Rónán Mullen (Independent)

I move amendment No. 3:

In page 5, lines 26 to 29, to delete all words from and including "misleading," in line 26 down to and including "vexatious," in line 29.

In many ways, what we have been discussing recently and what I am proposing concern different paths up the mountain. We want to achieve a culture of transparency in which people will not feel there will be a chilling effect in reporting their belief there has been corruption. The same motivation underlies Senator Bacik's amendments and mine.

We must recall the critical role played by whistleblowers in fighting corruption. PricewaterhouseCoopers estimates that some 40% of all cases of corruption and fraud are exposed by whistleblowers. Individuals such as Eugene McErlean at AIB and Sherron Watkins at Enron have in the course of their work reported concerns or evidence of wrongdoing or harm to others. It is important to remember they are motivated to do the right thing in the common good. That is what we are talking about in this debate. It is to fulfil international obligations that the Government has brought forward this legislation. It is important to remember that the role of whistleblowers has been recognised by the United Nations, the Council of Europe and the OECD. It is because these organisations place whistleblowing at the heart of a national strategy to prevent the abuse of power that we have this Bill. We need to be very careful, therefore, about what we include in and leave out of it.

I have not addressed the sectoral approach taken by the Government to whistleblowing, as addressed by other Senators. The approach is folly. We will be left with very diverse and confusing standards of protection for whistleblowers and significant gaps in legislation. Irrespective of whether one is talking about child abuse, corruption, fraud or mismanagement, it should be possible to identify certain principles that apply to all of these areas. It should be possible to identify whether allegations are made in good faith and establish a mechanism for people to report to an authority beyond their employer because of fear or possible intimidation by that employer or employees. One can pretend that the drafting of general legislation would cause problems, but I do not believe it would. The same principles generally apply to whistleblowing across the board. I refer to what whistleblowers need in order to do what they must do and the wider need of society to prevent the making of many vexatious, irresponsible, worrisome or unfounded claims. I am concerned the Bill will not protect individuals such as Eugene McErlean or a single whistleblower in our banks reporting fraud, overcharging or reckless dealing. It is remarkable, given what we have discussed incessantly in the past few months, that these issues remained unaddressed in this legislation. That is very noticeable and odd, to say the least.

The Bill will not hold unscrupulous employers to account for covering up wrongdoing of many shades other than what is prescribed in it. When one considers the penalty imposed on individuals such as Mr. Noel Wardick, a former director at the Irish Red Cross who drew attention to serious issues of mismanagement and a failure to discharge funds properly, one realises it is remarkable that we are not taking the opportunity this legislation presents to establish more general principles pertaining to whistleblowing. It is vital that we do so, bearing in mind that the Irish Red Cross almost has a statutory function and significant national responsibilities at certain times and in certain ways. It is a classic example of a case in which somebody feels the need to report beyond his or her employer and the Garda in order that the best interest of his or her organisation and the public would be served.

The amendments propose to delete the words "misleading", "frivolous" and "vexatious" such that the section would provide that a person would not be liable for damages, save where, in communicating his or her opinion to the appropriate authority, he or she knows his or her opinion to be false. Let me reassure the Minister and others in case there is any doubt. It is not that I have any sympathy for someone who knows what he or she is saying is in any way misleading, frivolous or vexatious. One must consider the two amendments together. We are not just talking about the person escaping liability in the courts but also about the circumstances in which a person might escape penalisation by his or her employer. I am worried that the legislation, as drafted, will lead to a chilling effect on potential whistleblowers. They may consider it may be said what they are doing is misleading or vexatious. I am uncomfortable with the subjectivity associated with these concepts. The test should be one of falsity. Transparency International has advised that it is highly unusual and worrying for a provision such as this to be inserted in such legislation. It believes the Bill, as presented, will silence potential whistleblowers.

The Bill provides that damages may be sought against an employee if what he or she reports is deemed to be reckless in the sense of being false, misleading, frivolous or vexatious. This type of provision is not included in any other whistleblower legislation, in Ireland or overseas. One must ask why anyone would come forward if he or she believed he or she could be penalised by his or her employer. That is the point that causes me particular concern. I refer to the raising of a concern that one's employer deems to be reckless, vexatious, frivolous or misleading. Even where an employee makes a genuine mistake in reporting, would it not be easy to brand the report as frivolous or reckless? Such mistakes are possible and may even be inevitable, but a whistleblower should not be punished according to such a subjective and unfair standard.

What constitutes reckless behaviour? Would a person mistakenly reporting a concern of corruption to a non-designated body such as the Standards in Public Office Commission or the Office of the Comptroller and Auditor General be deemed to be reckless? The standard runs contrary to the common law principle of good faith, which implies a person believes the substance of the report to be true and does not act maliciously. Would that not be a better standard to apply? The good faith principle is at the heart of the United Kingdom's whistleblower legislation and has been tested in British courts for the past decade. The new test of recklessness and frivolity will serve only to dissuade those who have genuine concerns from reporting for fear of being branded as reckless. That is my concern. It is not that I want to provide comfort for those who in any way know or believe what they are saying is frivolous, vexatious or misleading.

One must be careful about the overall context and import of this legislation. My fear is that it could have a chilling effect on those who genuinely have a matter to report. Why not simply require that what they report must not be false? If one considers the imposition of criminal liability, one will note it just applies to circumstances in which one knows one's statement is false. If that is the threshold at which the law intervenes, should it not be the threshold applied across the board when offering protection from civil litigation and penalisation by an employer?