Speech by Mr Brendan Howlin, On the Protected Disclosures Bill 2013

Issued 4 February 2014

A Cheann Chomhairle, Members of the House

Introduction

The Bill I am introducing here today, which completed its passage through Seanad Éireann on 20th November last, fulfils a commitment in the programme for government to introduce whistleblower legislation and the several commitments I have made to introduce a single overarching framework of protection of workers in all sectors. As I have been anxious to ensure that the Bill would stand shoulder to shoulder with the best in class and that the protections available to a whistleblower in Ireland meet with best international practice the formulation of these proposals involved a wide process of consultation. I have also closely monitored the recommendations made by the many international bodies and academics working in this area. I am pleased to say therefore that in addition to meeting, and in some cases, improving upon the frameworks for the protection of whistleblowers set out by many authoritative bodies such as the G20, the Council of Europe, the OECD, Transparency International and Public Concern at Work, much of the good advice I received from those consultations, and especially from the Joint Oireachtas Committee on Finance, Public Expenditure and Reform has found its way into the Bill.

The anti-corruption context

I have said elsewhere that legislative protections for whistleblowers must be seen as more than mere reactive responses to employers who wish to supress information in relation to their darker deeds. I see the introduction of such protections as a catalyst for a change which views openness and transparency as an asset rather than a liability, a change towards a culture that values the contribution of employees and citizens and recognises those contributions as positive, effective tools in working towards the achievement of the common good rather than as something to be limited or destroyed. Good governance clearly demands that persons in positions of power and management, be open, responsible and accountable for their actions. Good employers have nothing to fear from their employees reporting things that are going wrong. The ideal therefore is to encourage employers to adopt a culture that readily accepts reports of wrongdoing from its workers. Any responsible employer should be happy to accept such reports so that corrective action can be taken sooner rather than later. The Protected Disclosures Bill therefore addresses a significant gap in Ireland’s anti-corruption framework. That gap was in particular, highlighted in the Final Report of the Mahon Tribunal which recommended the introduction of pan-sectoral whistleblower protection legislation. The Bill also addresses the significant issue highlighted in the Nyberg Report on Ireland’s banking crisis that those expressing contrarian views risked sanctions and potential loss of employment. I can do no better here than refer to the observation made by the Joint Oireachtas Committee in response to a comment made to it in the course of its consultations when considering the draft heads of the Bill that the introduction of legislation such as this could damage Ireland’s international reputation. The emphatically made observation was that Ireland’s international reputation could be damaged by not having such legislation!

Key features of the Bill

The Bill introduces a framework which seeks to regulate whistleblowing not only in the best interests of the whistleblower and employer but also in the public interest. It substantially replaces the existing patchwork of sectoral protections and provides a single overarching framework of protection for whistleblowers in a uniform manner in all sectors of the economy. While some special rules for disclosures relating to law enforcement are included it is important to note that no class of information is excluded from disclosure. A key feature of the Bill is the fact that protection will be afforded for a disclosure which is made on the basis of a reasonable belief, even if the information disclosed ultimately proves to be incorrect. If we are to encourage disclosures, workers must have the right to be wrong and not to be penalised simply for being wrong! Equally of course, we should not be in the business of encouraging false reports and no protection is provided for such reports.

How this Bill will effect whistleblowing in An Garda Síochána

The definition of ‘worker’ in the Bill covers as many persons interacting with the workplace as possible, and this includes members of An Garda Síochána who, in common with every other worker in the State may report instances of wrongdoing. It must of course be recognised that having regard to the nature of the matters with which they deal, members of An Garda Síochána operate under very specific sets of rules and procedures particular to them. Notwithstanding this it remains my desire that members ought to have the capacity to report wrongdoing in the force, if not in exactly the same fashion , at least on an equivalent basis to every other worker in the state. With this in mind Section 19 of this Bill seeks to update the position in relation to whistleblowing in An Garda Síochána. The provision amends the Garda Síochána Act 2005 so as to require the Minister for Justice to make new regulations for the making of protected disclosures, within the meaning of this legislation, by members of An Garda Síochána. The new regulations, will be made following consultation with the Garda Commissioner, the Ombudsman Commission and the Inspectorate, and with the approval of the Government. The new regulations must comply with the thrust of the proposal I am introducing here today – that is to say that they must contain provisions for internal and, external reporting and distinguish the disclosure rules relating to non-sensitive and sensitive information of the type envisaged in sections 17 and 18 of the Bill. While the matters referred to in sections 17 and 18 – law enforcement, security, defence, international relations and intelligence matters are indeed matters of specific concern to An Garda Síochána it would seem to me unsustainable to suggest that each and every matter dealt with by An Garda Síochána falls into these categories and that the regulations must therefore contain separate disclosure rules for matters which do not fall into such sensitive categories. In addition to such distinctions the regulations must, in line with the provisions of this Bill, not only provide procedures for the securing of redress following the threat of or actual penalisation but also must similarly provide for the securing of the anonymity of the discloser, an issue of the utmost importance if persons wishing to report wrongdoing are to be encouraged to come forward. I am satisfied that the provision contained in Section 19 of this Bill, which has been agreed with the Department of Justice, will provide a regulation, which not only addresses the particular needs of An Garda Síochána but which will also closely mirror the nature of the protections available to all other workers in the state and not disadvantage any member of An Garda Síochána in terms of the disclosure options available to any other worker.

