail)
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Amendment No. 10 arises out of Committee Stage proceedings. Amendments Nos. 10 and 11 are related and may be discussed together.

Dermot Ahern (Louth, Fianna Fail)
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I move amendment No. 10:

In page 11, line 9, to delete "his or her parent or guardian" and substitute the following:

"the employee's parent or guardian with his or her consent".

Schedule 1 of the Bill provides redress for compensation and a mechanism for complaints to a rights commissioner for an employee who may have been penalised or threatened with penalisation by an employer as a result of having made a report to an appropriate person, containing his or her opinion of a suspected corruption offence. The purpose of these amendments, which are of a drafting nature, is to provide clarity that where an employee has not reached the age of 18, his or her parent or guardian may present a complaint to the rights commissioner on that employee's behalf. Amendment No. 10 affords a more precise wording in setting out that in respect of an employee under 18 years of age, the employee's parent or guardian can, with his or her consent, present a complaint to the rights commissioner on that employee's behalf. Amendment No. 11, which again is a drafting amendment, substitutes "the employee" for "his or her" to improve clarity of meaning.

Dermot Ahern (Louth, Fianna Fail)
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I move amendment No. 11:

In page 11, line 12, to delete "his or her" and substitute "the employee's".

Acting Chairman (Deputy Charlie O'Connor:

Amendments Nos. 12 to 14, inclusive, are related and may be discussed together by agreement.

Dermot Ahern (Louth, Fianna Fail)
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I move amendment No. 12:

In page 11, to delete lines 27 to 32 and substitute the following:

"(b) require the employer to take a specified course of action, which may include, in a case where the penalisation constitutes a dismissal within the meaning of section 8A(13), re-instatement or re-engagement;".

Amendment No. 12 relates to Schedule 1 of the Bill, and paragraph (1) deals with redress for an employee, following a complaint to the rights commissioner in cases of penalisation or threats of penalisation to that employee. The amendment is essentially tidying up the drafting of subparagraph (3). The reference to compensation which was in clause (b) is unnecessary as compensation is provided for in clause (c), and the introductory line of subparagraph (3) makes it clear that a rights commissioner may order one or more of the reliefs specified in clauses (b) and (c). The new wording is in line with the approach being taken in the Employment Law Compliance Bill 2008.

While the amount of damages a rights commissioner may award under clause (c) is limited to 104 weeks of pay and calculated in accordance with the unfair dismissals regulations, paragraph 3(8) makes it clear that an employee who suffers penalisation must choose whether to seek redress under this Act, or whether to seek redress under the Unfair Dismissals Acts or for wrongful dismissal at common law.

Amendment No. 13 is a drafting amendment, required to enable insertion of the proposed new sub-paragraph (10) which relates to circumstances where there is a delay in making complaints by an employee. Under subparagraph (4), the period which the employee can make a complaint to a rights commissioner is six months, beginning on the date of the contravention to which the complaint relates. The proposed amendment No 14, inserts subparagraph 10, which provides that where a delay by an employee in presenting a complaint is due to a misrepresentation of his or her employer, then the six-month clock only runs from the date of the discovery of that misrepresentation by the employee. I believe this is more equitable and fairer to the employee.

Dermot Ahern (Louth, Fianna Fail)
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I move amendment No. 13:

In page 11, line 45, to delete "A rights" and substitute "Subject to subparagraph (10), a rights".

Dermot Ahern (Louth, Fianna Fail)
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I move amendment No. 14:

In page 12, between lines 20 and 21, to insert the following:

"(10) Where a delay by an employee in presenting a complaint under this paragraph is due to any misrepresentation by the employer, subparagraph (4) shall be construed as if the reference to the date of the contravention were a reference to the date on which the misrepresentation came to the employee's notice.".

Dermot Ahern (Louth, Fianna Fail)
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I move amendment No. 15:

In page 13, line 7, to delete "point" and substitute "question".

This is a minor drafting amendment, proposed on the advice of the Parliamentary Counsel, to reflect the usual terminology applied where the Labour Court may refer a question of law, rather than the existing wording which is a point of law, to the High Court for its determination. Subsection (6) remains unchanged, which permits parties before the Labour Court to appeal to the High Court from a determination of the Labour Court on a point of law.

Acting Chairman (Deputy Charlie O'Connor:

Amendments Nos. 16 to 19, inclusive, are related and may be discussed together by agreement.

Dermot Ahern (Louth, Fianna Fail)
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I move amendment No. 16:

In page 14, line 13, after "employee" to insert the following:

"(or, in the case of an employee who has not reached the age of 18 years, the employee's parent or guardian with his or her consent)".

