I would like to thank the Chair and Members of the Committee for providing me with this opportunity to present the Government’s proposals in relation to “Whistleblower Protection Legislation”.
In addition to hearing the views of the Committee in relation to the draft Heads of the Protected Disclosure in the Public Interest Bill, I hope this afternoon to be able to provide any additional information which Members of the Committee might require and answer any questions you might have on these important legislative proposals.
I look forward in due course to receiving the Committee’s formal views on the scope and design of the whistleblower protection regime which is being developed.
Programme for Government commitment
As the Members will be aware the Programme for Government contains a commitment to introduce “whistleblower” legislation.
Following Government approval, the General Scheme of a Bill was published at the end of February last with a view to informing public debate on the measures and to provide interested parties with the opportunity to provide their input and observations on the proposed approach.
In that context, officials in my Department have already consulted with the Irish Congress of Trade Unions and Transparency International.
I am pleased to be able to say that the initial feedback received on the legislative proposals has generally been positive in nature.
It is also important to stress that these proposals meet the recommendation included in the recent report of the Mahon Tribunal to introduce a pan-sectoral whistleblower protection act in place of the sectoral approach to whistleblowing protection. According to the Tribunal this fragmented approach has led to a very complex and opaque system for protecting whistleblowers which is likely to deter at least some from reporting corruption offences.
Legislative Scrutiny process
I strongly believe it is vital that Members of the Oireachtas are provided with an opportunity to consider these proposals and to provide their views and perspectives at an early stage in the legislative process.
Too often in the case of important legislative initiatives the first real opportunity available for Members to contribute to the legislative process is at the Second Stage subsequent to the publication of a Bill.
Important steps have already been taken to promote the role of Oireachtas Committees in undertaking what is termed a pre-legislative scrutiny role.
This allows Oireachtas Committees to consider draft legislation at an earlier stage and as a result to have a more meaningful input into law-making.
Strengthening the role of the Houses of the Oireachtas in this vital respect is clearly central to the Government’s political reform agenda.
While, as I have mentioned, there has been some engagement by my Department with key stakeholders I believe it is critical that Oireachtas Committees are given greater opportunities to lead and drive this process particularly in the case of important reform initiatives such as whistleblowing legislation.
Indeed, one of the positive results which I would wish to emerge from the work underway to regulate lobbying is that discussions with key stakeholders on legislative measures would take place within a structured public process rather than behind closed doors.
In some instances it is best for this scrutiny process to be undertaken on the basis of a draft Final Bill prior to the formal initiation of the legislative process. In such circumstances Members of the Oireachtas – by virtue of their knowledge, expertise and experience - can add substantial value to legislation by assessing and refining detailed legal provisions and in reviewing and reporting on important issues relating to the implementation of a particular policy approach
In this particular instance I believe that a structured engagement with the Oireachtas on the legislative proposals is warranted at the earlier “Heads of a Bill” stage particularly since whistleblowing has been described by an authoritative international expert as:-
“…one of the most complex, conflict-ridden areas of public policy or legislative practice”
I am confident that such a review would bring significant benefits in terms of the final design and content of the legislation in delivering on Government policy objectives for safeguarding whistleblowers.
It will also help ensure that we correctly strike the delicate balance in considering the seriousness of the public interest claimed to be at stake against the extent to which the would-be-whistleblower’s actions were reasonable in the circumstances.
I am very grateful to the Committee for its willingness to undertake this work.
Overview of proposed legislative approach
The results of a recent Eurobarometer poll remind us – if we needed reminding – of the extent to which a lack of trust in the integrity of business and politics continues to be of significant concern in Ireland, with over 8 out of 10 people feeling that corruption remains a major problem.
The OECD among several other authoritative international bodies have highlighted how facilitating the reporting of misconduct by employees (i.e. whistleblowing) could substantially help organisations both detect and respond swiftly to ethical or integrity violations such as fraud and corruption and in the public sector, problems such as mismanagement and misuse of public funds
Organisations in both the public and private sector should therefore welcome the whistleblower who is prepared to disclose information on serious wrongdoing in a workplace-setting as a critical element in detecting and ameliorating malfeasance.
Unfortunately experience shows that this is seldom the case and the act of whistle-blowing usually damages the career of the whistle-blower as well as the image of the organisation concerned.
The proposed Protected Disclosure in the Public Interest legislation can play an important role in encouraging the decisive shift required in the culture of organisations and the perspectives of those working in them to accept the positive contribution that whistleblowing can make to identifying and mitigating significant reputational risks to organisations.
Indeed the most effective way to prevent retaliation against whistleblowers is through changes in the organisational practice and culture.
Employees who take the risk of disclosing information on serious wrongdoing in the workplace with the public interest as their goal, deserve strong legal protections against victimisation or reprisals for having taken that action.
The proposed legislation is intended to underpin the development of a business environment in both the public and private sectors where wrongdoing is reported and the negative and undesirable consequences for the individual who discloses such information are minimised or indeed eliminated.
Commentators have rightly stressed that it is unethical for an organisation to encourage its employees to report wrongdoing, but then not to provide appropriate protection when an employee, who responded to this call and did report, suffers retaliation.
The proposed legislation offers accessible reporting channels to those who want to report wrongdoing. A key objective is to enable the reporting of potential wrongdoing in a manner which resolves the problem at the earliest possible stage without matters developing to the point that the question of public whistleblowing arises with all the attendant difficulties and problems that it creates.
The introduction of effective whistleblowing protections applying to all elements of the public service and private sector is an important step in facilitating the bringing of serious wrongdoing to light.
It also has an important role to play in helping to re-build Ireland’s international reputation following major systemic failures in corporate governance and institutional performance which have been widely documented.
The proposed legislation is aligned with best practice international standards, constituting a dedicated comprehensive and stand-alone legislative framework in terms of consistency of approach, legal clarity and certainty and heightened visibility.
At the corporate and organisational level, the proposed whistleblowing legislation also provides the opportunity for all relevant bodies to assess the extent to which their systems, processes and indeed culture supports the business conduct and outcomes that would stand up to external scrutiny in the future circumstances that strong legal protections are available to employees who draw attention to wrongdoing and misconduct.
The draft Heads of the Protected Disclosures in the Public Interest Bill 2012 will provide for an overarching legislative framework for good faith reporting and protected disclosure on a uniform basis for all sectors of the economy covering the public and private sectors.
This includes the Garda Síochána and the Defence Forces subject to specific provisions aligning the making of protected disclosures with safeguarding sensitive or secret information relating to security, intelligence and defence matters and maintaining the integrity of criminal investigations.
The primary elements of the proposed legislative proposals include:-
• Extensive coverage of persons in the workplace environment.
• A broad scope of wrongdoing is covered
• A number of disclosure channels are provided through which, – subject to what is intended to be a ‘stepped’ disclosure regime – , the disclosure of information regarding potential wrongdoing can be communicated to an appropriate authority for investigation
• It details the protections which a whistleblower can avail of in the case of having made a protected disclosure and the proposed mechanisms for redress.
I understand that a detailed presentation has been circulated to Members of the Committee summarising the main points and key features of the General Scheme.
The introduction of whistleblowers legislation in Ireland represents a further significant step forward in the delivery of the Government’s reform agenda.
It underscores the Government’s commitment to restoring fully Ireland’s international reputation and to significantly enhancing corporate governance and standards of accountability.
It presents organisations with a significant external legal benchmark against which they can measure and assess key conduct and behaviours that lead to long-term organisational and business stability and sustainability.