Brendan Howlin (Wexford, Labour) | Oireachtas source

I seem to be in this House very frequently, about which I am very glad. As Senators will be aware, the introduction of protected disclosures legislation in this jurisdiction has a long history. It is worth recalling that it was as long ago as 1999 that my colleague, the Minister for Communications, Energy and Natural Resources, Deputy Pat Rabbitte, introduced a Private Members' Bill proposing the introduction of a regime for the protection of whistleblowers. Although initially accepted by the then Government, it had a long and tortuous passage, only to be eventually dropped as a Government priority in 2004. By 2006 the Government of the day had decided to deal with the issue on a sectoral basis, but, as we are all aware, this resulted over time in an incomplete, uneven and patchy framework of protections. I am pleased to be able to say the Bill I am introducing today fulfils a commitment in the programme for Government to introduce whistleblower legislation and reflects commitments I have made on several occasions to introduce a single overarching framework of protections for workers in all sectors, public and private.

The Bill addresses what has been identified as a significant gap in Ireland’s anti-corruption framework, highlighted, in particular, in the final report of the Mahon tribunal which recommended the introduction of pan-sectoral whistleblower protection legislation. It also addresses the significant issue highlighted in the Nyberg report on Ireland’s banking crisis that those expressing contrarian views risked sanctions and potential loss of employment.

The Bill which closely reflects international best practice provides a detailed and comprehensive statutory framework within which workers can raise concerns regarding possible serious wrongdoing, knowing that protections are available if they are subject to penalisation by their employer. The legislation provides a safety net. If no penalisation occurs, there need be no recourse to the legal protections. Where such protections are required, they will be available under this legislation. The Bill provides, as I have stated, a single overarching framework protecting whistleblowers in a uniform manner in all sectors of the economy. It substantially replaces the patchwork of protections in particular areas which has resulted heretofore in a fragmented, partial and incomplete standard of protection for whistleblowing.

A key feature of the legislation is the protection afforded for a disclosure made on the basis of a reasonable belief, even if it ultimately proves to be incorrect. No protection is provided for a disclosure determined to have been made without a reasonable belief, for example, for a deliberately or recklessly made false report. The Bill introduces a framework which seeks to regulate whistleblowing in the best interests of the whistleblower, his or her employer and in the public interest of having concerns of serious wrongdoing reported and investigated. It is intended that this will support and encourage disclosures being made to the person best equipped to examine and resolve the issue, for example, an employer or an appropriate public body. Whistleblowing into the public domain will, however, be facilitated under the legislation where particular conditions are met.

The Bill provides for a stepped disclosure regime in which a number of distinct disclosure channels are available, namely, internal disclosure to an employer, externally to a prescribed person, or potentially into the public domain where the circumstances are such that this may be warranted. As a consequence of the conditionalities associated with external disclosure, it is anticipated that the simplest form of disclosure – to an employer - will be availed of most frequently. The threshold for a report to an employer is set at a relatively low level in order that, most importantly, a worker can make such a report on a no-fault basis. There is a clear public interest in the making of such reports in order that any real or possible wrongdoing can be addressed and ameliorated at the earliest possible stage.

One of the main objectives of the legislation is to provide protection for workers who suffer detriment for having reported wrongdoing. The protections set out in the Bill fall into two broad categories: protection for employees from penalisation by employers and from suffering detriment as a consequence of the actions of others. In the case of penalisation by an employer, an employee will have access to the normal industrial relations machinery or, in the case of dismissal, the protections of the Unfair Dismissals Acts, regardless of length of service. In the case of the broader category of worker defined under the Bill, where a worker, including a contractor who has no employer, suffers detriment as a consequence of the actions of any person other than the employer, he or she will, among other things, have a capacity to take an action for damages in tort. Workers who make protected disclosures will also be provided with a defence against criminal proceedings, as well as a wide immunity from civil liability.

