Address by Minister Michéal Martin on Private Members Motion Dail Eireann (Whistleblowers Protection Bill)

The Official Secrets Act 1963

In addition, the Attorney General's Office also provided further complex legal advice relating to the obligations on designated bodies and the Central Bank of Ireland to report certain suspected money laundering activities to the Revenue Commissioners.

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 to the Dáil Order Paper, the 1999 draft Bill - as part of a number of pieces of draft legislation circulated by the Chief Whip on 10 June 2002. This was achieved on foot of a motion taken in the House on 18 June 2002. The Bill was placed on the Order Paper of the House and became part of the Government legislative programme which, as this House well knows, is a commitment to legislate.

Progress on the re-drafting the Bill was raised on a number of occasions in this House, either on the Order of Business or in a number of Parliamentary Questions. In addition, the Taoiseach's Private Office wrote to Deputy Brendan Howlin on 5 February 2003. I understand that the Taoiseach's Private Office also contacted Deputy Howlin on the issue on 21 November 2003.

In light of the complexities encountered the possibility of continuing to address the issue on a sectoral basis was looked into as such an approach was began to look more effective and practical. Following consideration, this approach was conveyed to this House on the Order of Business on 19 May 2004 by the then Minister for Defence, Mr. Michael Smith T.D, who stated – and I quote:

"It is now considered, on reflection, that the provision of statutory protection for whistleblowers on a sectoral basis might provide a better and more focused approach to dealing with this issue as in the case of section 4 of the Protection for Persons Reporting Child Abuse Act and section 50 of the Competition Act. In such circumstances, proceeding with the 1999 Bill is not viewed as a priority. The matter may be addressed at some future time when priorities in terms of the Government's legislative programme have been implemented."

The above approach - that Deputy Rabbitte's Bill was no longer a Government priority - was repeated by the Taoiseach on the Order of Business on 2 November 2004 when he stated:

"In such circumstances, proceeding with the 1999 Bill, as it is five years old, is not viewed as a priority. It may be addressed at some future time when the priorities of the legislative programme will be implemented. For the information of the Deputy, the two countries which introduced whistleblowers Bills have altered the legislation because it is not workable".

The above sectoral approach was also repeated on a number of occasions during 2004 either on the Order of Business or in replies to a number of Parliamentary Questions in this House.

As highlighted in the Opposition’s Motion, the Whistleblowers Protection Bill 1999 is still retained on the Government Legislative Programme.

However, in the light of further exchanges on the Order of Business on 15th, 16th and 30th of June and on 1 July 2005, and replies given to Parliamentary Questions on the issue on 28 September 2005, 2 November 2005 and 6 December 2005 I believe that it is now necessary to bring clarity to this issue.

I have attempted to give the House some flavour of the exceptional legal difficulties encountered in seeking to give legislative effect to the provisions in the original Bill. I have no reason to believe that these problems can be satisfactorily resolved in the near future, despite the existence of goodwill and hard work on all sides.

Over the past while, I have been giving consideration to formalising a Sectoral Approach to the issue of “whistleblowing”. Let me outline to the House what I mean by this and why I think it is the best approach.

A sectoral approach will enable the speedier introduction of relevant measures, appropriate to different sectors to address the important issues identified in Deputy Rabbitte's original Bill.

However, as already indicated, the extensive work on preparing official amendments to the Private Members Bill, raised a number of complex legal questions relating to:

Inclusion of the Central Bank having regard to the Bank's confidentiality regime;

The obligation on designated bodies and the Central Bank of Ireland to report certain suspected money laundering to the Revenue Commissioners;

The Official Secrets Act 1963 and its implications for Civil Servants;

The protection of trade-secret type industrial processes;

A single all-encompassing legislative proposal on “whistleblowing” would be complex and cumbersome, take considerable time to enact, and would not be user-friendly to the general public.

The benefits of my suggested approach can be evidenced by legislative developments in the period since Deputy Rabbitte's Bill of 1999.

The issues raised in the context of the original Bill are so important as not to allow for postponement until a perfect piece of comprehensive legislation can be devised. Accordingly, my colleagues and I and my Ministerial colleagues have been availing of every opportunity to include a suitable “whistleblowing” provision in draft legislation, where appropriate.

As indicated earlier, while still seeking to solve drafting problems in the original Bill the Government did include suitable provisions in a series of legislation adopted by this House in recent years.

