Michael Noonan (Limerick City, Fine Gael) | Oireachtas source

Amendment No. 16 seeks to require the Central Bank to publish in its annual report a statement of the employment status of persons reporting breaches and a statement of the reforms undertaken by the body in respect of which the report of breaches was made.

It is important that the identity of those reporting breaches is protected to the greatest extent possible. For that reason the Bill includes a protection for the identity of whistleblowers, except where disclosure is necessary for effective investigation or other action arising from the disclosure. On that basis I would not support publication of the employment status of the whistleblower, lest it lead to speculation about or victimisation of the whistleblower or other persons. For example, if the whistleblower were identified as the risk officer, chief financial officer or compliance officer, it might lead to an individual being identified or others with the same title being victimised.

That said I have some sympathy with the core point being made by the Senator about the need for action on foot of disclosures. I made an amendment in the Dáil to respond to this issue when raised by the Opposition. To address the point I have inserted a new section 38(4) requiring the governor to prepare a report for the Central Bank commission on the disclosures and action taken. Given the sensitivity of the issues likely to be involved and the need to avoid identifying whistleblowers or hindering subsequent investigations, I would not be in favour of publication of details in the annual report.

Given that this provision is being introduced for the first time in the financial services sector, I expect it is an element of the Act that will need to be reviewed after a time to assess its effectiveness in light of real world experience. However, for the reasons outlined, I do not propose to accept the Senator’s amendment.

If a person has broken the law his or her protection will not apply which I believe addresses Senator Gilroy's point. Section 40 sets out the protections from civil liability for those who make protected disclosures. This is a key section as it allows for whistleblowers' protection to apply beyond the employer-employee relationship, for example in the case of disclosures by customers or auditors. Subsections (1) to (4), inclusive, provide that a person shall not be liable in damages or any other form of relief in respect of making a protected disclosure unless it is known by the person to be false or misleading. This protection is in addition to and not in substitution for any other form of protection to which the person may already be entitled for making a disclosure, whether to an appropriate person or otherwise.

Subsection (5) provides for the protection of the identity of the person making the disclosure, except with his or her consent or where divulging the identity of the person is necessary for an investigation of the matter to which the disclosure relates. Investigation is meant here in its broader sense to include an examination of the matter or any proceedings which may follow. The section specifically lists a number of situations under financial services legislation where such a disclosure may be required, including an administrative sanction inquiry, an appeal before the Irish Financial Services Appeals Tribunal or a fitness and probity hearing.

A person acting in accordance with law has the full protection the Senator requires. However, protection does not extend to somebody who breaks the law.