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Ireland's political and cultural magazine
38 March 2022
externally. This was deemed to be incompatible
with the EU directive. It was also found the
requirement to “cooperate, as required” with
an investigation into wrongdoing should be
removed, as there could be valid reasons for
not cooperating with such an investigation.
This recommendation was taken on board.
• That the new bill/Act should be retrospective
in nature to ensure protected disclosures made
before the enactment of the amended
legislation receive the full benefit of the
legislation
•
That the definition of penalisation be
broadened to include “vexatious proceedings
brought against a discloser” and “attempts to
hinder further reporting”. This was taken on
board.
•
That there should be a legal requirement to
accept anonymous reports of breaches and
determine follow-up on the same basis as
other disclosures. This was taken on board.
• That consideration be given to the removal of
caps on awards for those seeking financial
redress. This was not taken on board.
• That free legal and psychological counselling
services be provided to those making
protected disclosures. This was not taken on
board.
The report is quite detailed so I would
encourage those with an interest to take a look
for themselves. It can be found on the Finance
Committee’s homepage.
It should also be noted that the December
deadline for the government to transpose the EU
directive, through its own bill, has now passed
and this State could find itself fined for this, as we
were previously with our failure to enact the Anti-
Money laundering directive on time.
The fastest way for the government to do this,
and avoid and a potential fine, is to enact Deputy
Farrell’s own Protected Disclosure (amendment)
bill which has proceeded to second stage. This
bill already gives expression to many of the
recommendations of the report, as it was crafted
in consultation with legal practitioners,
academics and whistleblowers themselves.
This government, just like those that went
before it, is happy pay lip service to the bravery
of whistleblowers. And yet it is in reality quite
content to allow the organisations, in which
wrongdoing was revealed, to attempt to
extinguish them.
At the start of this year the Taoiseach claimed
that “disinformation” is now “a very real threat to
the sustainability of free democracies”. When I
heard that, I wondered what the numerous
whistleblowers who appeared before the
Committee to tell their stories would have made
of those words. I’m sure they felt like their
attempts to reveal the truth were often
misconstrued as “disinformation”.
Cillian Doyle is Advisor to Sinn Féin’s Spokesperson
on Public Expenditure and Reform, Máiréad Farrell
giving any new protections to those
whistleblowers whose cases remain unresolved.
The Minister says this matter is currently with the
Attorney General for consideration, but
whistleblowers themselves already see this as a
red flag and an indication that the Minister is not
serious in this regard.
“Key problems include that while the existing
Act protects people from dismissal, the
protections from penalisation are much too weak.
The Minister has broadened his definition of
‘penalisation’ in line with what the Committee
recommended, and this is welcome.
However, he has pushed ahead with his
requirement to add restrictive conditionality for
public service workers complaining outside their
organisation, only if there is a so called
“emergency situation”, which is of questionable
compliance with the EU Directive.
With regard to private sector organisation the
Minister no proposes to include organisation with
50 employees or more withing the regime. So if
you work in an organisation with 49 workers…well
tough luck!
These problems simply go unaddressed in the
bill.
Of the 60 recommendations the following were
key, and are identified as having been taken on
board or not:
•
The first recommendation, and arguably the
one where there is the greatest doubt, is
whether the new legislation will be
retrospective in nature and any additional
protections be given to whistleblowers who
have unresolved cases. This has yet to be taken
on board.
•
That consideration be given to the new
“restrictive conditionality” for making a
protected disclosure to the relevant Minister -
as it may be incompatible with the EU Directive.
This recommendation was not taken on board
•
The Committee, in consultation with the Oce
of Parliamentary Legal Advisor (OPLA), found
that the changes in the Ministers forthcoming
bill found that the requirement for a reporting
person to believe that the perceived
wrongdoing “was substantially true”, rather
than simply “true” as under the current act
raised the current threshold for reporting
In January the Oireachtas Joint Committee on
Finance, Public Expenditure and Reform and the
Taoiseach published the influential “Report on
the Pre-Legislative Scrutiny of the General
Scheme of the Protected Disclosures
(Amendment) Act 2021” on the government’s
whistleblowing bill.
The report dealt with some of the current
system’s shortcomings, while assessing the bill,
which is being introduced to transpose an EU
directive. The Directive and therefore the
transposed bill provides protections not just to
traditional employees but to a broad range of
reporting persons, including shareholders and
volunteers.
The report identified significant shortcomings
in both the current legislation and Minister
McGrath’s new bill. It made extensive reformist
recommendations and highlighted potentially
“regressive” aspects of the Government’s new bill.
In total the report sets out a total of 60
conclusions and recommendations which arose
from detailed scrutiny of the legislation from
experts, academic and professionals. As well as
the detailed and harrowing evidence provided by
former whistle-blowers themselves, whose
names would likely be familiar to Village readers.
The Committee, to its credit, undertook the
scrutiny of this bill with the seriousness that it
warranted, with Deputy Mairéad Farrell, Senator
Alice Mary Higgins and the Chairman John
McGuinness having distinguished themselves in
particular. The Minister has now published his bill
and whilst some of the recommendations were
taken on board, others were not. The Minister is
now on record in the Dail is stating that he is
willing to work at committee stage to see if
additional improvements can be made. It begs
the question why these recommendations were
not automatically included?
Will he resist his ocials and the peculiarly
Irish culture of protecting institutional reputations
at all cost? It’s still too early to tell, but the signs
that we’ve had from his time as Minister haven’t
been encouraging. “Pretend and extend” is his
default tactic. One major omission, which was
recommendation No.1 of the Report was that the
new bill would be retrospective in nature, thus
NEWS
Blowing in the wind
The government have made some changes to
their Whistleblowers bill, but doubts remain over
whether those legacy cases will still get justice
By Cillian Doyle
POLITICS
