Rónán Mullen (Independent)

I move:

That Seanad Éireann:

noting—

that more than one in four cases of fraud and corruption worldwide are exposed by whistleblowers;

that potential whistleblowers are often discouraged by the fear of reprisals and the lack of follow-up given to their warnings, to the disadvantage of the public interest;

that less than 40% of Irish employers claim they promote whistleblowing in the workplace compared to almost 90% in the United Kingdom where universal whistleblower safeguards are enshrined in law;

that Ireland continues to adopt a sector-by-sector approach to whistleblower protection affording whistleblowers inconsistent, inadequate and often confusing standards of protection;

the remarks of the Director of Public Prosecutions, the Ombudsman, the Governor of the Central Bank, the Law Society and Transparency International in calling for comprehensive legal safeguards for whistleblowers in Ireland;

that in 2010 the Council of Europe Parliamentary Assembly unanimously adopted a resolution on whistleblowing calling on all member states to introduce comprehensive legal safeguards for whistleblowers;

considering—

the right to share information enshrined in Article 19 of the Universal Declaration of Human Rights;

the need for more people to speak up in preventing further wrongdoing in Government, business, banking and the charities sector;

the need for clear, unambiguous universal whistleblower legislation similar to that in place in the United Kingdom aimed at offering whistleblowers in any industry or sector assurance that they will be protected if they speak up;

the long successful history of universal whistleblower legislation in the United Kingdom;

Fine Gael and Labour Party election commitments to the introduction of a universal whistleblower law affording people in both the public and private sectors legal protection;

that a very vulnerable section of society, namely migrant workers, are especially at risk when reporting wrongdoing;

that 16% of workers in the Irish labour force are migrant workers;

the current controversy surrounding alleged abuse of patients at Rostrevor House Nursing Home and the fact that many of the staff at this nursing home were migrant workers with limited employment or residency rights;

the need for whistleblowing training, guidance and awareness raising amongst Irish employers and the workforce;

calls on the Government to:

— introduce universal whistleblower legislation that protects all workers irrespective of nationality or profession where they disclose information about perceived wrongdoing in an organisation, or the risk thereof, to individuals or entities believed to be able to effect action;

— introduce criminal sanctions against anyone who attempts to cover up a report that may be made by a whistleblower to the authorities or retaliates against a whistleblower reporting concerns about criminal wrongdoing, or danger to the health and safety or others or to the environment;

— afford the Rostrevor whistleblowers fast-tracked assistance to ensure that they are not put at any disadvantage as a result of reporting abuse, corruption or other wrongdoing; and

— allocate and actively encourage the allocation of resources to the promotion of speak up policies, guidelines and training across the public and private sector in Ireland.

Cuirim fáilte roimh an Aire. The motion is aimed at highlighting the current plight of whistleblowers in Ireland, the cost to Irish society of not protecting whistleblowers and the simple measures that must be introduced to protect them as a matter of urgency. This debate is particularly timely, given the allegations coming from Rostrevor House Nursing Home and how the allegations of workers at the home were treated after blowing the whistle. However, the issue deserves Members' attention nonetheless.

For decades we have been hearing about the devastating consequences of cover-ups, abuse and corruption in Ireland, from the sexual and physical abuse of children, graphically recounted in the Murphy report and elsewhere, to the abuse and maltreatment of former patients at Our Lady of Lourdes Hospital, Drogheda, as well as from the scandal of the Irish Hospital Sweepstakes competition to the economic catastrophe wrought on the country through wrongdoing in the banks. We have learned that silence is not always golden. In addition, we have heard about the plight of those who have chosen not to remain silent. We have learned how whistleblowers such as Eugene McErlean, former head of audit at Allied Irish Banks, and Noel Wardick at the Irish Red Cross have been ignored and lost their jobs for reporting concerns in good faith. The story of Bernadette Sullivan at Our Lady of Lourdes Hospital shows how whistleblowers are often ostracised and isolated for having reported on one of their own.

