Alice-Mary Higgins (Independent) | Oireachtas source

I move amendment No. 28:

In page 23, between lines 25 and 26, to insert the following: “Amendment of section 8 of Principal Act

12. Section 8 of the Principal Act is amended by—

(a) the deletion of “and” in paragraph (a), and

(b) the insertion of the following paragraphs after paragraph (b):

“(c) the making of a disclosure is in the public interest, or

(d) the worker reasonably believes that their own manager or the head of the public body concerned is complicit in the relevant wrongdoing concerned.”.”.

This relates to a substantial issue of significant concern. It relates to an issue we have discussed previously and will discuss later, that is, consideration of Article 25.2 in the context of the commitment that there should be no regressive steps in terms of protections for whistleblowers. Many persons - not solely whistleblowers but also experts in transparency, accountability and governance – have strong concerns that the changes under the Bill to section 8 of the principal Act will constitute a regressive step. There are concerns in respect of the fact that it will become more difficult for persons, both whistleblowers and civil society, to make a disclosure directly to a Minister. That has significant implications for those seeking to make a disclosure and in terms of public accountability.

Amendment No. 28 is probably the largest change option. The Minister will see that I have tabled a couple of substantial suggested amendments and I have also suggested a few changes. I fundamentally believe we should be going for a bigger change on this but I have tried to come up with a few smaller proposals that would ameliorate slightly some of the concerns. Amendment No. 28 would return to the original section 8. Under the new section 8, it is proposed that public servants will be required to report to their employer in most circumstances, removing the automatic right of public servants to make a public disclosure directly to the Minister. This could involve issues of significant local or national concern that should be allowed to be disclosed directly to a Minister.

We know that many of the whistleblowers who are motivated to make a disclosure do so out of public concern and for the public interest, at great personal cost. There should not be a wrong door in terms of those making this disclosure. This is not people applying for something or seeking to gain something; it is people who are bringing and offering something in public service for the public good. They should not face a situation in which they find themselves excluded from the provisions or protections of the legislation or discouraged from proceeding in highlighting an issue that may be of great public significance.Transparency International Ireland has cited a number of concerns about the new section 8. The amendment would delete the new section 8, and return to the previous section 8, while adding two small elements from the new section 8 that I believe are progressive, one being the deletion of "and" in paragraph (a) and the insertion of the provisions after paragraph (b) to include categories where: "the making of the disclosure is in the public interest" or "the worker reasonably believes that their own manager or the head of the public body concerned is complicit in the relevant wrongdoing". The reference in the Bill is to "the head of the public body", and I will address the issue of the manager later. The point is that it keeps it as is, where a person has the right to make a complaint to the Minister, but specifically names the issue of public interest within the previous version of section 8.

Amendment No. 31 is a technical amendment that relates to the other amendments. Amendment No. 33 seeks to improve the provisions in the current Bill. At the moment, there is a provision whereby a worker may go directly to the Minister if he or she believes that the head of the public body he or she works for is complicit in the wrongdoing concerned. For many public servants, especially in very large public bodies with multiple branches and iterations, the head is often a very far distance from people, but what does act as a chilling effect is how people feel about making a disclosure to their own manager. This amendment would allow the same exception, whereby a worker who believes the head of the public body is complicit in any wrongdoing concerned. We must bear in mind the significant penalties that we have for people who make disclosures based on false information. People must be very careful, and they will be very nervous. They may not ever have met the head of the public body concerned. Many people will be in a situation where they believe their own manager or their manager's manager are complicit in wrongdoing and that in itself should be sufficient for a person not to have to take up an internal channel within a public body but to be able to go directly to a Minister. If a person does not have confidence in the manager closest to him or her to be someone who can be honestly and properly trusted in regard to an issue of wrongdoing, it is a lot to ask of him or her that he or she would assume that the managers above the person, who presumably promoted the person, are going to necessarily give them fair treatment. Again, that is often in light of a situation where they may never have met the head of the public body or the senior staff. In that context, the provision that refers to the head of the public body is too limited a power. It should be simply sufficient that if a person is concerned that his or her manager is complicit in a wrongdoing of public concern or if a person wants to highlight an issue as an act of public service, he or she should be able to contact the Minister about it.

