WHISTLEBLOWING LEGISLATION IS WELCOME AND LONG OVERDUE

Posted on February 5, 2014 1:30 PM   |   Permanent Link   

Speaking on the Protected Disclosures Bill 2013

The Programme for Government makes a clear commitment to the introduction of whistleblower protection legislation. The Minister for Public Expenditure and Reform subsequently reiterated this commitment on a number of occasions in undertaking to introduce overarching legislation which would provide protection for workers in all sectors and the legislation before us today is result. I very much welcome this legislation. Comprehensive legislation that protects those making disclosures is long overdue.

The term 'whistleblower' is a convenient shorthand way of describing a person who discloses information regarding concerns about some form of wrongdoing or misconduct that comes to the attention of others either inside or outside their organisation.

The public generally becomes aware of an incident of whistleblowing when things have gone wrong - usually when the whistleblower has been dismissed or has suffered or been made to suffer in some way. When it appears that the whistleblower has been motivated by genuine and well-founded concerns, public opinion tends to support the whistleblower on the grounds that they have done a public duty. Unfortunately however, the message that emerges from media reports of whistleblowing tends to be negative - that those who put their heads above the parapet and speak out are liable to be penalised in some way.

The raising of genuinely held concerns about issues of public importance is to be encouraged and it therefore follows that workers who wish to raise concerns about wrongdoing in the workplace ought to be shielded from the retributive actions of employers who would seek to suppress the disclosure of such information. Similarly, it is equally important in providing protection for workers that an appropriate balance is maintained that does not result in the unnecessary public disclosure of genuinely confidential information. In addition it should not provide a mechanism for private employment-related grievances which are properly dealt with under existing, long established and tested industrial relations mechanisms.

I think it is worth giving a brief history of whistleblowing legislation in Ireland, which, in my view, shows how lacking it has been until now. The Whistleblowers Protection Bill was introduced in the Dáil as a Private Members Bill by my own Labour Party colleague and now minister, Pat Rabbitte in March of 1999. In June 1999 the Government agreed to accept the Bill, in principle, at Second Stage, subject to amendments proposed following consultations with interested parties and following on the advice of the Attorney General. The Bill passed Second Stage in the Dáil in June of 1999 and was referred to the Dáil Select Committee on Enterprise and Small Business.

At its meeting in July of 2001 - a whole two years later - the Government approved the re-drafting and amending of the Whistleblowers Protection Bill 1999. The Government raised a number of detailed and complex amendments which, according to the advice of the Office of the Parliamentary Counsel would require substantial re-drafting. Further progress on re-drafting the Bill was overtaken by the dissolution of the Dáil in April 2002 and the General Election in May 2002. The Government decided in June 2002, to restore the 1999 Bill to the Dáil Order Paper and it became part of the Government legislative programme. On 2 November 2004, the then Taoiseach indicted to the Dáil that the Whistleblowers Protection Bill, 1999 was no longer a Government priority.

The Government decided in March of 2006 to address the issue of whistleblowing on a sectoral basis and to include, where appropriate, whistleblowing provisions in all future draft legislation. It also decided to remove the Whistleblowers Protection Bill 1999 from the Dáil Order Paper. The Whistleblowers Protection Bill, 1999 was reintroduced as a Private members Bill in the Dáil on 28 January 2010 as the Whistleblowers Protection Bill 2010 but fell on the dissolution of the 30th Dáil in February 2011. An equivalent Whistleblowers Protection Bill 2011 was introduced in the 31st Dáil by the independent group of deputies.

All of the delaying of legislation, and the subsequent watering down of what had been proposed was done, disgracefully by Fianna Fáil during their long 14 years in government, and I am totally unsurprised by this, although I am certainly disgusted.
Fianna Fáil have presided over a great deal of political corruption in this State since the time of Charles J. Haughey in particular and it is not a surprise to me that they would not wish to bring in proper legislation. I can only hope that the Fianna Fáil of today is a different party - only time will be able to tell.

On a related note - and it is a related note - I wish to raise again the matter of the Final Report of the Mahon Tribunal.

At paragraph 1.57 of Chapter 18 (page 2531) of the Mahon Tribunal, the view was expressed that whistleblower protection plays an important role in the detection of corruption offences and that the protection offered to prospective whistleblowers should be as robust as possible. In particular, it recommends that protection be extended to protect independent contractors from penalisation where they blow the whistle on a person to whom they are providing services and that limits on the amount of compensation which may be awarded to those penalised for whistleblowing be removed.

At paragraph 2.2 (page 2542) the Final Report commented that to be successful, top-down initiatives to combat corruption must be mirrored by bottom up demands coming from a public which is fully engaged in and committed to combatting corruption -
"These demands help to strengthen and reinforce political will to confront corruption. In addition, the willingness of the public to engage in anti-corruption efforts through whistleblowing as well as voicing concerns and demands is likely to greatly enhance attempts to uncover corruption when it occurs and to undo its effects."

The report noted that there is no pan-sectoral protection for whistleblowers in Ireland and that protection for those who blow the whistle on corrupt transactions is an important element in ensuring their detection and sanctioning. It further noted that -
"Corruption is frequently an offence committed by wealthy and/or powerful members of the Community and those reporting it may well fear the consequences of doing so for their own careers and employment prospects. Whistleblower protection may help alleviate those fears, thus facilitating the reporting of corruption offences." (para.7.45).

The Tribunal went on to urge the government to reconsider its approach to whistleblower protection and to bring in a general law protecting all whistleblowers at the earliest opportunity. (para.7.51 - page 2661).

It further recommended the extension of existing whistleblower protection under the Prevention of Corruption (Amendment) Act 2010 to protect independent contractors who report suspicions of corruption from penalization and to remove the existing limit on the amount of compensation.

I commend this Bill to the House. It is an overdue piece of legislation and I am proud, as an elected representative who witnessed the corruption of Fianna Fáil firsthand, to be able to support it as a member of this House.