Ossian Smyth (Dún Laoghaire, Green Party) | Oireachtas source

I thank the Senators. I will start with amendments Nos. 9 to 12, inclusive. Each of these amendments widens the qualifiers for ministerial disclosure to such an extent as to significantly dilute 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 in the implementation of the Act so far. 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 to either go to the Minister first or to report simultaneously to both their employer and the Minister. This 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 so 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 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. Disclosures will be transmitted to appropriate bodies for assessment and follow up. For these reasons, I am not accepting these amendments.

Amendment No. 13 requires Ministers to notify the reporting person of the transmission of a report to the commissioner. Section 10D(1)(a) already requires that the commissioner issues an acknowledgement when he or she receives the report. This ensures that reporting persons are informed of what has happened to their report and who is taking responsibility for it. As a result, I do not accept this amendment and do not see the need for it.

Article 25(2) of the directive provides that, "The implementation of this Directive shall under no circumstances constitute grounds for a reduction in the level of protection already afforded by Member States in the areas covered by this Directive". This matter was raised by a Senator who was concerned that we might be reducing the protections afforded. In literal terms, this does not outright prevent a member state from reducing the level of protection already afforded but rather provides that the directive shall not "constitute grounds" for such a reduction. In other words, no member state can rely on the directive as a justification for reducing the protection and, in particular, for contending that a greater protection is inconsistent with the directive. However, that is very different from preventing a member state reducing the level of protection for policy reasons, provided no reliance on the directive is cited in that regard.

We are not changing the rules concerning ministerial disclosures because of the directive; we are changing them for the simple reason that this channel is not working as intended in its present form. In many ways, we are strengthening and professionalising the ministerial channel by providing that ministerial disclosures will be referred to an independent expert in the form of the protected disclosures commissioner.

On the question of what the head of a public body is, it is the head of a public body rather than a deputy or the entire organisation.