Brendan Howlin (Wexford, Labour) | Oireachtas source

I thank both Senators for raising this issue. I undertook to reflect on the very coherent case that was made in this regard on Committee Stage. Certainly, the intent as set out by Senator Mullen coincides with the intent of the Government in this regard. While I was confident in the position I set out during the Committee Stage debate, I agreed - ar eagla na heagla and for the avoidance of doubt - to consult further the Office of the Attorney General and have the Chief Parliamentary Counsel examine this matter in some detail.

Amendments Nos. 1 and 2 seek to exempt from the scope of the Regulation of Lobbying Bill any communication coming within section 5(2)(b) relating to a representative body or within section 5(2)(c) relating to advocacy bodies "where the purpose of that communication is to disclose relevant wrongdoings". I said I would reflect further on it and take further advices. I have consulted the offices of the Chief Parliamentary Counsel and the Attorney General on this matter. On foot of those consultations, and my further examination of the issues involved with my own staff, I want to set out for the information of the Seanad the case that has been presented to me.

There are very limited circumstances in which there could even be a potential lack of alignment between the Regulation of Lobbying Bill and whistleblowing-type communications, or where that is likely to occur. There are two reasons for this. First, to be a registerable activity under the lobbying legislation that is in front of us, the communication must be carried out by a person within the scope of sections 5(1) and 5(2)(b) with a designated public official, as set out in the Bill, and come within the definition of "relevant matters" under section 5(9), as Senator Mullen has read into the record of the House. Second, the type of information that would be required to be registered is not detailed and is unlikely to cause problems of the type envisaged by the Senator other than in very limited and specific circumstances. That is the strong advice I have received.

I have looked specifically at the alignment of the Bill with the Protected Disclosures Act 2014, which is the current whistleblowing legislation. The 2014 Act focuses on whistleblowing within the workplace and seeks to ensure protections from reprisals or any sanctions imposed in the workplace for the disclosure of wrongdoing in that environment. The scope of the issues raised by the Senator on the previous occasion, as evidenced by the actual text of the amendment before the House now, is considerably broader than that. The Senator is seeking to extend confidentiality beyond the workplace setting to a wide range of other areas which are not captured by the 2014 Act, which simply seeks to protect those reporting suspected wrongdoing in the workplace.

I accept that these amendments are very well-intentioned. My concern is that the creation of an exception along the lines now proposed would inadvertently create a significant loophole in the Regulation of Lobbying Bill. It would mean that lobbyists who are able to link the matter in which they are interested in any way to an allegation or suspicion of wrongdoing would benefit from a broad concession that would allow them to decide what goes on the register and what does not. It is certainly not the intention of the Senator to provide for such an out for people who do not want to register these communications.

I am proposing to address this matter by adopting a balanced response which would identify and put in place a strategy to address this issue while maintaining the integrity of this Bill and of the Protected Disclosures Act 2014. I propose that we should allow this legislation, as it stands before the House, to operate for the first 12 months and use that period to gather evidence, if such evidence manifests itself, on the narrow range of whistleblowing communications that may warrant protection from disclosure. This would be done in consultation with Members of both Houses. I think both Senators are particularly interested in communications with Members of the Oireachtas. I would welcome in particular the input of Senators as part of that consultation process.

In plain English, I do not want to put a lacuna in this legislation to address an issue that may or may not arise. Instead, I ask the House to give this Bill a year because we are going to review it after a year. If any such issue arises, we can craft a bespoke solution to the problem that actually arises, as opposed to accepting a solution that, on the face of it, creates an ever bigger problem than one which might potentially arise in this narrow area of whistleblowing.

I am strongly advised that this approach, which involves living within the Bill for an initial period before deciding on a specific amendment in this area, is supported by the Chief Parliamentary Counsel. It would enable evidence to be collected to focus any amendment or regulation that might be required on the particular type of communication that may necessitate the enactment of protection, rather than having a broad amendment which, as I have said, in the view of my advisers, in the view of the Chief Parliamentary Counsel and in my view would actually do harm to what we want to achieve here.

I am taking seriously the point that has been very well made by the Senators. The strong advice I have received is that this is very unlikely to arise. If it does arise, we would have to address it in a way that addresses the manifestation of its need in the course of the actual implementation of an Act. I hope the Senators will give the legislation the space to do that over the next 12 months. If an issue that needs to be addressed arises within the first 12 months, or in a review 12 months after that, I assure the Senators that it will be addressed.