For clarity, the new section 8 is section 12. Amendment No. 34 relates to the circumstances in which a worker can bring a report directly to the Minister. It should simply be sufficient that a worker did not feel confident to make a report under sections 6, 7 or 8 due to a reasonable fear of penalisation. Again, we must bear in mind that whistleblowers are not people that we are giving things to or who are asking for things. They are people who, through their own goodness, are bringing important information to light and highlighting an issue of public concern. There should be every mechanism to make it possible for them, rather than any sense of an obstacle. That should be the case, especially since we know, although I will not go into, the litany of penalisations that people have experienced. The very fact that we have provisions in this Bill on penalisation, even though they are inadequate, points to the fact that penalisation is a known factor. There is a reasonable fear of penalisation. It may simply be that a person saw other people getting fired and he or she did not know why. Whatever it might be, if a person has a reasonable fear of penalisation, that should be sufficient grounds for him or her to go directly to a Minister. These are workers, but they are not seeking restitution through HR on employee issues. They are acting as citizens and, as citizens, they should be able to go to the Minister who represents them and say they are highlighting this issue from their experience as workers. They should not have to navigate an internal channel if there is a reasonable fear of penalisation.

Amendment No. 35 is prompted by my belief that the language sets an excessively high bar. We could talk about a chilling effect in respect of the bar that is placed here. The public interest, straightforwardly in itself, should be enough of a ground for a person to go to a Minister, but currently the bar in that regard is so high and specifies that is only possible where the relevant wrongdoing may constitute "an imminent or manifest danger" to the public interest, such as where there is an emergency situation or a risk of irreversible damage. I do not know why we are raising the bar so incredibly high here, because that has a chilling effect. I urge the Minister to accept my two amendments in this regard. One would simply remove the phrase "imminent or manifest". It should be sufficient that there is a danger to the public interest. Ministers are not simply there to firefight the emergency. The point is that there is a danger to the public interest and a worker has identified it. What constitutes "imminent"? Is it a month, six months, a year or ten years? If there is a danger to the public interest, that should be enough. Ministers deal with the public interest all the time and most of the issues they deal with are not imminent and manifest; they are part of trying to do things better and to fix the country. On that basis, if there is something that could help, it should be sufficient if an issue is relevant to the public interest. It would be preferable to keep the phrase "danger to the public interest" because putting those extra adjectives in is excessive, similar to an emergency situation or irreversible damage. Are we just saying then that is okay if there is a problem and it is going to have a terrible consequence because we might be able to fix it later and that the Minister should not be told or that it should go through some other channel? Frankly, we have all spent too much time fixing problems. I do not know anybody of any party who likes fixing problems after the fact. "Irreversible damage" seems to me to be an extraordinarily high bar when in fact prevention is always better than cure.

I have two more amendments to address in this large grouping. Amendment No. 39 is intended to make sure that when the Minister or the head of a public body receives a protected disclosure, which is outside the remit of the Department or public body, he or she might consult with the protected disclosures commissioner and with the permission or consent of the reporting person, transfer the report to the relevant Minister or the head of the public body. This is intended to make sure that reports reach the right people and that whistleblowers are not lost in the system when their concerns are being addressed. Someone may go to a Minister because he or she is the Minister in his or her geographical location. They might go to a Minister because he or she is in Cork, Galway or Limerick and the Minister may want to transfer the matter to the line Minister or the public body. What is important is that the Minister would check with the person who has made the disclosure because there may also be reasons somebody has not gone to the line Minister. In terms of the public body in particular, I know multiple examples, but I will not cite them individually.There have been situations in which persons have made a protected disclosure and the complaints they made have been directed right back to the desk of the person about whom they made the disclosure. In effect, decision-making power on what to do about a disclosure is being given to the person who is its subject. Sadly, there are a few instances in which we can point to that having happened. It is important that if people take a different channel, that is, going to a Minister, they do not find themselves in that situation. That is why communication with the person making the disclosure prior to the forwarding of that disclosure is appropriate.

I hope the Minister will engage with us on these proposals. The general concern is a wider one, which relates to Article 25(2) of the GDPR. These amendments provide specific measures to improve the section.