Rónán Mullen (Independent) | Oireachtas source

I move amendment No. 19:

In page 8, between lines 24 and 25, to insert the following:“(p) any communication, howsoever made, by a person specified in subsection 2(b) and 2(c) where the purpose of that communication is to disclose relevant wrongdoings.”.

I must start by saying that I agree completely in principle with the purpose of this Bill. Politics depends on trust and public trust in our political institutions is essential but as we all know, it has come under a lot of pressure in recent times. There is something profoundly alarming about political cartels exercising undue influence over Government decision making and any situation that involves private gain going before national interests is very alarming.

This Bill has been a long time in the making and is generally welcome. I would like to commend the Minister on his expertise and his good work in this area. However, there are some areas where I feel the Government has not given due weight to exempting certain vital communications from the general definition of lobbying. It is on that basis that I am seeking to amend section 5 of the Bill which deals with excepted communications. The amendment I am proposing is reasonable and would allow the Bill to reflect that certain types of communication of concern should be protected from disclosure for the reasons I will set out.

I am seeking to amend section 5, subsection (5) by inserting a new subsection (5)(p) which would read, "any communication, howsoever made, by a person specified in subsection 2(b) and 2(c) where the purpose of that communication is to disclose relevant wrongdoings".

Furthermore, my amendment invites a consequential amendment to section 5(9), which sets out the definition of terms in section 5. This amendment is to include a definition of "relevant wrongdoings" and is a necessary addition if my amendment to section 5 proposing the insertion of subsection (5)(p) is accepted.

The amendment to section 5(9) would define "relevant wrongdoings" exclusively as follows: the commission of an offence; a miscarriage of justice; non-compliance with a legal obligation; health and safety threats; misuse of public moneys; mismanagement by a public official; damage to the environment; abuses of constitutionally protected rights; or concealment or destruction of information relating to any of the foregoing. In terms of the rationale for this, section 5 deals with accepted communications - in other words, communications that would not be deemed to be disclosable lobbying communications or activities. It is prudent to have such a list, in particular, where matters of diplomacy or State security would be otherwise exposed to inclusion as lobbying activity and therefore potentially subject to disclosure.

My amendment seeks to protect organisations and individuals representing those organisations who come forward with information concerning wrongdoing from inclusion under the heading of lobbying. As the section stands, I have a serious concern regarding the protection of sources of information, particularly where an organisation may approach an Oireachtas Member with confidential information about actual or alleged wrongdoing. I have excluded the persons envisaged in section 5(2)(a), as the Protected Disclosures Act 2014 - the whistleblower legislation - makes provision in a fuller manner for protection for employees making disclosures regarding relevant wrongdoing. The statutory protection against victimisation in that Act is very welcome.

The purpose of this amendment is to exclude certain communications made by persons from organisations that would normally be considered to be engaged in lobbying - for example, unions, representative organisations or non-governmental organisations, NGOs. As matters stand, persons from these organisations, on behalf of their organisation, may approach Oireachtas Members with information regarding wrongdoing in the public interest without the suggestion of lobbying. I fear that if this amendment does not carve out a specific exception for such information, organisations such as those listed may be reluctant to come forward with information as, in doing so, they may be identifiable under the relevant provisions of this Bill.

There is a subtle but importance difference between the understanding of lobbying - that is, to change official discourse or decision-making on a given issue - and disclosure of wrongdoing, which has the aim of serving the public interest by exposing actual or alleged harmful behaviour. If an organisation or person acting on behalf of that organisation felt the need to protect a source, whether they be an individual or a group of individuals, and that organisation or person reasonably believed that the only guarantee of anonymity was to deny that they had met an Oireachtas Member, if questioned by the Standards in Public Office Commission, SIPO, or any other organisation, then their denial would be in breach of the provisions of this Bill. However, with my amendment, the communication of wrongdoing would be protected from the description of lobbying and protected from the attendant requirement of disclosure that this Bill entails.

Furthermore, I believe that persons or organisations must have a right to approach legislators in a free society with information about wrongdoing - this is in the public interest - and to be able to do so without having to reveal themselves and thereby potentially reveal their sources of information. In certain cases, the knowledge that a particular organisation approached a particular person amounts to a destruction of anonymity where something in the public interest is being revealed. This right to protection from disclosure can be defended by an analogy with similar rights enjoyed by journalists, which are protected in law.

While I agree that the Government and the Executive should be held to a standard of full disclosure, the same standard applied to Oireachtas Members in the course of their duties will damage the confidentiality that is necessary to expose wrongdoing and highlight potential abuse of public funds. I look forward to the Minister's response.