Brendan Howlin (Wexford, Labour) | Oireachtas source

Amendments Nos. 26 and 27 relate to an important issue at the core of the Bill which was of concern in both Houses, namely, the protection of the identity of whistleblowers. Having considered the arguments put to me in both Houses, I carefully considered this matter and consulted widely with the Attorney General. The amendments before us seek, as much as possible, consistent with the objective of the legislation and other important public policy objectives, to differentiate between the message and the messenger and to protect the identity of the person who makes a protected disclosure. Amendment No. 26 removes the "all reasonable steps" qualifier so as to make it the recipient's duty to protect the identity of the whistleblower. While the original legislation requires the recipient to take "all reasonable steps" to protect the whistleblower, I am making protection an absolute requirement.

It is essential that recipients of disclosures are not precluded from taking necessary action on foot of the information disclosed to them because it would require them to disclose the identity of the whistleblower. It would be a moot issue if one could not act on the information because to do so would disclose the identity of the whistleblower. Once the issue was being investigated, the disclosure of the information might point to one individual exclusively. We must have provision that action can be taken, otherwise there is no point in the whistleblowing.

Section 16(2) makes explicit the specific and limited circumstances where objectively it would warrant a departure from the mandatory prohibition on disclosing the identity of the whistleblower. The effect of amendment No. 27 is to place the burden squarely on the recipient of the information to demonstrate where the identity of the whistleblower has been revealed that all reasonable steps to avoid such a disclosure have been taken. When considered in conjunction with the provisions of section 16(3) where the holder of the disclosure can be subjected to an action for any loss arising, this sets a very high hurdle for the recipient of the information in ensuring that he or she protects as far as possible the identity of the whistleblower.