Katherine Zappone (Independent) | Oireachtas source

I welcome the Minister to the House. I want to begin by saying how brilliant it is to have the Bill before us today and to note, like my colleague, Senator Byrne, that it is being initiated in the Seanad. I commend the Minister for putting in place a significant plank of the political reform agenda that is contained in the programme for Government, and one I very much agree with. The Minister talked about the Bill as comprehensive whistleblower protection across all sectors of the economy and as addressing a significant gap in Ireland's legal framework for combating corruption, which I believe it does.

When reviewing the Bill, I thought it a product of an exemplary process of law-making, which included the heads of Bill, the general scheme, referral to the committee, the Minister's exchange with the committee, its request for submissions and public hearings and its issuing of the report back to the Minister. I read the report while preparing for this debate and I note that the committee's report, not unlike other reports coming from the committee on pre-legislative scrutiny, identifies issues that could be addressed in the drafting of legislation. That is different from making recommendations in regard to aspects of the legislation. I sometimes wonder whether it would be better for us to have the opportunity within committee work to make recommendations as distinct from merely noting issues that need to be addressed. This would encourage a more robust analysis and a need to come to a better consensus on certain issues. That said, it was done and brought to the Minister's Department, which then conducted a regulatory impact analysis prior to the putting in place of the legislation. There is also the Minister's commitment to review the legislation after a five-year period. All of that is a terrific process of law-making which has contributed to the quality of the Bill.

It is an improvement on the heads of Bill and is a signal that greater transparency and accountability is encouraged in Irish life. Some of the improvements since the heads of Bill stage include the removal of varying degrees of evidential burden or the levels of belief placed on the whistleblower, depending on whom the disclosure is made to. The Bill still incorporates some of these but others have been removed, which is positive. As the Minister said in his speech, it is based on the general standard for the disclosure of information being that it is based on a "reasonable belief". Section 10 adds another level to this, in that the disclosure must be shown to have "substantial truth". However, there is no definition in the legislation of "reasonable belief" nor of what "substantial truth" means. Both of these phrases will be open to interpretation by the courts. Would it not make more sense to define these terms within the legislation, particularly to assist workers in understanding the legislation?

A further improvement has been made in regard to the protection of whistleblowers from the unscrupulous action of their employers following a disclosure, which is a strengthening of the position since the heads of the Bill were published. The broader definition of the worker, to which the Minister referred in his speech, is positive and allows for a range of those in employment to be covered by the legislation. However, I have some concerns about a number of general issues. Perhaps the most important one concerns the purpose of the legislation. The legislation must be a clear signal to encourage people to come forward where they have information on wrongdoing. If this is kept as an overarching principle, it will have a positive impact on the operation of the legislation. If, instead, the view is given that the State is trying to regulate, restrict or penalise whistleblowers, then it will not have that same strong effect in its operation of promoting transparency in the country.

I believe the legislation could benefit from a statement of purpose or principle. Clearly, there are a number of principles that underpin the legislation, such as the need to maintain public confidence in the institutions of the State through transparency and accountability, the primacy of the public interest over the loyalty to an employer, the need to prevent corruption and the need to promote sound corporate governance. As the Minister is aware, the courts tend to use the Long Title of the legislation as a point of analysis. From that perspective, I believe the Bill could benefit from a statement of principles or an expansion of the Long Title to clarify its purpose. This is particularly important given there is no definition of "public interest" contained in the Bill, even though it is mentioned in the Title.

I am also concerned about the level of complexity contained in the Bill, to which the Minister referred. Of course, I am aware that legislation, by its nature, is bound to be somewhat complicated. However, in the case of this Bill, it is especially important that anyone who may potentially be a whistleblower understands what he or she can and cannot do. A particularly striking example of this is the definition of what is a protected disclosure in section 5, which states: "For the purposes of this Act “protected disclosure” means, subject to subsection (6) and sections 17 and 18, a disclosure of relevant information made by a worker in accordance with section 6, 7, 8, 9 or 10."