Alice-Mary Higgins (Independent) | Oireachtas source

Whistleblowers and civil society groups have been very clear that they oppose the removal of the right to make a disclosure directly to a Minister. It has been strongly argued that there is a danger that this effectively falls out of line with the directive in that it represents a regressive move whereby there is a lessening of rights in a certain area for whistleblowers as a result of this legislation. Whistleblowers and civil society groups have highlighted that under the new section 8 it is proposed that public servants be required to report to their employer in most circumstances, removing the automatic right of public servants to make a disclosure directly to a Minister.

There is a danger whereby disclosures may be captured or disappeared within the hierarchy of an employment system and within the power dynamics of that system when it may be a matter of quite significant national concern that should be allowed to be disclosed directly to a Minister. It dilutes existing legal protections for public servants in terms of prosecution, penalisation or detriment if they have made a disclosure directly to a Minister. The fact that they have made a disclosure directly to a Minister means they may not have the same protections under this Bill. There is a danger therefore not just in terms of the route not being open but also that many people will not be aware of the steps they would have needed to have taken, and people may make what they believe to be a protected disclosure but not have the appropriate protections in place.

Many whistleblowers who are motivated to make a disclosure do so out of public concern and for the public interest. In doing so they should not face a situation where they effectively find themselves excluded from some of the provisions or protections of the legislation. Many of them will never read the legislation. They will simply know that the matter is important and they will decide to inform a Minister. It could be either a Minister directly responsible in that area or it might be the Minister as the senior representative of the Government in a whistleblower's geographical area who the whistleblower knows. They will go to our chosen elected decision makers at the highest level to highlight a matter that may be of public concern.When they see something that matters in an area of expertise or concern, they want to highlight it. There is a danger that persons who go directly to a Minister, having not gone to an employer, may not activate protections. Transparency International Ireland has highlighted concerns about this section, specifically that it may breach the non-regression clause in Article 25.2 of the 2019 directive and that that marks a step backwards in protections for whistleblowers. Transparency International Ireland has written to the Minister of State on this and has outlined that whistleblowers will continue to report directly to Ministers. That will continue to happen regardless of what is in the legislation because it is established practice and precedent and because, when people make a disclosure, they are not acting as employees. It is not in their job description. They are doing so as citizens. Their awareness of the issue arises because they are workers and they are vulnerable to penalisation because they are workers, but raising the flag of concern is taking a step beyond anything that is required of them in their job. They are doing that as citizens. They go to those they have elected and those who are responsible at the highest level, who were chosen by the public as their public representatives and chosen by the Oireachtas as Governments and Ministers. It makes sense that people would go to a Minister. They will continue to do so but there is a real danger they will not have proper protections and that they will fall between stools so their disclosure does not get processed or a reason is given for why it was not properly accepted.

Amendment No. 9 would insert new criteria where someone can report directly to a Minister in certain situations. I have spoken about the general removal of that clause but these amendments are a result of engagement and listening very closely on Committee Stage. These are constructive proposals to ameliorate the damage of removing that direct line. I am disappointed the Government has not brought its own amendments on these matters because there are a number of practical proposals here, on some of which I thought we had made progress. Amendment No. 9 would simply introduce criteria stating people can report directly to a Minister in situations where they reasonably believe their own manager or the head of a public body is complicit in the wrongdoing. The bar for reporting directly to a Minister in this legislation is insanely high. People can report if they believe the head of a public body is directly involved in the wrongdoing. People working downstream in the HSE may never know the head of the organisation. They may never meet the head of the HSE or have any idea what he or she is doing. Employees in a Department may never know or be aware of the Secretary General, let alone be confident the Secretary General is involved in wrongdoing. What they might know, however, is their own direct manager is involved in wrongdoing or the person to whom they report is complicit in wrongdoing or a matter of public concern. They may be able to see that several layers of management are involved. They are not allowed go to the Minister unless they somehow have proof the head of the organisation is involved. That is too high a bar. These are very large bodies in some cases.

This is a sensible amendment. It simply states people can go to a Minister if their manager or the persons to whom they report are involved. If someone has no personal contact with their manager's manager, how can they have confidence in going to the manager's manager? They may be involved but the person just will not know. If the persons to whom an employee reports are involved in the wrongdoing, the employee should be able to go to a Minister. We should not have this extremely high bar of the head of a public body. If you know there is rot two levels up, you may assume it is further on, whether or not you know it. In that regard, it is too high a bar to limit that exception to the head of a public body. I ask that it be changed to the person's own manager. That fear of penalisation and consequences comes in, especially when reporting on a matter relating to your own manager.

