Alice-Mary Higgins (Independent) | Oireachtas source

As the Minister of State outlined, the context of this legislation is the transposition of the EU whistleblower directive and the amendment of the Protected Disclosures Act 2014. There are many positive elements within this legislation but there are also concerns. Given that we are entering the period of legislative scrutiny, I will highlight some of the concerns.

I know Transparency Ireland will have contacted the Minister of State outlining its belief that there are elements in the way and manner that the transposition of the directive is proposed in the current Bill, which could directly or indirectly weaken some of the existing protections for Irish whistleblowers. That would be in violation of Article 85.2 of the EU whistleblower directive. There is a requirement under the whistleblower directive for a progressive strengthening of protections whereas there are certain components within the legislation, as proposed, that could constitute a weakening, again, either directly or indirectly. Therefore, we really hope that as the legislation goes through the Seanad, this can perhaps be addressed and strengthened so that we are not putting forward legislation that could face legal challenge either in Ireland or the European courts.

There are a few core areas in terms of weakening this, one of which is the limitation or removal of the right to make protected disclosures directly to a Minister. The standard for the legislation to protect under section 8 is reasonable belief. Under section 8, it is proposed that public servants would be required to report to their employer in most circumstances, thereby removing the automatic right of public servants to make a public disclosure directly to a Minister. Again, we have the danger whereby disclosures are getting captured within the hierarchy of an employment system and, indeed, within the power dynamics of that system, when it may be an issue of quite significant national concern that should be allowed to be disclosed directly to a Minister. This also dilutes existing legal protections for public servants in terms of prosecution, penalisation or detriment if they choose to make a disclosure directly to a Minister. The danger is not just in terms of that route not being open, therefore, but that many people will not be aware there are a set of steps they need to have taken. As we have heard very eloquently across this House, many people who are motivated to make a disclosure in this regard do so out of public concern and for the public interest. In doing so, and there are other measures within this Bill, they should not face a situation whereby they effectively find themselves excluded from the provisions and protections of this legislation. Many of them will never read this legislation. They will see an issue in their area of expertise or area of concern and look to highlight that to the person they see as the key decision maker. Therefore, it is a real concern if, effectively, those who go directly to a Minister may end up not activating the protections under this legislation and somehow fall outside the loop.

Another very significant concern is the exemption in terms of relevant organisations accepting anonymous disclosures. At the moment, there is an exemption for organisations for an obligation to accept or follow up on disclosures that are made anonymously. Again, it allows that the recipients may do so if they give appropriate notice but that requirement is really a big get-out clause in having to follow this up.

I will point out that the 2014 Act did not say anything about anonymous disclosures. The current legislation explicitly states that anonymous disclosures can be disregarded. That is a regressive step and, again, brings us back to that concern around Article 25.2 of the EU directive. It is a really important issue because this is not to say every single anonymous disclosure needs to have a full investigation. There are already filters and mechanisms within the Bill whereby if a disclosure is made, there is an examination as to whether it is, in fact, relevant under the Protected Disclosures Act and whether it merits an investigation and so forth. The point is that the Bill at the moment basically allows for a summary disregard, so the issues that have been raised anonymously do not have to be thought about at all rather than examining the issues on their merits, which, bear in mind, are issues for the public concern - they are not issues for the individuals involved. The issues should basically just be examined and then organisations can say they have been told about this concern and they can see if that is a valid issue. If it is, they can proceed through the process as such. In fact, it is an immediate get-out clause and, again, we know the levels of penalisation that have been experienced by whistleblowers. People should not have to choose, as many whistleblowers have had to do, between their personal well-being, the next ten years of their life and what that will look like, the security of their family and doing something they believe to be in the public interest or that raises a flag of concern. I am really worried about that provision with regard to a summary right to disregard anonymous disclosures.

I am also concerned about the interpersonal grievances piece because I think there is a blurring of the line. Yes, of course, we need to guard against the blurring of the line but we also know there are situations where people who complain, and who many times will complain long before they make a protected disclosure, can be targeted within their workplaces. Therefore, they may well have interpersonal grievances or be subject to grievance procedures or other actions from, for example, a manager against whom they have complained or challenged at the same time as they may also wish to make protected disclosures. It is really important that it is made clear that if it is an interpersonal grievance, then it is not a protected disclosure, because at the moment it is very vague. It needs to be made very clear to people that they can do both. At the moment, there is a danger of a chilling effect on protected disclosure for anybody who may separately be involved in an interpersonal matter with his or her employer.

There are quite strong criminal sanctions for false reports. There are not similar sanctions for false information with regard to those against whom a complaint is being made.

Finally, there is another really big issue, which has been discussed, about retrospective complaints. In a way, I do not even like using the word "retrospective" because for many of those who have been involved in these processes, I would regard them as being current procedures. The effects and impacts they have suffered in terms of penalisation are ongoing. Many of them, in fact, have never received anything in terms of payments in respect of penalisation or other payments. They basically never had that.Many of them have never received information about what the resolution or outcome of the disclosure they made was. I would regard a large number of those past protected disclosures as current protected disclosures and I believe these people should be entitled to any protections, measures or compensation available under this legislation. When we look to the people who have done that public service, it is vital that that be reflected and that they be included. It is retrospective in terms of when someone made the disclosure but the process, the penalisation and the lack of resolution is ongoing. This legislation is a chance to address that. I also support the points made by Senator Sherlock about the threshold of 50 employees. Someone could have a very small company, sometimes a brass plate company, and that company may be the window into quite a significant issue of public concern.