Alice-Mary Higgins (Independent) | Oireachtas source

In their report for the committee, the National University of Ireland, Galway, NUIG, experts expressed the view that granting a right not to accept anonymous disclosures would create a danger whereby an employer could justify not acting in cases where serious and dangerous wrongdoing has been reported because the report was anonymous. If, for example, there were to be an anonymous report of the release of toxic materials or of very significant financial wrongdoing, the employer, under the legislation, would not be required to accept that report. There are measures whereby if a report is not valid or does not have substance, it does not need to be followed up. The Bill as drafted, however, will mean the employer will not even have to accept the report, and that is an unacceptable level of deniability and avoidance of potential liability or follow-up action.

As I said, the NUIG experts speaking during pre-legislative scrutiny made clear this was not in line with international best practice from the UK, the United States, the OECD, Transparency International and the Department of Public Expenditure and Reform's own guidelines. Recommendation 20 from the committee stated there should be a legal requirement to accept anonymous reports of breaches and then to determine the follow-up on the same basis as that for other disclosures. This is about ensuring people who feel they need to make an anonymous disclosure will be treated fairly but, more important, when people make these disclosures, it is not someone applying for something. They are not getting anything or looking for something for themselves. Without the amendment, the Bill will raise the bar.

Protected disclosures are not an application process for a job. It is a very risky, often personally dangerous, step people take when they make disclosures. We have seen a litany of examples of the costs incurred to individuals. Where they raise issues of public concern, the substance of those issues should be the central focus in determining whether action should be taken, not whether the person has made himself or herself appropriately vulnerable by tagging his or her name to it. Again, these are not individuals seeking something for themselves but rather they are raising a red flag and highlighting an issue. That a bar of vulnerability will be required before somebody could flag an issue will create cases where matters of serious public concern and possibly of public danger are not alerted because the bar will have been raised such that employers will be able to ignore the concern.They will see in the Bill that raising it anonymously does not guarantee that it will even be accepted, let alone be looked at. That is a concern. That is a danger in the Bill that has been highlighted strongly. There is evidence to show that the way the Bill deals with this is inadequate. It is a concern that may prevent people from disclosing serious wrongdoings.

Amendment No. 6 is based on the conversations that I have had with officials. These were conversations that I had in good faith, believing that the Government was looking to see how it could strengthen and improve the Bill. The point was made that people can make a disclosure through the protected disclosure commissioner. However, many people will not be aware of that fact. I have asked about it. I genuinely believed that we had some agreement. Even in the Chamber, the Minister of State seemed to acknowledge the validity of the point. If a person is not going to accept an anonymous report themselves, he or she should at least make every due effort to ensure that the person who is making the disclosure is aware that he or she can make that protected disclosure directly to a commissioner.

This is a signposting mechanism. The Minister for Children, Equality, Disability, Integration and Youth, Deputy O'Gorman, recently took it on, in relation to the Birth Information and Tracing Bill 2022. In that Bill, there was the idea that where information would not be provided, persons would be provided with a signpost to the correct channel whereby they could seek redress or information. Amendment No. 6 is a similar signposting amendment. It relates to where a person receives an anonymous report but does not want to accept it. It says that they should, where it is possible to do so, for example, in the case where they have received an email, "respond to the reporting person and inform them of their right to make a protected disclosure to the Commissioner.”."

This is a signposting amendment. It is a very low ask. I would ask that the Minister of State would accept it. It would simply say that if persons are not accepting the disclosure, where it is possible to do so, because it will not always be the case, they make reasonable efforts to direct the person towards the other channel for making a report that may be available to them. That is a minimum. This is not the case of an individual who is losing an opportunity that this is weighing against a report being considered. These are unknowable matters of public concern that the Minister of State is weighing against a person not processing, or to consider processing, an anonymous complaint. The scales are heavily tipped towards us in considering matters that are made as protected disclosures.