Speech by the Minister for Labour Affairs Mr. Tony Killeen T.D. on the Government Motion on the Whistleblowers Protection Bill 1999, Dáil Eireann

DÁIL ÉIREANN

“That, notwithstanding anything in Standing Orders, that the order of theDáil of 18th June, 2002, to the extent that it orders that the Whistleblowers Protection Bill 1999 be considered in Committee of the whole Dáil, be discharged, and that the Bill be withdrawn.”

— An tAire Fiontar, Trádála agus Fostaíochta.

A Cheann Comhairle

I move the Motion that:

“notwithstanding anything in Standing Orders, that the order of the Dáil of 18th June, 2002, to the extent that it orders that the Whistleblowers Protection Bill 1999 be considered in Committee of the whole Dáil, be discharged, and that the Bill be withdrawn.”

As Members of the House will recall, the Whistleblowers Protection Bill 1999 was the subject of a Private Members Motion Debate in this House on the 7^th and 8^th of March last.

During the course of the three-hour debate on this Motion, my colleague Michéal Martin, Minister for Enterprise, Trade and Employment and I, both outlined in detail to the House the steps that the Government had taken since 1999 in relation to Deputy Rabitte’s Private Members Bill from June 1999.

I want to again take the opportunity to advise the House yet again of these steps and the reasons why the Government is withdrawing the Whistleblowers Protection Bill 1999 from the Order Paper of this House and addressing this very important and sensitive issue of whistleblowing on a sectoral basis in the future.

The Whistleblowers Protection Bill, 1999 was introduced in the Dáil by Deputy Pat Rabbitte on 24 March 1999. The Government, at its meeting on 15 June, 1999 decided to

"accept the Bill, in principle, at Second Stage, subject to indicating to Deputy Rabbitte that amendments will be proposed at Committee Stage by the Tánaiste and Minister for Enterprise, Trade and Employment following consultations with the interested parties and following on the advice of the Attorney General."

Arising from the above, my colleague the Government Chief Whip, Tom Kitt, the then Minister for Labour, Trade and Consumer Affairs, announced in the Dáil on 15 June 1999, that he fully supported any meaningful measures to increase the protection of workers and, therefore, would not be opposing the referral of the Bill to Committee. He also indicated that many of the provisions of the Bill would have to be examined more closely and would necessitate further consultations with the Social Partners and other interested bodies. The Bill passed Second Stage in the Dáil on 16 June 1999 and was referred to the Dáil Select Committee on Enterprise and Small Business.

In July 2000, following examination of the Bill, this Department, in consultation with the Office of the Parliamentary Counsel to the Government, circulated a draft Memorandum for Government to all Government Departments. As a follow on from observations received from Government Departments a total of 45 amendments were prepared by my Department.

The proposed amendments, if adopted, would have resulted in a more comprehensive piece of legislation, which would provide protection from civil liability or penalisation during their employment, for employees (including agency workers), who make - to the specified persons, appropriate officers of public bodies, so designated for the purposes of the Bill - certain protected disclosures of information obtained in the course of their employment, as distinct from making certain disclosures in relation to the conduct of the business and affairs of their employers.

At its meeting on 27 July 2001, the Government approved the re-drafting and amending of the Whistleblowers Protection Bill 1999 on the lines of the 45 Draft Amendments subject to further consideration being given to:

1. implications for the Central Bank and related issues; and
2. the breadth of the grounds, in terms of future behaviour, on which the terms of the Bill could be invoked.

The Government amendments raised a number of detailed and complex issues which, according to the advice of the Office of the Parliamentary Counsel to the Government, would require substantial re-drafting of the Bill.

These related to issues such as:

(a) The inclusion of the Central Bank under the Bill

Clarifications were sought that the terms "employer" and "employee" did not include the Central Bank and its staff. The issue being that the Bank's confidentiality regime was derived from obligations regarding professional secrecy imposed under EU law. It would be necessary to avoid any possible conflict with the Central Bank Acts and/or EU law as a series of legal advices were received from Senior Counsel and the Attorney General's Office indicated inconsistencies with certain EU commitments in relation to conditions for the disclosure of information.

(b) The provision of the protections of the Bill to public servants,

In particular, issues arose in relation to operation of the Official Secrets Act 1963.

In 2002, the Office of the Parliamentary Counsel subsequently indicated that the proposed Government amendments would need further consultations, particularly in relation to:

• the protection of trade-secret type industrial processes particularly where they overlap with intellectual property rights as the Bill should not create a grey area between what matters are to be included in “whistleblowing” and the protection of such intellectual property rights;
• Clarification also of the nature of the protections that would be required under the Unfair Dismissals Acts 1977 to 1993, to employees who "whistleblow" reasonably and in good faith.
• 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 this 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 of 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 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".

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.

Throughout this period, the Whistleblowers Protection Bill 1999 continued to be retained on the Government’s 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 in replies given to Parliamentary Questions on the issue on 28 September 2005, 2 November 2005 and 6 December 2005, Minister Michéal Martin and I, believed that it was now necessary to bring clarity to this issue.

Over recent months, we have both been giving consideration to formalising a Sectoral Approach to the issue of “whistleblowing”. Let me again 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 this 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, both Minister Michéal Martin and I as well as our other Ministerial colleagues have been availing of opportunities 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 might have 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.

The Government decided on 7^th March 2006 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) currently 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 a consequence of the Government Decision and as part of continuing this sectoral approach, I moved a Government amendment at Committee Stage of the Employment Permits Bill 2005 on Thursday 9^th of March to include a new section – Section 25 entitled “Penalisation of Employees” to provide for "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 is along the lines of the provisions of previous sectoral legislation as outlined earlier and was, I should add, agreed without discussion.

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.

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

It is imperative that we in this House 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.

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 that 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 commend the Motion to the House that:

“notwithstanding anything in Standing Orders, that the order of the Dáil of 18th June, 2002, to the extent that it orders that the Whistleblowers Protection Bill 1999 be considered in Committee of the whole Dáil, be discharged, and that the Bill be withdrawn.”

ENDS

LA 173