Brendan Howlin (Wexford, Labour) | Oireachtas source

This group of amendments includes one of my own. I listened carefully to the debate and the positions presented and we had a good discourse on Committee Stage. Amendments Nos. 11, 12, and 21 are all linked to the issue of compensation and the basis on which that compensation is payable. I propose to address these amendments together.

Amendment No. 11 proposes to replace the qualifying test in the proposed sub-section 2B of the Unfair Dismissals Act 1977, which states, "the investigation of the relevant wrongdoing concerned was not the sole or main motivation for making the disclosure", with, as Senator Zappone said, the in bad faith test. The effect of amendments Nos. 12 and 21 which I have tabled today is to lessen the penalty in compensation that can be awarded from 50% to 25% which is in line with the UK figure. Senator Zappone and others put their view on that strongly on Committee Stage.

Amendment No. 12 relates to the case of an unfair dismissal whereas amendment No. 21 relates to penalisation falling short of dismissal. In considering the bad faith test proposal in amendment No. 11, I must of necessity refer to the difficulties which the good faith test caused in the UK and I referred to that when we last debated this Bill. The inclusion of this test opened up the avenue to exploration into the motivation of the whistleblower and a subsequent failure to attract the protections of the legislation on the grounds that such motivation was less than pure, so to speak. In the case of the Protected Disclosures Bill, after lengthy and detailed consideration I concluded, and the Government agreed with me, that I should proceed with the Bill without a good faith hurdle or the alternative public interest hurdle. I hope that the House will agree that this was a progressive approach which puts the legislation significantly ahead of the UK position in this respect.

In order to put the issue of the motivation of the disclosure beyond doubt in the Bill, I have included a provision at sub-section 5(7) stating that any consideration of the motivation of the discloser in assessing whether a disclosure is a protected disclosure is expressly stated to be irrelevant. I gave the example of my personal experience in this matter when as a public representative I sought an investigation into allegations of wrongdoing in the Garda Síochána in Donegal. The breakthrough in that instance was a statement made to the Garda by a relevant party whose motivation could well have been suspect but that was beside the point. The wrongdoing disclosed by that revelation was extremely important. It was of a criminal nature. Motivation in the British system up to now, when it had the good faith requirement, was shown to be very problematic where a defence then, when a matter reaches the court, centres on attacking the bona fides, the motivation and character of the informant or the whistleblower which I think is fundamentally wrong. I want to take that out of the system. I do not want to replace a good faith requirement with a bad faith requirement, the need to prove that a person does not have bad faith, which is the other side of the coin.

The Office of the Attorney General has advised that when there is no loss of protection under the Bill as it stands on the basis of motivation - that is what I intend it to do - the awarding of compensation, which we are now talking about, is an area in which due account of the motivation can be taken into account. This issue is left to the deciding body, which can hear the full evidence and make a decision that is fair between the parties, depending on the circumstances. It should be stressed, however, that the adjudicating body is not bound to reduce the award, it simply has the capacity to do so on the merits or demerits of the case presented to it. Amendments Nos. 12 and 21 address this issue. I have already indicated that I propose to lessen the penalty from 50% to 25% of what otherwise would be awarded if the investigation of the relevant wrongdoing was not the sole or main motivation of the person making the disclosure. The provisions reflect a similar amendment in the UK Protected Disclosure in the Public Interest Act 1998 which was enacted earlier this year in the British Parliament. It is a more reasonable diminution in the compensation payable and I accept the very clear case made by Senator Zappone and others on Committee Stage for that to happen. It significantly reduces the emphasis on motivation which I have always been concerned to ensure remains. What motivates one to tell the truth is a lesser matter if the facts one presents are true, or if one believes them to be true. They do not have to be true. If one has a firm and honest belief that wrongdoing is taking place one should be protected in bringing that to the attention of the appropriate bodies and, if there is no action, to a higher body.

A bad faith test could open up similar avenues of exploration to those opened up in the good faith test. I do not want to go down that route, even by way of adjudicating on the compensation. For these reasons I will not accept amendment No. 11 and hope that Senators will support the amendments I have put forward.