These pieces of legislation were the subject of lengthy discussions during their passage through the Houses, during which the Opposition Parties would have had the opportunity to raise any concerns they had in relation to workers who might want to “whistleblow” in good faith.

These Acts were:

Section 4 of the Protections for Persons Reporting Child Abuse Act 1998 provides immunity from civil liability to persons who report child abuse reasonably and in good faith.

Under the Ethics in Public Office Act 2001, the Standards in Public Office Commission is empowered to investigate complaints about alleged contraventions of the Ethics in Public Office Acts..

As far as complaints are made, inter alia, by civil servants against other civil servants, the Ethics in Public Office Acts 1995 to 2001 provide at section 5(1) that where a person makes a complaint to the Commission in good faith, no cause of action shall lie against the person and no disciplinary action shall be taken against him or her as a result of reporting his or her concerns to the Commission. Section 5(4) provides that a person who takes disciplinary action against a complainant in this context will be guilty of an offence and liable to a substantial fine.

Section 50 of the Competition Act 2002 provides that a person shall not be liable in damages in respect of the communication, whether in writing or otherwise, by him or her to the Competition Authority.

The 2002 Act also provides that An employer shall not penalise an employee for having formed an opinion of the kind referred to in Section 50(1) of the Act and communicated it, whether in writing or otherwise, to the Authority if the employee has acted reasonably and in good faith in forming that opinion and communicating it to the Authority.

Section 27 of the Safety, Health and Welfare at Work Act 2005 provides for protection against dismissal and penalisation of employees who, in good faith, take steps to protect themselves or others in a workplace situation.

Section 124 of the Garda Siochana Act 2005 - which provides for Regulations providing for the establishment of a charter containing guidelines and mechanisms to enable members of the Garda Siochana or other persons to report in confidence allegations of corruption and malpractice within the Garda Siochana.

Following my deliberations the Government have agreed with my proposals to formalise the sectoral approach as part of the Government's policy in relation to addressing the issue of "whistleblowing" by requiring Ministers with legislation either:

(a) on the Government's Legislative Programme for the current Oireachtas Session or

(b) currently in the course of preparation, in consultation with the Office of the Parliamentary Counsel to the Government, to include, where appropriate, "whistleblowing" provisions in the draft legislation. Such an approach also acknowledges situations where the provision of "whistleblowing" provisions, may not be appropriate.

As part of this approach, I propose moving a Government amendment at Committee Stage of the Employment Permits Bill 2005 tomorrow to include "whistleblowing" provisions in that Bill. This amendment provides important protections to employees from overseas who act to report wrong-doing by employers to either a member of the Garda Siochana or the Minister in respect of the new Act or the earlier Employment Permits Act 2003.

This amendment follows the provisions of previous sectoral legislation as outlined earlier. The Government’s amendment will be formally tabled at Committee Stage of the Bill in this House later this week.

Against the above background, I ask the House on behalf of the Government, to support the Government in its decisions to proceed on a case by case basis with appropriate whistleblowing provisions, as either enacted by this House or currently before this House, rather than await the possible resolution of wider complex legal issues.

I also ask the House to note the Government's approach will continue to provide a series of opportunities for Members of the House to contribute to the formulation and enactment of appropriate Whistleblower provisions on a sectoral basis and finally,

I ask the House to endorse the Government's intention to continue to pursue the sectoral approach which will supercede the all-encompassing approach proposed in Deputy Rabbitte’s Private Members Bill of 1999.

Under the sectoral approach I propose to instruct the Chief Whip to seek to remove the Whistleblowers Protection Bill 1999 from the Dail Order Paper.

The important public issues which give rise to Deputy Rabbitte’s original proposal have not diminished in relevance. While appropriate provisions to address these issues have been included in a number of statutes, there can be no sense of complacency.

It is imperative that we continue to ensure that persons providing sensitive information in the public interest are provided with appropriate safeguards.

Furthermore as the House considers each Bill coming before it, it will have an opportunity to decide on the whistleblowing safeguards most appropriate to different sectors and to the particular needs of persons working in those sectors. The sectoral approach also means that future measures in this area will be informed by the experience of earlier measures already on the statute book.

All Deputies in this House have a role to play in this regard and the Government will certainly be prepared to consider contributions to this end from all sides of the House. I am convinced that the sectoral approach offers the best prospect of effectively addressing these important issues in a timely and effective manner.

I commend this Motion to the House.

ENDS

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