The latest accounts of alleged abuse at Rostrevor House Nursing Home show how the most vulnerable in society can be exposed to and always will be at risk of cruelty and neglect. A total of 14 staff have been made redundant because of the closure of the nursing home and two of the whistleblowers dismissed. It has been found, to the cost both of the whistleblower and the victims of wrongdoing, that abuse continues and will happen for as long as the need to protect those who speak out is ignored. Abuse will continue for as long as society fails to punish those who silence workers attempting to tell the truth. Unfortunately, when the Rostrevor House Nursing Home workers all lost their jobs, the message sent to workers was that if one reported abuse, together with other innocent colleagues, one would lose one's job, that one's professional reputation might be ruined and that one would not receive support from either HIQA or the HSE.

Unlike the United Kingdom, with its Public Interest Disclosure Act 1998, and New Zealand, with its Protected Disclosures Act 2000, Ireland does not have an overarching whistleblower protection law. After a series of political corruption scandals, a Bill proposing such a law was tabled in 1999 by the Labour Party. It languished in the Government's programme for seven years before being dropped because according to the then Minister of State, Tony Killeen, "[a] single all-encompassing legislative proposal on whistleblowing would be complex and cumbersome, take considerable time to enact and would not be user friendly for the general public." These complexities were never fully explained by the then Government and neither did it explain how a single comprehensive and overarching Act would be less user-friendly than a piecemeal, incoherent and scattered legislative approach. Instead, it chose to introduce legislation on a sectoral basis in a process begun in 1998 and which became official policy in 2006. It is an approach that only protects employees in some professions and sectors, which leaves employees and other potential whistleblowers in other sectors with little, if any, legal protection.

Shockingly, there is no statutory protection for whistleblowers in financial services, or in respect of company law issues or the Civil Service. Particularly important from the point of view of the motion, the protections pertaining to nursing home and medical malpractice lag behind other whistleblower provisions in Irish law. This point was borne out by a recent study undertaken by the centre for health policy and management at TCD, the findings of which revealed that 88% of nursing staff respondents in Irish hospitals had observed an incident of poor care in the past six months. The findings indicated that 70% of those who had observed an incident of poor care reported it. However, only one in four nurses who had reported poor care was satisfied with the way the organisation had handled his or her concerns.

Whistleblowing in health care settings is extremely important. For instance, the UK-based Public Concern at Work organisation notes that in the last decade public safety, including patient safety in health care settings, consistently ranked in the top five concerns reported to its helpline.

The international evidence clearly shows the value of whistleblowing. More than one in four cases of corruption and fraud is disclosed by whistleblowers. Many cases of sexual abuse and wrongdoing at work are uncovered by whistleblowers. The financial benefits alone are worthy of note. For example, the Department of Justice in the United States has claimed that whistleblowers have saved the American taxpayer $21 billion since the mid-1980s. Our counterparts in the United Kingdom, New Zealand, Australia and South Africa introduced comprehensive safeguards for whistleblowers a long time ago. In the UK, these protections have been used effectively and without legal mishap to foster a culture where speaking up is much more the norm than is the case in Ireland. Most common law jurisdictions have recognised the importance of flexible comprehensive laws in preventing corruption, fraud, waste of public resources, discrimination and sexual abuse. Our current sectoral approach allows only for narrowly defined categories of workers to report very narrowly defined categories of offences. Workers in our financial services, agency staff in hospitals and private health care providers, airline pilots and those reporting violations of company law, are all exposed to retaliation by their employers. This uneven standard of protection creates uncertainty in the mind of the person reporting wrongdoing at work. Such doubt can only have a chilling effect on the prospective witness or whistleblower and will continue to pose a barrier to the development of a culture of transparency in Ireland.

We must guard against complacency on this issue. Any old over-arching law in this area is not enough. While the introduction of generic Private Members' Bills on whistleblower protection in 2010 and again this year was welcome, and particular credit must again go to the Labour Party on this issue, these Bills are still not without their flaws. The protection offered therein is still too narrow and does not cover persons falling outside the traditional employer-employee relationship. In particular, migrant workers, such as those involved in the current Rostrevor case, and who comprise 16% of workers in the health and home care sectors, would not be protected by the enactment of the Labour and, now, the Technical Group Bill as it currently stands. This has potentially very serious repercussions for a group of people whose vulnerability is heightened due to their limited employment and residency rights. Non-executive directors, contractors and consultants, too, fall outside the traditional model and thus fall not to be protected under this proposed legislation. Another lacuna is that the Bill does not propose criminal sanctions against those who attempt to cover up a report that may be made by a whistleblower to the authorities or who retaliate against a whistleblower reporting concerns about criminal wrongdoing.