As I mentioned earlier, section 6, inserting Schedule 1 of the Bill, contains a mechanism for complaints to a rights commissioner for employees who may have been threatened with penalisation, following the making by them of whistleblowers' reports as provided for under this Bill. There is also provision for parents or guardians of employees under the age of 18 to make a complaint to a rights commissioner on behalf of the employee, subject to getting that employee's consent to do so. The purpose of these amendments is to ensure there is specific provision for a young employee's parent or guardian to take proceedings on his or her behalf on the basis that he or she has given consent to this. There is provision for the institution of proceedings by a parent or guardian under the Unfair Dismissals Acts or to recover damages at common law for wrongful dismissal as provided under amendments Nos. 16 and 17.

Amendments Nos. 17 and 18 provide more precise wording to clarify respectively that the employee's parent or guardian cannot institute unfair dismissal proceedings or seek damages in common law in addition to making a complaint to the rights commissioner in subparagraph (8)(b). Amendment No. 19 reflects the previous amendments to clarify that the parent or guardian of an employee may, with his or her consent, apply to the Circuit Court for an order directing an employer to comply with a Labour Court determination.

Dermot Ahern (Louth, Fianna Fail)
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I move amendment No. 17:

In page 14, line 16, to delete "he or she" and substitute the following:

"the employee or his or her parent or guardian, as the case may be,".

Dermot Ahern (Louth, Fianna Fail)
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I move amendment No. 18:

In page 14, lines 20 and 21, to delete "his or her parent or guardian" and substitute the following:

"the employee's parent or guardian with his or her consent".

Dermot Ahern (Louth, Fianna Fail)
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I move amendment No. 19:

In page 14, line 37, to delete "his or her parent or guardian" and substitute the following:

"the employee's parent or guardian with his or her consent".

Dermot Ahern (Louth, Fianna Fail)
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I move amendment No. 20:

In page 15, to delete lines 5 and 6 and substitute the following:

"on the compensation (at the rate per annum standing specified for the time being in section 26 of the Debtors (Ireland) Act 1840) for each day or part of a day".

This is merely a technical amendment. As the Courts Act 1981 ultimately refers back to the Debtors (Ireland) Act 1840, this amendment results in a more direct reference to the effective provision where the interest rate is actually set.

Dermot Ahern (Louth, Fianna Fail)
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I move amendment No. 21:

In page 16, to delete lines 32 to 44 and in page 17, to delete lines 1 to 33 and substitute the following:

"6. (1) Where a confidential communication has been made to a confidential recipient, the recipient may disclose the identity of the confidential communicator to the Commissioner only if each one of the following provisions is complied with:

(a) the Commissioner—

(i) must be satisfied that knowledge of the identity of the communicator is necessary for the proper examination of the communication or the investigation of the alleged relevant offence;

(ii) must inform the recipient of his or her reasons for being so satisfied;

(b) the recipient must be satisfied that the Commissioner, before informing the recipient under clause (a)(ii), has taken all practicable steps to advance the examination of the communication or the investigation of the alleged relevant offence;

(c) the recipient must have informed the communicator of the situation and considered the communicator's views regarding the disclosure of his or her identity; and

(d) the recipient must further be satisfied that, having regard to all the circumstances, the disclosure is necessary for the proper examination of the communication or the investigation of the alleged relevant offence.

(2) Where a confidential communication has been transmitted to the Commissioner pursuant to paragraph 4, the identity of the confidential communicator may be disclosed by the Commissioner to—

(a) a member,

(b) a civilian, or

(c) the Director of Public Prosecutions,

only where the Commissioner is satisfied that the disclosure is necessary for the proper examination of the communication or the investigation or prosecution of the alleged relevant offence.

(3) Subject to subparagraph (4), any member or civilian to whom the identity of a confidential communicator has been disclosed under subparagraph (2) may not disclose the identity to any other person without the authorisation in writing of the Commissioner.

(4) The Commissioner may give an authorisation referred to in subparagraph (3) only where he or she is satisfied that it is necessary for the proper examination of the confidential communication or the investigation or prosecution of the alleged relevant offence.

(5) Unless otherwise authorised under this paragraph, a confidential recipient, a member, or a civilian, to whom the identity of a confidential communicator has been disclosed may disclose the identity only with consent in writing of the confidential communicator or under an order of a court.".".

Pat Rabbitte (Dublin South West, Labour)
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I wish to refresh my memory on Schedule 1. Amendment No. 12 excised lines 27 to 32 and replaced them with a different wording resulting in reinstatement in the job or re-engagement being one of the remedies open in those circumstances. What is the difference between that and the provisions of the Unfair Dismissals Act? Is it the employee or the person concerned who would make the choice as to whether he or she would take the route specified in this Bill or that specified in the Unfair Dismissals Act?

Dermot Ahern (Louth, Fianna Fail)
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Obviously, it is the employee's right to choose either.