Alice-Mary Higgins (Independent) | Oireachtas source

I am a little disappointed. We had a good discussion with the officials and I hoped that the Government would table amendments on Report Stage. There had been some recognition that valid issues and concerns were raised. I always prefer if the Government takes matters on board and brings forward its own proposals on issues. Since I do not see Government amendments, I hope it will take on board some or all of the constructive Opposition amendments that have been tabled.

It has been highlighted that the interpersonal grievance provisions in the Bill create not just ambiguity but danger. There is the danger that persons who may have experienced bullying or harassment, or who may indeed have matters that are interpersonal grievance matters, may believe that because they are in that process, they do not have the option to bring forward a protected disclosure. They may be told that and would not see anything in the Bill that would contradict that.

The more serious danger is that, where if somebody has raised and highlighted matters of public concern that might in future become part of a protected disclosure, we might create a perverse incentive for a manager or employer to bully or harass people or push them into a position where they are part of an interpersonal grievance process and therefore feel they are constrained. We know the intense levels of personal harassment, penalisation and bullying that have taken place with regard to whistleblowers. We should not have anything in the Bill that potentially rewards or encourages that. I have been assured that people can still make protected disclosures while they are undergoing a personal grievance process, but the Bill does not signal or inform people of that. It sends a contrary signal. I worry about the message it sends to the worker and to a manager or employer who may be engaged in wrongdoing. There are two distinct dangers.

Amendment No. 1 from the Sinn Féin Senators seeks to address this issue. I have tabled three amendments that seek to address it in different ways too. I will go through them briefly. Amendment No. 2 is an alternative to the previous amendment and would add a new subsection to clarify that a matter concerning an interpersonal grievance would be a relevant wrongdoing where it happens because somebody makes a protected disclosure or a dispute has come about because a person has made a protected disclosure and been penalised for doing so. In its report, which I sat on during the extensive pre-legislative scrutiny, the committee stated that the inclusion of interpersonal grievance in the current way creates unnecessary risks that a legitimate protected disclosure of wrongdoing could be deliberately mischaracterised and miscategorised as being related to another matter. The Bar of Ireland also highlighted the dangers of a lack of a proper definition of "interpersonal grievances" in the Bill. Transparency International Ireland highlighted that the current wording could cause confusion.

Amendment No. 3 is related to amendment No. 2. It states, "The Minister shall, within 9 months of the passing of this Act, lay draft guidelines clarifying that engagement in a process relating to an interpersonal grievance does not preclude a person from making a protected disclosure.”,”. This is the other mechanism where this might be done. I always prefer for matters to be stated clearly in legislation but amendments Nos. 3 and 4 are secondary amendments. If this route, using guidelines, is taken, it is important that information campaigns relating to protected disclosures clarify that a matter of interpersonal grievance should not preclude a person from making a protected disclosure in parallel and that people do not have to wait for the interpersonal grievance process to finish before they can make a protected disclosure. Amendment No. 4 also relates to previous amendments. It seeks to clarify in the legislation, which is my preference for the avoidance of doubt, that an interpersonal grievance will not preclude a person from making a protected disclosure under any of the relevant sections of the Bill.

These are pragmatic proposals from me and other Senators that reflect issues highlighted in pre-legislative scrutiny and by the Bar Council of Ireland and Transparency International. There is a significant danger in the Bill and this could prevent it from working, and the issue was also discussed at length with the Minister of State's officials. I urge him to accept at least one of the ways of addressing this that we have put forward.