It is also worth mentioning that compensation for workers found to have been victims of whistleblower retaliation should be proportionate to the impact of the retaliation. The current provision of two years' salary under the Unfair Dismissals Act does not go nearly far enough to compensate many of those whistleblowers who have often lost everything. The Safety, Health and Welfare at Work Act 2005 and the Employment Permits Act 2006, already offer whistleblower compensation that is deemed to be just and equitable in the circumstances and these provisions could easily be provided for in new legislation.

Given all we have learned about wrongdoing in all sectors of society and the economy, it is time we introduced a whistleblower law that would protect every worker, irrespective of their nationality or employment status, a person who honestly reports a concern about wrongdoing, waste and other risks to the public good. It is time we introduced a law that challenges the culture of secrecy and impunity, a law that shows we have learned from the mistakes which have cost this nation and its people so dearly.

I note and I am grateful for the interest of the Government and Sinn Féin in proposing amendments to this legislation. However, I must point out that Transparency International Ireland, to whom I am greatly indebted in the preparation of this motion - Mr. John Devitt of Transparency International Ireland is in the Visitors' Gallery. In consultation with Mr. Devitt, the following points could be made about the motion. Sinn Féin's amendments look rather similar to the original motion. They focus on the issue of white-collar crime and there is a valid point to be made in this regard but it is a point which, in the view of Transparency International Ireland and in my view, could distract from the purpose and impact of this motion which is to identify the need for over-arching whistleblower legislation which is primarily to do with the protection of the persons involved. It is to do with whistleblowers not just where they are reporting on fraud or white-collar crime but in all sorts of different situations. It is clear that over-arching legislation is required to guarantee a standard of protection for people, as distinct from a piecemeal, hit and miss approach, sector by sector, where there are uneven protections for different groups and for some groups, no protection at all. It is quite clear that by having over-arching legislation, a standard can be achieved. It may be necessary in other legislation to deal with the particular issues facing particular sectors but it is absolutely essential to have standard whistleblower legislation of an over-arching nature of the kind that pertains in Great Britain.

The only thing wrong with the Government's amendment is that it does not go far enough. It is quite admirable in what it proposes but it fails in its lack of detail to address the other kind of protections needed. The issue of migrant workers demonstrates clearly that whereas legislation to guarantee the rights of whistleblowers in certain circumstances is essential, there is also the need for wider protection. I give as an example a person who loses his or her job as a result of making a disclosure in the public interest which leads to the closing down of a nursing home. In that situation what is clearly called for is some kind of protective approach on the part of the State, similar to what applies in the case of victims of human trafficking where there is a kind of administrative system within the Department of Justice and Equality which, at least in theory, provides victims of human trafficking with various supports. In the case of a migrant, one does not wish to have such a person disincentivised from making a report in the public interest. It is quite clear that a person who fears losing his or her job as a result of the closure of the institution about which they have an important complaint to make, will be slow to make that report. Therefore, it would be necessary for the State to provide assistance for the person who might lose his or her job. In the case of migrant workers who might need a transfer of their work permit to any new employment, it could be a fast-tracking of that application. It is more than just a case of legislating. What is needed is a whole policy and legislative framework that will go on to change the culture in the country and create a culture where people will feel positive about making a necessary disclosure.

Mar sin, tá sé de dhualgas orainn a chinntiú go bhfuil cearta gach duine anseo cosnaithe. Ba chóir dúinn iad siúd gur mhian leo an eolas seo a chur faoi bhráid údarás caoi, ar mhaithe leis an bpobal, a chosaint. Cabhróimid leis na daoine sin trí reachtaíocht chaoi a chur i bhfeidhm.