Michael McGrath (Cork South Central, Fianna Fail) | Oireachtas source

I thank Senators Higgins and Ó Donnghaile for their contributions on what I acknowledge is a substantive issue in the Bill. The issue was raised a number of times over the course of the debate in Dáil Éireann. I will set out our thinking, rationale and the background to what is proposed in the relevant provisions.

These amendments provide for the deletion of section 8(2)(b) of the principal Act, as amended. Section 8(2)(b) provides that a worker employed by a public body can only report to a Minister if he or she reasonably believes the information disclosed in his or her report, and any allegations contained in it, are true. I have looked again at this provision on foot of amendments proposed by Deputy Mairéad Farrell on Report Stage in the Dáil and representations made to me by Transparency International Ireland. The intent behind the amendments the Bill proposes to section 8 of the principal Act is to provide that a public sector worker should report in the first instance either to his or her employer or to a prescribed person before he or she reports to a relevant Minister. If, having made such a report to his or her employer or a prescribed person, the worker reasonably believes no action or insufficient action has been taken, there should be no further impediment to his or her reporting to a Minister. However, section 8(2)(b), as provided for in the Bill, requires that the worker must reasonably believe the information reported is entirely true. This imposes an additional test for reporting to a Minister on top of the criteria the worker is required to fulfil to report to his or her employer or to a prescribed person. This is not in line with the policy intent and, for this reason, I am proposing the provision be deleted.

I do not propose to accept amendments Nos. 28, 31, and 33 to 39, inclusive. Amendments Nos. 28 and 37 would remove or nullify the criteria to report in the first instance to either the employer or a prescribed person before reporting to a Minister. As Senator Higgins acknowledged, the Bill provides a number of qualifiers to the criteria to report in the first instance to either the employer or a prescribed person before reporting to a Minister. These qualifiers include where the worker reasonably believes the head of the public body is complicit in the wrongdoing or where there is a manifest danger to the public interest. I acknowledge the comments Senator Higgins made in regard to the specific wording.

Amendments Nos. 31 to 36 widen the qualifiers to such an extent as to dilute significantly the requirement to report in the first instance to either the employer or the prescribed person before reporting to the Minister. This is not in line with the policy intent. The operation of the ministerial channel has been one of the most challenging areas of implementation of the principal Act. The intent behind the provision of a ministerial channel under the Act was that in the event that a public body failed to deal properly with an internal report, a worker in that public body would have the fallback option of reporting to the Minister. In practice, there has been a tendency for reporting persons either to go to the Minister first or report simultaneously to both their employer and the Minister.

The practice of simultaneous or near-simultaneous reporting through different channels was raised as a concern by the disclosures tribunal, which recommended that the Oireachtas consider amending the legislation such that when a report is made, the initial recipient is afforded a reasonable amount of time to take action before the reporting person moves on to an alternative channel. Furthermore, Article 7 of the whistleblowing directive requires member states to encourage reporting internally in the first instance. The introduction of a requirement that the reporting person should report using one of the other channels first is intended to address this issue, which will transmit disclosures to appropriate bodies for assessment and follow-up. For these reasons, I do not accept the amendments.

I am not clear on the purpose of amendment No. 38. It proposes to make provision for reports made to Ministers other than through section 8 of the principal Act, which deals with the ministerial channel. There is no other legislative provision through which Ministers can receive reports other than through section 8. Ministers cannot receive reports through section 6, which provides for the internal reporting channel, or section 7, which provides for the external reporting channel to prescribed persons. Accordingly, I cannot accept this amendment.

Amendment No 39 provides for Ministers and heads of Departments to seek the view of the protected disclosures commissioner when they receive a report that is outside their remit. The Bill provides for reports made to Ministers to be transmitted to the commissioner, who will then transmit them to a prescribed or suitable person for follow-up, as required. That suitable person may well, in the view of the protected disclosures commissioner, be the Minister, in which case it will come back to the latter to deal with it. Heads of Departments can already transmit to a designated person in another body, where that is required for follow-up, within strict confidentiality requirements. An additional requirement on heads of Departments to consult with the protected disclosures commissioner in every instance where a report is not within their remit would result in an unnecessary increase in the administrative burden. There is nothing in the legislation to prevent heads of Departments from consulting with the protected disclosures commissioner as required. I cannot accept this amendment.

The thrust and purpose of what we are seeking to do in these provisions is to improve the existing process. It is fair to say that process is not working for all parties, including whistleblowers. We need a clear process in terms of where protected disclosures should be going and where and by whom they should be dealt with. In some instances, they will continue to come to the Minister, who will then transmit them to the protected disclosures commissioner and the latter will independently make an assessment as to who is the most appropriate person to deal with that disclosure. It could be somebody in the employer body, a prescribed body or the Minister. Ultimately, the protected disclosures commissioner will make that judgment call. We are seeking to put a structure and process in place in this regard. In my view, the current system is not working as well as it should in respect of this channel.