Keynote Speech to the Public Affairs Conference on Whistleblowing Legislation
Issued 29 June 2017
Remarks by Brendan Howlin TD, Leader of the Labour Party to the Public Affairs Ireland Conference
Whistleblowing, Protected Disclosures and Public Sector organisations,
‘The Policy and political background to the Protected Disclosures Act 2014 – why was it introduced and what has it achieved’.
Thank you for the invitation to be here with you this morning.
Labour’s engagement with the issue of protected disclosures dates back almost two decades.
Our Whistleblower Protection Bill, a Private Member’s Bill in the name of Pat Rabbitte, was introduced back in 1999.
Although our original 1999 Bill had a modest 6 sections while our more recent Government version had 24 plus 4 schedules, the purpose of both was the same.
We wanted to provide protection from civil liability to employees who made certain disclosures “reasonably and in good faith” in relation to the conduct of the business and affairs of their employers.
The 1999 Bill also prohibited penalisation of employees by their employers in such circumstances.
It set out the persons to whom disclosure may be made and the categories of matters in relation to which such disclosure is permissible.
In point of fact, provisions along the lines of those contained in the 1999 Bill were originally to have been included in the Freedom of Information Act which was steered through the Dáil by Eithne Fitzgerald.
The complication which arose at that time was that the freedom of information legislation was intended to deal solely with the public sector, including Government Departments, local authorities, health boards and so on.
However, whistleblower protection is much more wide-ranging because it could impact on any employer-employee relationship in the public or private sector and it would not have sat comfortably in the same Bill.
Apart from anything else, two different Departments would have been involved in overseeing the implementation of the two different aspects of the one Act.
The Department of Finance would have overseen freedom of information in the public service, while the Department of Enterprise, Trade and Employment would have overseen employee protection in whistleblower cases.
So it didn’t happen during the Rainbow Coalition.
Nonetheless, it is important to place the Bill in the context of the commitment to openness, transparency and accountability which produced the Freedom of Information Act, the Ethics in Public Office Act and the reforms of the Electoral Acts which govern disclosure of political donations and expenses at elections.
Speaking on his Bill in the Dáil in June 1999, Pat Rabbitte said that its purpose was “to challenge and help transform the traditional culture of secrecy that surrounds the conduct of business and public affairs in this country”.
He instanced a number of the then current scandals.
“Is it credible that nobody knew or suspected that all was not well at the Blood Transfusion Service Board?
“Did nobody in the Department of Agriculture and Food know or suspect illegality and malpractice in the beef industry?
“Did nobody know or suspect the consequences of Army personnel being exposed to hearing damage?
“Following 30 years of serious allegations, analysis and criticism of the planning system, especially in the Dublin area, is it believable that nobody in the system ever stumbled across any wrongdoing as regard illegality and malpractice as alleged against certain financial institutions?
“Did nobody in these institutions know what was going on?
“To all of these questions most right thinking people believe that people did know or at least had their suspicions but the consequences for career, family and livelihood of whistleblowing are so severe that people are prepared to turn a blind eye.”
It is not difficult looking over the history of whistleblowing to understand this reaction.
That was, after all, the decade in which it became clear that the only person who would face charges arising from the Beef Tribunal would be the then journalist, subsequently Labour Party Senator, Susan O’Keeffe – whose work for Granada TV had given rise to the tribunal in the first place.
The consequences of the blind-eye mind-set can be devastating in terms of the cost, human and financial.
Our proposal for a set of new statutory rights for employees in the public and private sector to report information of illegality or malpractice was, we believed, an essential step to restoring confidence in our major institutions, industrial, financial and governmental.
We said these rights were essential if we are serious about ending the nod and wink culture that permeates Irish business and public life.
As well as the examples cited above, Pat Rabbitte said:
“I am aware also that present and former employees of National Irish Bank who had originally approached the Revenue Commissioners with information on what they considered to be corporate malpractice believed that insufficient action would be taken about it by that body and therefore they believed they had to release that information to RTE.”
And derelictions in institutional care were referenced also.
Plus ça change.
Interestingly, a political issue at that time was the question of mandatory reporting of child abuse.
The professions were opposed, not least because of the question of personal civil liability.
The initiative was taken by Alan Shatter TD to provide legislative immunities for whistleblowers operating in the area of child care and his Bill was accepted by the Government and became law.
We recognised from the start that the motives of an individual whistleblower may vary.
There may be a backdrop involving ongoing rows and bitterness.
That is inevitable.
