Ossian Smyth (Dún Laoghaire, Green Party) | Oireachtas source

I am pleased to present the Bill to the House. This Bill provides for significant enhancements to the statutory framework for the protection of whistleblowers in Ireland. It updates the Protected Disclosures Act 2014 to provide for the transposition of the EU whistleblowing directive into Irish law, the establishment of a new office of the protected disclosures commissioner and to strengthen and clarify a number of areas of the 2014 Act where issues have arisen since enactment.

There can be no dispute about the importance of providing robust statutory protections for whistleblowers. Freedom of speech, including the freedom to speak up about wrongdoing without fear of retaliation, is the one of the cornerstones of an open, fair and democratic society. We are all aware of a whole range of matters of vital public interest that would not have come to light were it not for the bravery of those who spoke up. Sadly, there are still too many instances where raising a concern has come at a great personal cost to whistleblowers and their families. This Bill represents a big step in the right direction in this regard.

The Protected Disclosures Act was innovative legislation for its time. When it was enacted in 2014, Ireland was only the sixth country in the EU to introduce comprehensive legislation for the protection of whistleblowers. The Act remains highly regarded internationally as one of the strongest laws of its type in the world. Many of the provisions of the EU directive are in place in Ireland courtesy of the 2014 Act. The Act provides for multiple channels to report wrongdoing so that if one channel fails for any reason, there are other options for workers to speak up in safety. The Act also prohibits any form of retaliation against a worker who makes a protected disclosure and provides protection from any civil or criminal liability for any disclosure of confidential information necessary to report a wrongdoing.

The directive goes a number of steps further, however. It significantly widens the scope of persons entitled to protection for speaking up. It requires medium and large enterprises to establish formal internal reporting channels for their employees. It sets out very clear steps that must be taken within clear timelines in respect of following up on all reports that are made. All of these changes are to be welcomed as they will further strengthen our legislation and ensure that Ireland remains a leading country in terms of the legal protections we provide to whistleblowers.

The publication of the initial proposals for the EU directive coincided with the statutory review of the 2014 Act, which was published in 2018. A decision was taken at that time that any recommendations for legislative change would be addressed during the transposition of the directive and this is what we are doing. Development of the legislation has also been informed by the public consultation on the transposition held in the summer of 2020.The statutory review found that the 2014 Act was broadly operating as intended but a number of implementation issues were identified. A key finding was the need for clearer direction for recipients as to what to do with the reports they receive. The new requirements in this regard, arising from the directive, go a long way towards addressing this.

The statutory review also raised significant concerns about how disclosures made to Ministers under section 8 of the Act should be handled. The Bill proposes a number of changes to the operation of the ministerial channel to address these issues, and the concerns raised in the third interim report of the disclosures tribunal. Key to this is a proposal in the Bill to establish a new office of the protected disclosures commissioner who will, among other things, take on responsibility for directing reports to the most appropriate persons to address the matter concerned. This will ensure an independent and thorough follow-up of all disclosures made to Ministers. The commissioner will also take on the role of a prescribed person of last resort, ensuring there is always an independent external person for workers to report to, if needed. This role will be taken on by the Ombudsman. This is in line with trends in other jurisdictions where national ombudsmen have been given similar responsibilities in this area.

The general scheme of the Bill was published May 2021 and the Oireachtas Joint Committee on Finance, Public Expenditure and Reform, and Taoiseach, published its pre-legislative scrutiny report in December 2021. The committee, which includes a number of Members from this House, clearly put a significant amount of time and effort into hearing submissions from witnesses and into preparing the report.

The pre-legislative scrutiny process has proved very valuable in bringing all parties together in supporting the development of the Bill. This will be a model for how the pre-legislative scrutiny process adds value to the legislative process. I commend all members of the committee in this regard.

