Marie Sherlock (Labour) | Oireachtas source

I thank the Minister of State for coming to the Chamber. I very much welcome this Bill. As has already been alluded to, the Government is late in transposing the directive. The Joint Committee on Finance, Public Expenditure and Reform and Taoiseach carried out really good pre-legislative scrutiny of the Bill, however. I understand that the Minister of State has signalled in the Dáil that he is very much open to amendments proposed in the Seanad. That is to be welcomed. I will put on the record that we owe great thanks to a number of groups that came before the committee during its meetings on the pre-legislative scrutiny. I refer to Transparency International, the Irish Council for Civil Liberties, the journalist Mick Clifford and others who contributed.

Any of us who have dealt with, advocated for or represented people who hold information about wrongdoing will know the frustration and the enormous personal, physical and mental toll those individuals and their families face in trying to vindicate their allegations, protect their own integrity and, ultimately, protect the public interest, or a private interest, as the case may be. The broadening and deepening of the scope of this Bill is very much to be welcomed. It is very important that Senator Clonan is here in the Chamber. I am delighted to have him as a Senator and I look forward to his contribution because listening to personal experiences is extremely important.

It has already been said that Ireland is one of a small number of countries that has legislation in this space. Of course, it was my colleague, Deputy Howlin, who brought forward the legislation in 2014. I am glad that we are updating and reforming that legislation now. I will talk about some of the concerns in a second but first I will note that it is positive that we are seeing the protected disclosure legislation extended to unpaid trainees, volunteers, shareholders, board members and job applicants. These are people who may be on the margins of organisations but still very much part of them. It is also positive that we are putting in place more defined timelines and that a protected disclosures office is to be established. I have dealt with two cases of protected disclosure. Any of us who has personal experience of dealing with individuals who have lodged a protected disclosure or who have listened to Michael Clifford will know of the exceedingly and excruciatingly long time it can take for a protected disclosure to be processed. I was struck by something Michael Clifford said, which was that it was only when he published information surrounding a protected disclosure that an investigator was appointed, often after the investigation having been delayed for months or longer. In that respect, establishing a protected disclosures office is really important.

Others have mentioned the need to resource that office. That will be absolutely crucial given the public agencies and Departments that new office will be up against. I am struck by one case in particular I know of in which the buck has effectively been passed between two Departments. They both have responsibility for this particular issue but neither is willing to take it on. This new office is going to come up against very powerful forces so we need to see it adequately resourced when it is established.

With regard to concerns about the Bill, an issue that came up as very important during pre-legislative scrutiny, and which also came up in the Dáil, is the issue of retrospective application of the Bill for investigations that have been commenced but left uncompleted. The very nature of many of the protected disclosures is that they have been left hanging for a long period. I am reassured that the Minister of State is going to table amendments in this regard in the Seanad. We look forward to the detail of those. It is really important that we see as wide a scope as possible with regard to that retrospective application.

My second main concern relates to the organisations to which the provisions will apply. I have read the arguments justifying the minimum threshold of 50 but I must say that I do not buy them. It is important to say that the responsibilities imposed by the Bill are to ensure that a process is in place for an event which is usually rare but which is very important. There seems to be a presumption that the making of a protected disclosure is very common or frequent but we know that it is not. There are many people who decided previously not to make a protected disclosure when they should have but, by and large, this is not an everyday occurrence. When we talk about the costs to businesses, we need to put things in perspective. Particularly for smaller organisations, it is precisely because they are more informal and less structured that the potential for victimisation and penalisation is all the greater, as is the deterrent to making a protected disclosure.It is for that reason we need to have formal processes in place in all organisations and that staff are made aware of them. I am struck because Transparency International talks about how only 30% of private sector employers have some sort of process in place. To me, it is not necessarily about the process itself; it is about the clear message that is sent to every member of staff that there is a facility to be able to lodge a protected disclosure if they see wrongdoing. It has been said that the absence or presence of an internal process does not diminish a worker's right to report wrongdoing. I recognise that there is a distinction between the right of a worker to report versus the mandated responsibility of a firm to have systems in place but again, we must go back to what kind of message is sent if there is no formal process in place within an organisation.

I also note that four sectors have been expressly excluded from that minimum threshold provision. It is too narrow. I do not think it is good enough that we name some sectors and then say we are going to take a risk assessment in the consultation with regard to others. I would like to see evidence as to why a professional services firm like an accountancy firm has to be treated differently from, let us say, a financial services firm. I would very much urge the Minister of State to broaden that list and ensure it is hardwired into the legislation.

The last issue I want to raise in the few seconds available is the lack of civil legal aid to whistleblowers. Many of us on the Joint Committee on Finance, Public Expenditure and Reform, and Taoiseach are very frustrated by the cap on compensation for penalisation. We know that a person who takes his or her case to the higher courts does so with a very significant element of personal risk. Given that a protected disclosure is being made in the public interest, which is why we have this legislation, and not in the personal interest, it is incumbent that we do as much as possible to ensure that we protect and look after those who have gone to considerable risk in making a protected disclosure.