The important consideration, however, is that no trace of legal sanction should be raised against someone who eventually decides to perform his or her civic duty and to reveal some form of illegal activity or malpractice.
We also recognised that we should not encourage anyone as a first resort to run straight to the media with information received in confidence in the performance of their duties.
But we had to bear in mind the genuine public concern at the failure of the regulatory institutions to crack down on abuses.
The Supreme Court decision in the litigation involving National Irish Bank and RTE had been decided the previous year.
In that case the court held that, while there was a duty and right of confidentiality in the relationship of banker and customer, this was outweighed by the public interest in defeating wrongdoing through the publication of information relating to allegations of serious tax evasion.
The judgment recognised the bond of confidentiality which constitutes the relationship between customer and banker while acknowledging the overriding significance of the public interest in defeating wrongdoing.
However, the NIB case, although it is certainly of benefit to RTE and other media, did not deal with the central issue from the whistleblower's point of view, namely, what would happen if he was exposed?
What employment law remedies would be available in the case of victimisation or penalisation?
Why did he feel it necessary to approach a TV station in the first place? What would have happened if he had approached the regulatory authorities of the State with his information?
In the US they had the Civil Service Reform Act of 1978, to provide relief against reprisal for blowing the whistle on mismanagement, waste, fraud and abuse in the Federal Government.
That Act was updated and reformed by the Whistleblower Protection Act, 1989.
In the UK, a country with a Government and establishment almost as notoriously secretive as our own, a Public Interest Disclosure Act 1998 – originally a Private Members' Bill – was adopted by the Government and enacted.
An interesting aspect of the adoption of that Bill by the British Government was that its passage was supported also by the Institute of Directors and the Confederation of British Industry.
On the 16th June 1999, the Government accepted the principle of our Bill.
Then as now, however, acceptance of a Bill at second stage does not mean the Government has any intention of progressing the measure.
Labour had the support of the Irish Nurses Organisation, the Irish Bank Officials Association, the Irish Airline Pilots Association and other such bodies for the enactment of comprehensive statutory protection.
We were able to cite in support of our position the recommendations of the Lourdes Hospital Inquiry and of the Standards in Public Office Commission, in relation to local government employees.
But, while our Bill was referred on passing second stage to the Select Committee on Enterprise and Small Business, and while encouraging noises were repeatedly made by those in Government, the committee did not meet even once to discuss the Bill and it lapsed on the dissolution of the 28th Dáil on the 24th April 2002.
Those encouraging noises included the fact that on the 30th March 2000 the Minister for Finance told the Dáil, in a statement on the Report on the DIRT Inquiry, that
“The Sub-Committee further recommended that a scheme and procedure for bank officials to report suspected wrongdoing be introduced.
“I understand that the Tánaiste and Minister for Enterprise, Trade and Employment will be bringing forward proposals in this area in the near future.
“These are expected to take the form of amendments to the Whistleblowers Protection Bill 1999 which was initiated in the Dáil last year as a Private Member’s Bill”.
And that on the 8th November 2000, a Minister of State at the Tánaiste’s Department with special responsibility for Labour, Trade and Consumer Affairs confirmed that the Bill was one of a number of upcoming pieces of legislation currently being developed within his area of responsibility.
And that on the 4th December 2000, the Taoiseach wrote, in an article in The Irish Times setting out his Government’s proposals for a package of measures to combat corruption, that
“I am announcing a set of proposals which meet the need for modernisation and transparency, while at the same time allowing for the continuing development of a fully inclusive and dynamic body politic.
“These proposals include … the introduction of legislation to protect whistleblowers”.
Mind you, in the following sentence he also announced the introduction of legislation to regulate lobbyists.
Not to labour the point, but we also saw the annual report of the Department of Enterprise, Trade and Employment for 2001, which stated that extensive amendments to our bill were prepared based on consultations with all Government Departments and had been forwarded to the Office of the Parliamentary Counsel for drafting.
In the event our Bill, which had made no progress after second stage was in fact restored to the Dáil’s order paper on the 18th June 2002, after the general election of that year, and on the motion of the Government Whip.
In that officially sponsored limbo state, it also featured in a report to the Government of the High Level Group on Regulation, published in November, 2002, under the heading “Phase 2 Reforms”, being reforms recommended by the OECD the implementation of which was envisaged for the medium term.
But the Government’s definition of ‘medium term’ stretched all credibility.