The Bill was published in February 2022, and it took on board many of the recommendations in the pre-legislative scrutiny report. On Committee Stage in Dáil Éireann, a number of amendments to the Bill were made to implement a number of outstanding recommendations from the pre-legislative scrutiny report. These included: a provision allowing persons who made protected disclosures prior to the coming into force of this legislation to request and obtain feedback on the actions taken or envisaged to be taken on foot of their disclosures; a provision allowing reporting persons to request and obtain further feedback at three-month intervals, in addition to the initial feedback required under the directive; an amendment to the conditions for reporting to a prescribed person under section 7 of the principal Act to ensure no conflict with a non-regression clause in Article 25.2 of the directive; a provision requiring that when a prescribed person or the protected disclosures commissioner needs to transmit a report to another prescribed person for action, that this be done in a secure manner and in accordance with data protection law; a provision requiring that a statutory review of the legislation be carried out five years after enactment; and a provision for the protected disclosures commissioner to make an annual report on the operation of the legislation. All of these amendments arose from the recommendations in the pre-legislative scrutiny report, or from suggestions made when the Bill was debated in Dáil Éireann.

I will now turn and main provisions of the Bill. As this is amending legislation, some sections need to be read in conjunction with the principal Act, which is the Protected Disclosures Act 2014. Some sections of the Bill are also quite technical, and in this regard I will make my officials available to any Member if any further technical briefing on this Bill is required.

I will outline the Parts of the Bill. Part 1, comprising sections 1 to 3, inclusive, contains a number of standard legislative provisions concerning the Short Title and commencement and, as amending legislation, identifies the Protected Disclosures Act 2014 as being the principal Act being amended.

Part 2 comprises six chapters, each of which in some way amend or extend the principal Act. Chapter 1, comprising sections 4 to 7, inclusive, sets out the scope of application of the legislation. Of particular note in section 4 is the amended definition of "worker", which provides for the expansion of the scope of the Act to include volunteers, board members, shareholders and job applicants, as these are required by the directive.

Section 5 is a standard provision concerning the making of orders and regulations under the Act. Section 6 amends the definition of a "protected disclosure" to explicitly cover any breaches of the EU laws specified in the directive and for the insertion of a new section 5A into the Act, which provides that the Act does not apply to personal employment grievances, in order to address last December's ruling of the Supreme Court in the Baranya case.

Section 7 provides that persons who make anonymous disclosures are still entitled to the protections of the Act if their identity is deduced and if they suffer retaliation.

Chapter 2, comprising sections 8 to 13, inclusive, concerns the design and operation of internal and external reporting channels to employers and prescribed persons. Section 8 provides that private sector entities with 50 or more employees must establish formal whistleblowing channels. A derogation until December 2023 is provided for medium-sized enterprises with between 50 and 249 employees. This section also provides that the Minister can lower this threshold in certain sectors where there is a high risk of serious wrongdoing, if required.

Section 9 sets out how the internal channels should operate and requires that all reports be acknowledged within seven days, the manner in which reports should be followed up, and that feedback be given to the reporting person within three months. These rules are at the core of the directive and, therefore, are restated and reaffirmed throughout the Bill.

Section 10 similarly requires prescribed persons to establish reporting channels for workers in the sectors they regulate and section 11 provides, again, that prescribed persons must acknowledge, follow up and give feedback to reporting persons in respect of the reports they receive.

Section 12 concerns reports made to Ministers of the Government and sets out new conditions for making these reports. It requires that Ministers shall transmit all reports they receive to the new protected disclosures commissioner.

Section 13 amends section 10 of the principal Act and sets out new conditions for the making of public disclosures. These conditions are significantly simplified compared with the original provision in the principal Act.

Chapter 3 concerns the office of the protected disclosures commissioner and comprises sections 14 and 15, inclusive. Section 14 inserts six new sections, sections 10A to 10F, inclusive, into the Act after section 10. Section 10A provides for the establishment of the new office of the protected disclosures commissioner in the Office of the Ombudsman. Section 10B provides for the commissioner to have formal channels and procedures for handling disclosures in the same manner as apply to prescribed persons.

I can continue or come back in later.