Mairead Farrell (Galway West, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

It is great we are talking about protected disclosures again. Indeed it is a very topical issue. We have seen reports recently in the Irish Examinerin regard to reported problems in the Matt Talbot Adolescent Services, MTAS, in Cork. It reported that the HSE commissioned a major review of the operations on foot of a number of protected disclosures. From that it is my understanding that the review was conducted by two external social care consultants but that their final report was not published. Some concerns were that it could have been too damning. One of the issues arising out of this which I am interested in with regard to the Protected Disclosures (Amendment) Bill was that one of the women who reportedly made that protected disclosure had been made redundant. This is something that arose out of that and about which I have been questioned. Will the Minister advise, in respect of a hearing of a person who fights and awaits a hearing before the Workplace Relations Commission, WRC ,or the Labour Court, whether, if the new Bill is enacted, that hearing then will take place under the new protected disclosures regime? In the case of an action submitted before the new Bill has been enacted, will the hearing be under the old law?

Michael McGrath (Cork South Central, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

I thank the Deputies for raising this issue and for their contribution to the Second Stage debate on the Protected Disclosures (Amendment) Bill yesterday in the House. I look forward to working with them in a spirit of co-operation, as I said yesterday, on the passage of this Bill over the months ahead. Many of the issues they raised this morning are the very issues we need to tease out in considerable detail on Committee and Report Stages. We in this House can all agree on the importance of protecting whistleblowers. We all recognise fully the vital role they play in a democratic society. We are all aware of individual cases in recent years where people who have had the courage to speak up have unfortunately paid a personal price.

While the existing Act served, and continues to serve, a purpose, it is an Act of its time. It is now eight years old and we have to accept that we have learned a considerable amount from our experience of the operation of the Act over the last eight years. I reassure the Deputies that not only are we using this Bill to transpose the EU directive but that we are also seeking to go further. We are taking the opportunity presented by this Bill to improve and modernise our regime for protected disclosures and to centrally improve protections for whistleblowers.

The Bill goes much further than our existing legislation. For example, it significantly widens the range of persons entitled to protection for speaking up to include volunteers, shareholders, board members and job applicants. It will require many employers to establish formal channels and procedures for their workers to report concerns about wrongdoing. It requires recipients of disclosures to take highly specific steps within clear timelines to follow up on the reports they receive. Those steps are not laid out in the current Act. When enacted, the new Bill will place clear obligations on those who are receiving these protected disclosures as to the steps they must take and when those steps must be taken. Fundamentally, the Bill provides for the reversal of the burden of proof. Employers will have to prove that the alleged act of penalisation was not undertaken because the worker made a protected disclosure. That is a very significant shift in position that I believe will prove to be incredibly helpful over the period ahead. Offences relating to contraventions of the Act are also set out.

As I said, we are using this Bill to address issues that arose in the context of the operation of the existing Act. The Bill provides for the establishment of a protected disclosures commissioner, who will be the Ombudsman. The commissioner's officer will have three key roles, one of which will be to assist persons in making an external report to a prescribed person by directing them to the most appropriate prescribed person. With over 100 regulatory bodies currently designated as prescribed persons, it is not always clear to persons reporting which prescribed person they should report to. It will also receive all reports made to Ministers and transmit them to the most appropriate authority for assessment and follow-up. It will also act as a prescribed person of last resort and directly follow up on any reports where there is no prescribed person or other suitable authority competent to follow up on the matter reported.

I will now deal with two of the issues the Deputies have just raised. I read the report from the Oireachtas joint committee and we will have to carefully consider and tease out the issue of retrospective application. I am engaging with the Attorney General. I want to go as far as I possibly can to ensure the protections we are providing for in the new Bill will apply to those already in the system who have made protected disclosures. However, I need to tease that issue out on the basis of legal advice. I look forward to discussing that issue in detail. We will ensure that there is follow-through with regard to protected disclosures that are made, that there will be an end point, and that people will know where they stand at the end of the process.

Mairead Farrell (Galway West, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

It has been great to see everyone working very well together on this particular Bill. I look forward to seeing that continue on Committee Stage. It has been a really good example of how everyone in this House can work together. The whole issue of retrospective application will form a massive part of our debates in the committee. I understand that the Minister needs to get advice and that we will need to see how it works out. I hope it will be possible to apply the Bill retrospectively because many people have suffered greatly. I really look forward to teasing that out further and to hearing what the Minister gets back in that regard.

The reversal of the burden of proof has been a massive part of this. It will be of relief to many people in the future and to those who have previously blown the whistle to see this burden reversed. It is really fantastic.

Michael McGrath (Cork South Central, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

I will reiterate the point I made with regard to retrospective application. In passing legislation, it is always difficult to seek to have its impact made retrospective. We will take it as far as we possibly can. We will stretch the boundaries within the legal parameters that are there. That is why I am engaging with the Attorney General. I look forward to discussing the issue with the committee. I know that many whistleblowers who have made protected disclosures are looking to this Bill with hope. They see it as an opportunity to improve the outlook for them and to improve the outcome they are likely to get from the process.

It is important to highlight to people that there are already supports there, including the Transparency International Ireland helpline. That organisation has a very useful guide on its website to support whistleblowers. As the Deputies will know, there are provisions under the existing Act for taking a case to the Workplace Relations Commission, WRC. Under sections 12 and 13, any person who suffers any form of penalisation other than dismissal, for example, harassment, ostracism, transfer of duties, demotion and so on, can make a complaint to the WRC. Any person who has been dismissed can bring a case under section 11 of the Act. The WRC will examine each case in detail and on its own merits and, as the Deputies will know, it can make an award of up to five times the salary of the person concerned. There are existing protections there and it is important that we make that clear to people.

I accept that issues have arisen in the context of the existing legislation and that we need to improve upon these. I look forward to working with the Deputies opposite and all other colleagues in the House in that regard. My own agenda is to modernise the system of protected disclosures in Ireland and to extend protections to those who have the courage to speak up and call out wrongdoing to the greatest extent possible and to ensure they are supported. That is my singular agenda in bringing forward this Bill. I know that aim is shared by the Deputies opposite. I will work with them in a spirit of co-operation to make this Bill the best it can be.