As I have highlighted, the Bill is designed to support and encourage disclosures being made to the person best equipped at the lowest level to examine and resolve the issue, namely, the employer. It is appropriate, therefore, that arrangements should be such that any wrongdoing raised by a worker with his or her employer should, as much as possible, be satisfactorily dealt with at a local level and that the issue of a worker having to seek recourse to the protections should represent the exception rather than the norm. With this in mind, the Minister for Jobs, Enterprise and Innovation, Deputy Richard Bruton has, following a request from me, asked the Labour Relations Commission to prepare a code of conduct for employers and employees which will set out practical matters as to how a disclosure might be made and how an employer ought to handle such a disclosure upon its receipt. Work on the preparation of the code will commence in the near future and, with good will from all concerned, it is to be expected that the code will ensure that in the majority of cases where the issue of a protected disclosure arises, the matter will be resolved in a satisfactory manner without recourse to the legislation.

I am satisfied this Bill represents a significant step forward in the framework of existing protections for workers, while at the same reflecting best international practice in whistleblower protection legislation. It takes a fair, balanced and proportionate approach which will ensure Ireland’s international reputation in preventing corruption is significantly enhanced.

I would now like to turn to the specifics of the Bill and present a brief outline of its main provisions. Part 1 provides for the date of the coming into operation of the Bill, a review of the legislation after a period of five years, the interpretation of a number of terms and the standard provisions for expenses incurred. It is my intention that the legislation will be commenced immediately on its enactment. Section 1 sets out the Short Title to the Bill. Section 2 provides for a review of the legislation after a period of five years and the presentation of a report to the Oireachtas. Section 3 sets out the interpretations and definitions used in the Bill. Section 4 is a standard provision providing for expenses incurred by the Minister.

Part 2 establishes the concept of a protected disclosure, on the wrongdoing that can be reported, the persons to whom reports can be made and the details of the stepped disclosure regime. Section 5 provides that a protected disclosure is a disclosure of “relevant information”. Information is relevant information if in the reasonable belief of the worker it shows or tends to show one or more of the relevant wrongdoings. A broad range of relevant wrongdoings, the proper reporting of which will attract the protections, are set out.

Section 6 provides for the first step in the stepped disclosures regime, namely, a disclosure to an employer or another person where the matter falls within the area of responsibility of that person. A disclosure to an employer simply requires a reasonable belief on the part of the worker that it shows or tends to show one or more of the relevant wrongdoings. As this is the simplest form of disclosure to make, it is anticipated that this will be the most commonly used. We will provide clear guidelines on how it should happen.

Section 7 provides for the second step in the stepped disclosure regime, namely, an external disclosure to a person prescribed by the Minister. A statutory instrument will be required and examples of prescribed bodies could include the Health Information and Quality Authority, the Health and Safety Authority, the National Consumer Agency and the many other bodies and agencies which have responsibility for regulation. In the case of a disclosure under this section, a worker must have a reasonable belief in the substantial truth of the matters disclosed. This is a step up from the simpler reasonable belief requirement in the case of a disclosure to an employer. Section 8 provides that a disclosure by an employee of a public body may be made to the appropriate Minister with responsibility for that public body. Section 9 provides that a disclosure made in the course of obtaining legal advice from a barrister, solicitor or trade union official shall be protected.

Section 10 provides for the third step in the stepped disclosure regime, namely, an external disclosure to another body or individual such as a member of the media. If the protections are to be attracted to such a wider form of external disclosure, even stronger qualifying criteria must be met. In addition to the substantial truth requirement, the disclosure must not have been made for personal gain and at least one of the following conditions must be met: the worker must have reasonably believed he or she would be victimised if the matter had been raised either internally or with a prescribed person; there was no prescribed regulator and the worker reasonably believed the evidence was likely to be concealed or destroyed if the disclosure was made to the employer; or the concern had already been raised with the employer or a prescribed person and that the wrongdoing is of an exceptionally serious nature.

