Brendan Howlin (Wexford, Labour) | Oireachtas source

However, I will talk to it in discussing the section. I will outline the reason the section is in the Bill. Again, it relates to the experience in the United Kingdom and I mentioned it in my speech on Second Stage. It is about the good faith test. There was a good faith test in the original UK legislation. It was expected that somebody who was whistleblowing would act in good faith. However, I have taken that out of this Bill because there could be instances where wrongdoing is outed not for the best of reasons. That does not make the wrongdoing any less real, or outing it any less important or valuable. Section 11(e) mirrors the compromise that was arrived at within the British system, whereby in dealing with cases where the good faith test was not met, it was determined that if the motivation was less than wholesome, the compensation available should be less. Bluntly, I am uncomfortable with that. Had the amendment been in order, I would have indicated that I will reflect upon it further.

There is much argument internationally about this. We are all guided by our experience but I know that in the Donegal case, with which I am very familiar, one of the breakthroughs was motivated by less than wholesome motivation. It was a marriage break-up issue. As a result of the marriage break-up, one of the spouses determined to blow the whistle on the other spouse. The fact that spouse was doing things which were not only wrong but criminal was exposed as a result. Did that make the wrongdoing, or the exposing of it, any less important? There are purists who would say "Yes" and that there should be a higher threshold of protection to one if one's motivation is more wholesome.

The Senator is right in that section 5(7) states: "The motivation for making a disclosure is irrelevant to whether or not it is a protected disclosure." That is true, therefore it categorises a protected disclosure regardless of motivation but whether the degree of compensation should always be the same, irrespective of motivation, is a matter for debate. On balance, I am minded to agree with Senator Zappone on that and will reflect further between now and Report Stage. I hope I have not been too convoluted.