Amendment No. 10 would allow a person to go directly to a Minister that if a person does not feel confident making a report under sections 6, 7 or 8 due to the reasonable fear of penalisation. Such a person may have seen consequences or penalisation for others who sought to flag the issue. They may have seen others lose their jobs because of it. Sometimes it is only after someone has lost his or her job that his or her colleagues learn why that was. If there is a reasonable fear of penalisation, people should be able to go directly to a Minister. This amendment does not remove all the issues but it would make the section less regressive and would give some additional protection to whistleblowers.

Amendments Nos. 11 and 12 relate to worrying, strange and undefined language in this Bill in the caveats around matters of public concern. Amendment No. 11 removes the phrase "an imminent or manifest" from before "danger". Surely if a matter is of danger to the public interest, that should be enough. Why are we adding that it must be imminent? What does imminent mean in this context? It is a case of how near is the comet? Does imminent mean something that will have effect next week, next year, in two years or in five years? Having a bar of imminent and manifest is effectively saying people should not bother the Minister with a matter that is just of danger to the public. It may be a matter that is substantially dangerous to the public. It may be a matter where we would like to get in as early as possible. Does a whistleblower need to wait until it is almost too late before he or she is allowed to raise an issue with the Minister? That is what the legislation says, rather than, as we should do and as is prudent, rewarding and encouraging early action as soon as the danger to the public is recognised and identified.

There are other examples of language in the Bill that is designed to intimidate and discourage persons from making disclosures to Ministers. That is the only way this can be read. It is dissuasive language trying to make people not come to Ministers with disclosures, meaning Ministers can say they do not need to take something on board. One example is the phrase "such as where there is an emergency situation or a risk of irreversible damage". The legislation is saying we are okay with damage. I do not know how this passes the Comptroller and Auditor General's standards as legislation. It is saying that if the issue is something that can be fixed later, even if that might cost money or if there may be casualties to a degree, if it is reversible damage we should let the damage happen and come back afterwards. It is only where it is irreversible damage, even though reversing that damage may have a huge public and human cost, that people can go to the Minister. It is extraordinary we are basically telling people not to bother the Minister with big problems if we can fix them later.This is really weird language and it should not be in the Bill. I have discussed this and raised it. When the other Minister spoke, he said he did not want to create anything that might result in a chilling effect. This language clearly will. Setting such a high bar really underscores the fact that this section is regressive and in breach of Article 25(2) of the EU directive in its measures.

When this was being discussed, what was highlighted again and again was that there had been a problem in the previous legislation whereby persons reported to the Ministers but there was no clear line as to what the Ministers would then do with those reports. There are other measures in the Bill that address that issue but, to be very clear, the problem was never the fact that persons made disclosures to Ministers but that there was no clear process to be followed afterwards. There is now a clear process.

Most people will make a disclosure to a Minister, the person who is politically responsible and who is their representative on matters of public decision-making. That Minister will then end up sending them a letter to say that he or she has referred their complaint to the protected disclosures commissioner, who will process it and then may send it on. If a person has made a disclosure to a Minister who is geographically nearby, that Minister may send it on to the commissioner who will then send it on to the appropriate Minister. There is a process there.

The problem was always what happens next. It does not mean that every Minister has to deal with disclosures. They can pass them on to the right person or body to be dealt with. However, they should be able to receive it. The problem was never receiving it. There is no case for making it so difficult to report to a Minister. It may well be that the Minister is not the person who processes the report but, as a receiving point, the Minister is a really crucial resource for any person employed as a public servant who cares about the public interest and who wants to raise an issue of danger to the public. To close off and limit that channel in the way this section does is an extraordinarily regressive and unnecessary step. It is dealing with a problem that does not exist because the problem was always what happens next. That is dealt with elsewhere. I am not trying to change that because it is being dealt with elsewhere. I again urge the Minister of State to consider and take on board these amendments.

I want to check that I have covered all of the grouping. Does it end with amendment No. 12 or with No. 13? It ends with amendment No. 13. I have not spoken to No. 13 yet. I will be very brief. This is again a simple amendment. It seeks to ensure that, where a Minister of the Government transmits a report to the protected disclosures commissioner, that Minister will notify the reporting person that he or she has done so. That is again a simple thing about the process of passing reports on. It again clarifies and builds on the fact that we have solved the problem of what happens next. The Bill tries to do that. This would just make sure that reporting persons are aware that this is the new process as to what happens next so that they do not expect the individual Minister to continue to respond regarding the detail of the substantive matter. If the report has been passed on to the protected disclosures commissioner, the whistleblower will be let know that is who they should follow up with.