Bill provides for a stepped disclosure regime

The stepped disclosure regime in the Bill sets out the specific circumstances under which a disclosure may be made in order to attract the protections. Distinct disclosure channels are available – internal disclosure to an employer, externally to a prescribed person or, subject to certain stringent conditions, into the public domain where the circumstances are such that this may be warranted. On this basis it is anticipated that the simplest form of disclosure – to an employer, will be availed of most frequently. The threshold for a report to an employer is set at a low level so that, most importantly, a worker can make such a report on a no fault basis. There is a clear public interest in the making of such reports so that any real or possible wrongdoing can be addressed at the earliest possible stage.

The protections

The protections in the Bill fall into two broad categories – protection for employees from penalisation by employers and protection from detriment suffered as a consequence of the actions of others. In the case of penalisation by an employer falling short of dismissal, an employee will have access to the normal industrial relations machinery. In the case of a dismissal the matter may be pursued under the Unfair Dismissals Act, regardless of length of service or other exemptions set out in that Act. If it is in the public interest that workers should be encouraged to disclose wrongdoing in the workplace, it would of course be perversely contrary to the public interest that a worker who has acted in the public interest be denied the right to financial relief simply because of delays in the adjudication system. In this regard there is a provision in the Bill, arising as a consequence of an amendment suggested to me in the Seanad, for the making of an application by a worker to the Circuit Court for an order of interim relief pending the outcome of a full unfair dismissals hearing. It is also worth noting here that the usual ceiling on compensation levels of two years remuneration is increased to five years in the case of a dismissal in respect of the making of a protected disclosure. Where a worker suffers detriment as a consequence of the actions of any person other than the person with whom he or she has an employment relationship there will be a capacity to take an action for damages in tort. All workers who make protected disclosures will also be provided with a defence against any criminal proceedings as well as a wide immunity from civil liability and a qualified privilege against an action for defamation should such an action arise.

In practice

The issue of a worker having to seek recourse to the protections contained in this Bill should represent the exception rather than the rule and most disclosures should be investigated and resolved at the level of the employer. With this in mind the Labour Relations Commission has already commenced work on the preparation of a Statutory Code of Practice which will set out practical matters as to how a disclosure might be made and how an employer ought to handle such a disclosure upon its receipt. Both IBEC and ICTU are engaging with this process which will continue apace.

In conclusion

In approving this Bill members of the Seanad acknowledged that the Protected Disclosures Bill represents a significant step forward in the framework of existing protections for workers. The Bill I am presenting today not only reflects best international practice but is in my view a fair, balanced and proportionate approach which will ensure that Ireland’s international reputation in preventing corruption is significantly enhanced. I would now like to turn to the specifics of the Bill before us today and to give a brief outline of its main provisions.

Outline of the Bill PART 1 : Preliminary and General

Section 1 sets out the short title to the Bill.

Section 2 provides for a review of the legislation after a period of five years and the presentation of a report to the Oireachtas.

Section 3 sets out the interpretations and definitions used in the Bill.

Section 4 is a standard provision providing for expenses incurred by the Minister.

PART 2 : Protected Disclosures (Sections 5 – 10)

Section 5 provides that a protected disclosure is a disclosure of “relevant information”. Information is “relevant information” if in the “reasonable belief” of the worker it “shows or tends to show one or more of the “relevant wrongdoings” A broad range of “relevant wrongdoings” are set out.

Section 6 provides for the first step in the stepped disclosures regime – a disclosure to an employer or to another person where the matter falls within the area of responsibility of that person. A disclosure to an employer requires a “reasonable belief” on the part of the worker that it “shows or tends to show one or more of the relevant wrongdoings”.

