Brendan Howlin (Wexford, Labour) | Oireachtas source

The Senator's first amendment, No. 4, proposes to replace "all reasonable steps" in section 16(1) with the new phrase "reasonable and available measures". Replacing "all reasonable steps", which is what I want, with "reasonable and available steps" actually weakens it because we will have to determine the steps that were available to the person. I believe that is a weakening of the provision in simple English and that the phrase I have included is stronger.

Amendment No. 5 proposes the deletion of subsection (2)(a) in section 16, which permits the identification of a disclosure in the case that a recipient of a protected disclosure reasonably believes that the person by whom the disclosure was made could not object to being identified. There will be many cases where the whistleblower does not have any difficulty with being identified and if that is self-evident and manifest, it might help the advancement of the case. If the person is content to say: "I work for this company and we are pumping out toxic waste into the river, which I think is a disgrace, and I am willing to say that because I was the one who did it", that would help in the investigation. There is no pressure on the person but where somebody is willing, and it often is the case that somebody is willing to do that, I do not see that that should not be permitted.

If we look at section 16(2), there are cases where disclosure may be justified for the effective investigation of the relevant wrongdoing, the prevention of serious risk to the security of the State, public health, public safety or the environment, or the prevention of crime or the prosecution of a criminal offence. I have personal experience in that these matters were tested in our highest courts where innocence at stake is an issue. It is important, to protect somebody from serious harm, that the identity might be disclosed. It is crafted in the best way to protect workers in the round but also in cases where serious harm either to the environment, the security of the State or the carrying out of natural justice, or any justice matter, it is important to ensure the legislation in section 16 is crafted in a fair and reasonable way.

Amendment No. 6 proposes to criminalise the intentional disclosure of information identifying a person who has made a protected disclosure. That is a step up. The issue of criminalisation was dealt with in some detail in the regulatory impact assessment I published with the Bill; I am sure the Senator has had a chance to read that. In the regulatory impact assessment the case was made that the potential for a worker to be criminalised in the legislation presents a very significant impediment against reporting. Since one of the primary underlining objectives of the legislation is to encourage workers to come forward and disclose concerns of wrongdoing, any potential, however remote, that an action of such whistleblowing would result in criminal prosecution is undesirable. In addition, I am advised by the Attorney General that any potential criminalisation of a worker, in the absence of equivalent criminalisation of an employer, is unlikely to be perceived as securing balance in the treatment of employer and employee under the legislation.

In view of the objective to encourage disclosures of wrongdoing and taking into account the uneven treatment in the matter of criminalisation both within and across the span of sectoral statutes, the proposed legislation does not therefore include any provision for the criminalisation of workers or employers. We should not go down that route.