Brendan Howlin (Wexford, Labour)

As this House may be aware, in my comments at the opening of the Speak Up help line at the Transparency Resource Advice Centre on 26 May I highlighted the Government's intention to move swiftly to introduce legislation in the Oireachtas that will protect whistleblowers who speak out against wrongdoing or cover-ups, whether in public or the private sector.

The Government recently decided to introduce overarching legislation for enactment by the Oireachtas providing for good faith reporting and protected disclosure on a uniform basis for all sectors of the economy. The Government also decided to expedite the preparation of this legislation, the urgent requirement for which has been confirmed by recent events, many of which were alluded to in the very fine contributions made this afternoon in the House. In that context the Government agreed that the newly established Government reform unit in my Department should proceed with the preparation of legislation. It might be said that we are being a tad premature in establishing reform units in a Department which has not yet been established but we have decided to hit the ground running. I will seek the support of this House later in establishing the Department.

This legislation will conform to the key requirements I outlined on 26 May and I intend it to meet all of the main objectives highlighted in Senator Mullen's motion. It will provide a universal overarching legal charter for good faith reporting and protected disclosure for all employees, as well as for contractors who may have vital information to communicate. As is the case in the United Kingdom and other jurisdictions, the legislation will cover those working in the public and private sectors. Recent events have highlighted the particular vulnerabilities that might arise in the case, for example, of migrant workers who might believe they are at particular risk of employer sanction and that the maintenance of their existence in the State might be challenged. A key priority will be to ensure the legislation treats all parties equally and fairly within an overarching legal framework that is open and transparent.

The House will understand it would not be appropriate for me to comment in detail on the elements of the motion relating to the current controversy surrounding the alleged abuse of patients at Rostrevor House Nursing Home. I refer Senators to the reported comments of my colleague, the Minister for Health who is examining these matters carefully.

The goals of the legislation I am committed to bringing forward are closely aligned with those of the Private Members' motion before the House and the Private Members' Bill introduced by my colleague, the Minister for Communications, Marine and Natural Resources, in 1999. The long-standing commitment to introduce whistleblower legislation was included as a priority measure in the programme for Government. I am strongly committed to delivering on this commitment by having appropriate legislation in place as soon as is practicable. The legislation will build on international precedents and best practice, the sectoral protections already in place in legislation and the provisions of the Private Members' Bill. It will address a number of significant issues, including the precise definitions of "good faith reporting" and "protected disclosure" that will be adopted, the scope of the issues to be comprehended by whistleblowing, the rights of the complainant, the rights of the person, body or organisation complained of, the appeal mechanisms and the sanctions and redress.

The process of preparing the legislation will need to address any possible legal obstacles which may have led to the adoption of the sectoral approach by the previous Administration. I am on record as having drawn attention to the unsatisfactory outcome of the sectoral approach adopted. The unsatisfactory nature of the current situation is underscored by developments in a number of sectors, not least the banking sector, as detailed in the Nyberg report, to which I referred in my previous contribution in the House earlier today. The effectiveness of regulatory systems across the whole economy and society needs to be enhanced substantially. It is clear that in the absence of appropriate safeguards for whistleblowers, regulators will remain at a disadvantage in seeking to identify and produce evidence of the legal standard required of malfeasance and misconduct in public and private bodies. It is interesting that even where robust oversight bodies are in place, one has to depend on an individual within an organisation to blow the whistle. It is often the case that inspections do not reveal the full picture or the full truth. If regulators are at a disadvantage, the health, safety and economic and financial well-being of citizens will remain at risk from behaviour, the serious adverse consequences of which could have been pre-empted by early detection and strong sanctions.

Some significant sectors have been covered under the sectoral approach previously adopted. The legislation introduced provides an initial platform for the work that needs to be undertaken. However, I strongly share the assessment in the motion that the sectoral approach to whistleblower protection has afforded whistleblowers inconsistent, inadequate and often confusing standards of protection. Moreover, substantial sectors and activities in the economy are not covered. I will have regard to the comments made by Senator Feargal Quinn today. They will be considered when the legislation is being prepared. Partly as a consequence of the fragmented, unco-ordinated and ineffective sectoral approach, it is clear that public knowledge and awareness of the essential role whistleblowing can play in enhancing regulatory effectiveness and discouraging illegal and criminal behaviour are inadequate. This highlights the need, in parallel with the implementation of the proposed legislation, to strengthen awareness of the responsibilities of employees, provide for whistleblowing training and guide employers and their workforce.

I am not necessarily proposing that the existing legislation be overturned. It is appropriate to have specific sectoral safeguards to address specific sectoral issues and risks that might arise. It is essential that sectoral measures operate within a coherent and cogent overarching society-wide framework which provides legal assurance and certainty in order that any party coming forward when significant matters involving risk to the public arise will be afforded the necessary legal protection to enable him or her to blow the whistle with confidence. The Government wants to achieve an environment in which legally based operational structures are available to organisations and institutions which facilitate the communication of perceived risk to authority when possible wrongdoing has taken place, is taking place or might take place in the future. If we can achieve the communication of risk through the provision of legally protected disclosure, a major step forward will have been made. The adoption of appropriate processes and procedures to allow for the early evaluation of possible wrongdoing and amelioration, where necessary, can only be good for our internal governance and international standing and reputation.

The disclosure to which the forthcoming legislation will apply must be informed by international best practice and step beyond the bounds of narrow sectoral perspectives. I agree with those Senators who mentioned the Universal Declaration of Human Rights and the Council of Europe resolution as being particularly cogent in this context. The scope of best practice provisions in this area typically covers situations where a criminal offence has been, is being or is likely to be committed; a person has failed, is failing or is likely to fail to comply with any legal obligation to which he or she is subject; a miscarriage of justice has occurred, is occurring or is likely to occur; the health and safety of an individual or group of individuals has been, is being or is likely to be endangered; the environment has been, is being or is likely to be damaged; or information tending to show that any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed. The Government will aim to ensure to the maximum extent possible that such provisions are included in the legislation that I will bring to this House.

A key longer term objective, in the context of implementation of the overarching legislation, is to secure the necessary change in the culture and behaviour of public and private sector organisations. Such a change is needed to ensure serious wrongdoing is identified and brought to light early and the necessary remedial action can be taken quickly. If the legislation is to be successful, its implementation must be accompanied by a positive evolution of our cultural attitudes towards whistleblowing, which must be freed from the previous negative associations alluded to by Senators. It is a civic duty to blow the whistle on wrongdoing or criminal activity, or activity damaging to the rights of citizens. It should not be frowned upon or castigated. The Government's approach will be founded on realism and pragmatism. I propose to ensure protected disclosures will be made in accordance with internal procedures adopted by each organisation. A right to disclose to the head of an organisation will be provided for in certain circumstances. In exceptional cases, external disclosure to members of the Houses of the Oireachtas or other external designated authorities will be provided for.

The Government has announced that it intends to hold a number of referendums, I hope in tandem with the Presidential election. One of the referendums will relate to the pay of judges, as we have discussed. Two other referendums will attempt to ensure the Oireachtas can examine wrongdoing. We will try to loosen the Abbeylara judgment which has tied the hands of committees of inquiry. In addition, we will try to lessen what has been described as the Howlin judgment. I refer to the Supreme Court decision requiring the disclosure of the confidential making of allegations to a Member of the Houses. It is an important part of the constitutional role of elected Members of this and the other House to hear from citizens, in good faith, about wrongdoing on the part of any agent of the State.