Michael McGrath (Cork South Central, Fianna Fail)
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I propose to take Questions Nos. 190, 196, 197, 198 and 211 together.

I am not in a position to comment on individual cases before the courts.

The Protected Disclosures (Amendment) Bill 2022 provides for a significant overhaul of the framework of legal protections for whistleblowers provided by the Protected Disclosures Act 2014. It also provides for the transposition of Directive (EU) 2019/1937 on the protection of persons who report breaches of Union law. The Bill provides for enhanced protections, notably:

- the extension of the existing protections of the Protected Disclosures Act 2014 to a wider cohort including volunteers, shareholders, persons belonging to the administrative, management or supervisory body of an undertaking, and persons going through a recruitment process or in pre-contractual negotiations,

- reversal of the burden of proof during proceedings at the Workplace Relations Commission and the courts,

- access to interim relief at the Circuit Court against penalisation, and

- providing for criminal penalties for penalisation.

Following a recommendation in the pre-legislative scrutiny report and at Second Stage in the Dáil in February of this year, I signalled my intent to consider how to make provision for retrospective protection where possible. At each stage when this Bill has been considered, I have updated members of the House on progress in this regard, and my commitment to go as far as possible to provide retrospective protection, where possible, to persons who have reported relevant wrongdoing within the meaning of the Act prior to the Bill's forthcoming enactment. In light of my instruction to provide retrospective protection as broadly as possible, the amendments required careful consideration by my officials in conjunction with the Office of the Attorney General. The amendments introduced at Committee Stage in the Seanad fulfil the commitment I gave to the Houses on this matter.

The amendments I have introduced provide that a worker who reports a relevant wrongdoing before the Bill is enacted but suffers penalisation after the Bill is enacted is entitled to the enhanced protections of the amended legislation, including the reversal of burden of proof in civil proceedings at the Workplace Relations Commission (WRC) and the courts.

The amendments further provide that a worker (as defined in the 2014 Act) who reports a relevant wrongdoing and suffers penalisation before the Bill is enacted but has not initiated proceedings at the WRC or the courts will be entitled to the reversal of the burden of proof in such proceedings. I am satisfied in light of my Department’s engagement with the Office of the Attorney General that it is not possible to apply those changes to existing proceedings, since that would involve interfering with already existing litigation. To seek to apply new rules to cases where proceedings have already issued would be unfair and give rise to legal issues. This is especially so where there is already a Court decision in place.

Michael McGrath (Cork South Central, Fianna Fail)
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Section 13 of the Protected Disclosures Act provides that, "If a person causes detriment to another person because the other person or a third person made a protected disclosure, the person to whom the detriment is caused has a right of action in tort against the person by whom the detriment is caused".

Section 22 of the Protected Disclosures (Amendment) Bill provides for the insertion of a new subsection - (2B) - into section 13 of the 2014 Act, which provides that, "In any proceedings under this section in respect of alleged detriment caused to a person, the detriment so caused shall be deemed, for the purposes of this section, to have been caused as a result of the person or another person having made a protected disclosure, unless the person whom it is alleged caused the detriment proves that the act or omission concerned was based on duly justified grounds."

The effect of subsection (2B) is to reverse the burden of proof in any tort proceedings taken under section 13, so that the court must assume that the alleged detriment occurred because of a protected disclosure, unless the defendant can prove otherwise.

Michael McGrath (Cork South Central, Fianna Fail)
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The Protected Disclosures (Amendment) Bill 2020 provides for a substantial overhaul of the statutory framework for the protection of whistleblowers as well as for the transposition of Directive (EU) 2019/1937 on the protection of persons who report breaches of Union law. The process of developing the Bill has involved consultation with a broad range of interested parties.

The General Scheme of the Bill was approved by Government in May 2021 and the text of the Bill itself was approved by Government in February 2022. Observations on both the General Scheme and the Bill were submitted by the Minister for Justice on both occasions in accordance with standard Cabinet procedures.

The Department also engages regularly with Departments and other public bodies on the implementation of the 2014 Act and the impact of the new legislation through an informal Protected Disclosures Network. The Department of Justice participates in this group. The Department also deals with various ad hoc queries from Departments and public bodies on the operation of the Act from time to time.