Part 3 establishes the nature of the protections. In a case of dismissal, the protections of the Unfair Dismissals Acts, without the usual exceptions and with increased compensation, will be available. In the case of a penalisation falling short of dismissal, the worker may seek access to the standard industrial relations machinery. Other important provisions in this Part provide for a right of action if a third party causes detriment to the worker or another person because a protected disclosure was made; immunity against civil proceedings; a defence against criminal prosecution; and the protection of the discloser’s identity. Section 11 amends the Unfair Dismissals Act 1997 in order that its protections will on a day one basis be available to employees dismissed for having made a protected disclosure. The compensation payable is increased to a period of five years. On considering this aspect of the Bill, I felt a new employee who saw something egregiously wrong should not have to wait for six months before enjoying the protections of the Bill.

Section 12 prohibits an employer from penalising or threatening penalties against an employee or from causing or permitting any other person to penalise or threaten penalties against an employee for having made a protected disclosure. If penalised, the worker may seek access to the standard industrial relations machinery. The compensation payable is increased to a period of five years. Section 13 provides for a right of action if a third party causes detriment either to the worker or another person because a protected disclosure was made. The term “detriment” is widely defined.

Section 14 provides immunity against civil proceedings. It amends the Defamation Act 2009 with a view to ensuring a statement made under a protected disclosure will have qualified privilege under that Act. Section 15 provides a defence to criminal prosecution for an offence related to disclosure of information. This section is necessary to overcome the many provisions relating to non-disclosure in other legislation.

Section 16 imposes a duty on persons handling protected disclosures to protect the identity of the discloser. The necessary and pragmatic exceptions to that duty are also set out. A person who suffers loss as a result of a failure to maintain confidentiality of identity may pursue an action for damages.

Part 4 sets out further conditions associated with the external disclosure of a particularly sensitive class of information relating to law enforcement, security, defence or international relations. Disclosure can continue to be made to the employer in the normal fashion, but the issue of external disclosure is covered. Section 17 sets out a number of conditions that must be satisfied in addition to those in section 10 for an external disclosure of information relating to law enforcement matters. An external disclosure of such information can only be made to a Member of Dáil Éireann or, if it contains taxpayer information, the Comptroller and Auditor General.

Section 18 sets out the conditions that apply in the case of an external disclosure of information that could adversely affect the State’s security, defence or international relations. The only external person to whom a disclosure of information may be made is the disclosure recipient whose role and functions are described in Schedule 2.

Section 19 provides for the making of regulations covering protected disclosures by members of An Garda Síochána and the securing of redress where a member has been penalised or threatened with penalties for having made a protected disclosure. While these regulations will be specific to the force, the protections available to members of the force will, I am assured, reflect the broad thrust of those available to all other workers. Section 20 provides for an amendment to the Ombudsman (Defence Forces) Act of 2004 allowing the Defence Forces Ombudsman to receive and investigate external disclosures from members of the Defence Forces.

Part 5 provides for the establishment of internal procedures by public bodies, a prohibition on protected disclosure gagging clauses in contracts and the amendment of a number of existing legislative provisions. Section 21 requires every public body to establish and maintain internal procedures for dealing with protected disclosures. Section 22 prohibits the contracting out of the protections provided under the Bill and is designed to prevent employers from preventing workers by way of gagging clauses from seeking its protections.

Schedule 1 sets out the redress provisions in respect of a penalisation falling short of a dismissal and reflects the existing standard provisions of the industrial relations dispute mechanisms. Schedule 2 establishes the office and functions of the disclosures recipient. Schedule 3 sets out amendments to a total of 16 sectoral Acts and one statutory instrument containing diverse whistleblowing-type provisions.

I am conscious that although this is a relatively short Bill, certain elements are, at first read, complex enough in nature. I have dealt with its provisions in summary here today and I am happy to expand on any of its provisions during the course of the debate. If Senators wish to raise any particular issues I will be happy to have them examined in detail. I look forward to hearing the contributions of Senators during the debate and I hope the Seanad will support the passage of what I believe is long-awaited and absolutely essential legislation.