Rónán Mullen (Independent)

I thank the Minister for his response, which I note is also in good faith. We have a civil disagreement here about the overall impact this Bill would have. The House is in danger of forgetting the psychological context in which whistleblowing must take place and the environment we need to create. We are coming from behind here. Let us remember what there has been in this country on issues such as sex abuse and fraud and mismanagement in State institutions and in institutions such as banks. That is key to understanding.

It is helpful what the Minister said about the presumption issue, that the employee will be presumed to have acted in good faith. That is certainly useful and I thank the Minister for drawing my attention to it.

I speak as someone who was subjected to certain frivolous and vexatious claims about myself that had to be adjudicated on by a committee of this House over the summer and I do not take lightly the irresponsibility of those who make misleading, frivolous or vexatious claims. I have given the reason I believe these words, while in one sense logical, may be unhelpful in their overall context to the cause of encouraging whistleblowers to do their work.

If the Minister is so sure it is necessary to include the words, "misleading, frivolous or vexatious" in order that a person who either knows or is reckless as to whether what he or she has stated or reported is misleading, frivolous or vexatious will be liable to damages, why does he not also make them liable to prosecution? Why does the Bill state in section 4(3): "A person who makes a communication under subsection (1), which the person knows to be false", and it if it is so serious, why does the Minister not also include that the person knew it to be misleading, frivolous or vexatious? Why the inconsistency? I would welcome the Minister's reason in that regard.

The Bill states that an employer shall not penalise or threaten penalisation against an employee except where he or she knew the allegation to be false. Will the presumption that the employee acted in good faith be sufficient to prevent an employer from forming a subjective opinion that the employee knew the allegation to be, or was reckless as to whether it was, misleading, frivolous or vexatious? Is there sufficient protection in that section the Minister quoted, given that this area is one which allows for some degree of subjectivity in the formation of judgment? I would be especially grateful for an answer as to why there is a distinction between the safeguard against civil liability and the safeguard against criminal liability.