Even in June 2005 Deputy Sean Fleming in a report from his Joint Committee on Finance and the Public Service, on commercial bank charges and interest rates, stated that whistleblowing should receive statutory protection and recommended that our Whistleblowers Protection Bill 1999 should be progressed.
So what had happened?
Bluntly, we believe we were systematically misled.
We were repeatedly told by the Taoiseach, the Tánaiste and the Minister for Finance that significant legal and constitutional issues had arisen and that the legal advice was that the Government should not proceed with our Bill.
Under pressure on the 15th June 2005 – the sixth anniversary of the passing of the second stage – the Tánaiste told Pat Rabbitte that she would ask the ‘line’ Minister to let him have that legal advice.
When he again raised the matter with the Tánaiste on the 30th June, she was forced to admit that there was in fact no legal advice.
She said: “It was not actually the Attorney General’s advice but official advice on the difficulties that would arise if the whistleblowing legislation applied to companies outside of Ireland with a subsidiary in Ireland”.
So, we now knew that the real reason the Government reversed engines and decided not to proceed with an important piece of legislation they had supported at Second Stage was that they were afraid it would offend the multinationals.
Never mind the fact that it is of course the multinational companies which have had the most extensive practical experience of dealing with whistlebower legislation in many other countries in the western world and which have learned to live quite comfortably with it.
It seems clear now that accepting the Bill at second stage was preferable to the embarrassment of voting it down.
But there was never any intention of actually implementing it.
Better simply to put on an outward show of agreement, then send the issue into a departmental committee, where it would die of old age.
A parliamentary showdown in 2006, in an attempt to move the Bill onwards, was defeated and that Bill was eventually allowed to die a natural death.
That 1999 Bill probably holds a parliamentary record, as the longest standing Bill on the Dáil’s order paper.
But it would take a change of government to see it passed into law.
Clearly the financial crisis of 2008 onwards provided a further impetus toward the importance of the issue and the issue was to the fore on a series of 100 proposals to strengthen our democracy that I published in advance of the General Election in that year.
We in Labour regarded the previous Government’s policy of providing for whistle-blower protections on a sectoral basis, largely within the public sector has both too limited and too complicated.
We required an overarching piece of legislation for both private and public sectors and informed by a common set of principles
Fortunately, from the perspective of where we stand today, the task of implementation of the Programme for Government commitment that Labour secured, fell to the newly established Department of Public Expenditure and Reform.
And I would like to pay tribute at this stage to a highly dedicated and motivated team of civil servants who embraced not just the change but why it needed to happen.
Established as the Government Reform Unit they worked with me on a swathe of legislation from the extension of the powers of the Ombudsman, the statute law revision programme to whistleblowing and lobbying and freedom of information.
They also embraced our decisions regarding the Open Government Partnership and the open data agenda.
One of my great fears about the Government decision about the effective abolition of the Department is that these type of issues will undoubtedly fall by the wayside.
The Department of Finance has never been a reforming department and I believe than in DPER we had succeeded in establishing a new culture one which has not been afforded the time to bed down permanently.
The decision to effectively abolish the Department is an act of vandalism so far as reform is concerned.
Our approach with regard to the protected disclosures legislation was also open and transparent.
Before publishing heads of a Bill, we published a consultation paper and held a conference to encourage debate on the issue.
The rigour of the process is one of the reasons why our Bill was not enacted until 2014 but I believe it to have been all the better for it.
It was an approach we sought to apply to all the elements of our reform programme.
It is fair to say that the Bill was not universally popular within Government or the administrative system.
And not coincidentally the most difficult departments to deal with were those that regularly encounter the most difficulties with governance issues – the Department of Justice being an obvious case in point.
Nonetheless, any frustrations I might have had about the difficulties in progressing the legislation have to measure against that Government’s willingness to enact the legislation.
Listening to speeches from parties that had sat on the issue for the guts of twenty years was difficult to take!
I think the impact of the legislation has been transformative.
It has emboldened more people than ever to speak out.
Three years is no amount of time to be definitive about the longer-term impact of a single piece of legislation but I feel the signs are there that this Act has been a game changer.
When asked about the Act, I always say that while we intended to change the law that that was only part of our task.
The more long-term goal was to change cultural attitudes.
And undoubtedly in that regard there remain problems and that change will not take place overnight.
But, while in the past the balance of power in this regard remained substantially with those opposed to change that that has already shifted.
One of the reasons we are discussing this issue more frequently as a part of general political discourse is precisely for that reason.
I certainly don’t believe we’re the full way there, but I think we have made substantial progress.
Many thanks for your time and attention.