Section 7 provides for the second step in the stepped disclosures regime – an external disclosure to a person prescribed by the Minister. In the case of a disclosure under this section a worker must have a reasonable belief in the “substantial truth” of the matters disclosed. This is a step up from the simpler “reasonable belief” requirement in the case of a disclosure to an employer.

Section 8 provides that a disclosure by an employee of a public body may be made to the appropriate Minister with responsibility for that public body.

Section 9 provides that a disclosure made in the course of obtaining legal advice from a barrister, solicitor or trade union official shall be protected.

Section 10 provides for the third step in the stepped disclosures regime – an external disclosure to another – possibly to a member of the media.

If the protections are to be attracted in relation to such a wider form of external disclosure then even stronger qualifying criteria must be met.

In addition to the substantial truth requirement the disclosure must not have been made for personal gain and at least one of a number of other conditions must be met. These are that if the worker reasonably believed – he would be victimised that the evidence was likely to be concealed or destroyed or that the wrongdoing is of an exceptionally serious nature.

PART 3: Protections (Sections 11 – 16)

 Section 11 amends the Unfair Dismissals Act 1997 so that its protections will, on a day one basis, be available to employees dismissed for having made a protected disclosure. The compensation payable is increased to five years.

This section also includes a provision for the making of an application to the Circuit Court for an interim relief order pending the determination of a claim for unfair dismissal.

Section 12 prohibits an employer from penalising or threatening penalisation against an employee or to cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure.

Section 13 provides a right of action if a third party causes detriment to either the worker or to another person because a protected disclosure was made. The term “detriment” is widely defined.

Section 14 provides immunity against civil proceedings. It amends the Defamation Act 2009 with a view to ensuring that a statement made under a protected disclosure will have qualified privilege under that Act.

Section 15 provides a defence to criminal prosecution for an offence related to disclosure of information. This section is necessary to overcome the many provisions relating to non-disclosure included in other legislation. Section 16 imposes a duty on persons handling protected disclosures to protect the identity of the discloser. The necessary and pragmatic exceptions to that duty are also set out. A person who suffers loss as a result of a failure to maintain confidentiality of identity may pursue an action for damages.

PART 4: Special Cases (Sections 17 – 20)

Section 17 sets out a number of further additional conditions that must be satisfied in addition to those in section 10 for an external disclosure of information relating to law enforcement matters. An external disclosure of such information can only be made to a member of Dáil or Seanad Éireann or, if it contains taxpayer information, to the Comptroller and Auditor General.

Section 18 sets out the conditions that apply in the case of an external disclosure of information that could adversely affect the State’s security, defence or international relations. The only external person to whom a disclosure of such information may be made is the Disclosures Recipient whose role and functions are described in Schedule 2.

Section 19 provides for the making of regulations covering protected disclosures by members of An Garda Síochána and for the securing of redress where a Member has been penalised or threatened with penalisation for having made a protected disclosure. While these regulations will be specific to the Force, the protections available to members of the Force will, I am assured, reflect the broad thrust of those available to all other workers.

Section 20 provides for an amendment to the Ombudsman (Defence Forces) Act of 2004 allowing the Defence Forces Ombudsman to receive and investigate external disclosures from members of the Defence Forces.

PART 5: Miscellaneous and Supplementary (Sections 21 – 23)

Section 21 requires every public body to establish and maintain internal procedures for dealing with protected disclosures.

Section 22 prohibits the contracting out of the protections provided under the Bill and is designed to prevent employers from preventing workers, by way of ‘gagging clauses’ from seeking the protections of the Act.

SCHEDULES:

SCHEDULE 1 sets out the detailed process and procedures for the making of an application to the Circuit Court for an interim relief order.

SCHEDULE 2 sets out the redress provisions in respect of a penalisation falling short of a dismissal and reflects the existing standard provisions of the industrial relations dispute mechanisms.

SCHEDULE 3 establishes the office and functions of the Disclosures Recipient.

SCHEDULE 4 sets out amendments to a total of sixteen sectoral Acts and one Statutory Instrument containing whistleblowing type provisions. Concluding remarks I have dealt with the provisions of the Protected Disclosures Bill in summary form here today however I am more than happy to expand on any of its provisions during the course of this debate. The Deputies will also have an opportunity during Committee Stage to examine the Bill in detail. I am conscious that although this is a short Bill certain elements are, at first read, complex in nature. I look forward to hearing the contributions of Deputies during this debate and I hope that the House will support the passage of the Bill and assist in securing its early enactment. I commend this Bill to the House.