Wednesday, 29 June 2011
Seanad Éireann Debate
Cuirim fáilte roimh an Aire Stáit. The motion is aimed at highlighting the current plight of whistleblowers in Ireland, the cost to Irish society of not protecting whistleblowers and the simple measures that must be introduced to protect them as a matter of urgency. This debate is particularly timely, given the allegations coming from Rostrevor House Nursing Home and how the allegations of workers at the home were treated after blowing the whistle. However, the issue deserves Members’ attention nonetheless.
For decades we have been hearing about the devastating consequences of cover-ups, abuse and corruption in Ireland, from the sexual and physical abuse of children, graphically recounted in the Murphy report and elsewhere, to the abuse and maltreatment of former patients at Our Lady of Lourdes Hospital, Drogheda, as well as from the scandal of the Irish Hospital Sweepstakes competition to the economic catastrophe wrought on the country through wrongdoing in the banks. We have learned that silence is not always golden. In addition, we have heard about the plight of those who have chosen not to remain silent. We have learned how whistleblowers such as Eugene McErlean, former head of audit at Allied Irish Banks, and Noel Wardick at the Irish Red Cross have been ignored and lost their jobs for reporting concerns in good faith. The story of Bernadette Sullivan at Our Lady of Lourdes Hospital shows how whistleblowers are often ostracised and isolated for having reported on one of their own.
The latest accounts of alleged abuse at Rostrevor House Nursing Home show how the most vulnerable in society can be exposed to and always will be at risk of cruelty and neglect. A total of 14 staff have been made redundant because of the closure of the nursing home and two of the whistleblowers dismissed. It has been found, to the cost both of the whistleblower and the victims of wrongdoing, that abuse continues and will happen for as long as the need to protect those who speak out is ignored. Abuse will continue for as long as society fails to punish those who silence workers attempting to tell the truth. Unfortunately, when the Rostrevor House Nursing Home workers all lost their jobs, the message sent to workers was that if one reported abuse, together with other innocent colleagues, one would lose one’s job, that one’s professional reputation might be ruined and that one would not receive support from either HIQA or the HSE.
Unlike the United Kingdom, with its Public Interest Disclosure Act 1998, and New Zealand, with its Protected Disclosures Act 2000, Ireland does not have an overarching whistleblower protection law. After a series of political corruption scandals, a Bill proposing such a law was tabled in 1999 by the Labour Party. It languished in the Government’s programme for seven years before being dropped because according to the then Minister of State, Tony Killeen, “[a] single all-encompassing legislative proposal on whistleblowing would be complex and cumbersome, take considerable time to enact and would not be user friendly for the general public.” These complexities were never fully explained by the then Government and neither did it explain how a single comprehensive and overarching Act would be less user-friendly than a piecemeal, incoherent and scattered legislative approach. Instead, it chose to introduce legislation on a sectoral basis in a process begun in 1998 and which became official policy in 2006. It is an approach that only protects employees in some professions and sectors, which leaves employees and other potential whistleblowers in other sectors with little, if any, legal protection.
Shockingly, there is no statutory protection for whistleblowers in financial services, or in respect of company law issues or the Civil Service. Particularly important from the point of view of the motion, the protections pertaining to nursing home and medical malpractice lag behind other whistleblower provisions in Irish law. This point was borne out by a recent study undertaken by the centre for health policy and management at TCD, the findings of which revealed that 88% of nursing staff respondents in Irish hospitals had observed an incident of poor care in the past six months. The findings indicated that 70% of those who had observed an incident of poor care reported it. However, only one in four nurses who had reported poor care was satisfied with the way the organisation had handled his or her concerns.
Whistleblowing in health care settings is extremely important. For instance, the UK-based Public Concern at Work organisation notes that in the last decade public safety, including patient safety in health care settings, consistently ranked in the top five concerns reported to its helpline.
The international evidence clearly shows the value of whistleblowing. More than one in four cases of corruption and fraud is disclosed by whistleblowers. Many cases of sexual abuse and wrongdoing at work are uncovered by whistleblowers. The financial benefits alone are worthy of note. For example, the Department of Justice in the United States has claimed that whistleblowers have saved the American taxpayer $21 billion since the mid-1980s. Our counterparts in the United Kingdom, New Zealand, Australia and South Africa introduced comprehensive safeguards for whistleblowers a long time ago. In the UK, these protections have been used effectively and without legal mishap to foster a culture where speaking up is much more the norm than is the case in Ireland. Most common law jurisdictions have recognised the importance of flexible comprehensive laws in preventing corruption, fraud, waste of public resources, discrimination and sexual abuse. Our current sectoral approach allows only for narrowly defined categories of workers to report very narrowly defined categories of offences. Workers in our financial services, agency staff in hospitals and private health care providers, airline pilots and those reporting violations of company law, are all exposed to retaliation by their employers. This uneven standard of protection creates uncertainty in the mind of the person reporting wrongdoing at work. Such doubt can only have a chilling effect on the prospective witness or whistleblower and will continue to pose a barrier to the development of a culture of transparency in Ireland.
We must guard against complacency on this issue. Any old over-arching law in this area is not enough. While the introduction of generic Private Members’ Bills on whistleblower protection in 2010 and again this year was welcome, and particular credit must again go to the Labour Party on this issue, these Bills are still not without their flaws. The protection offered therein is still too narrow and does not cover persons falling outside the traditional employer-employee relationship. In particular, migrant workers, such as those involved in the current Rostrevor case, and who comprise 16% of workers in the health and home care sectors, would not be protected by the enactment of the Labour and, now, the Technical Group Bill as it currently stands. This has potentially very serious repercussions for a group of people whose vulnerability is heightened due to their limited employment and residency rights. Non-executive directors, contractors and consultants, too, fall outside the traditional model and thus fall not to be protected under this proposed legislation. Another lacuna is that the Bill does not propose criminal sanctions against those who attempt to cover up a report that may be made by a whistleblower to the authorities or who retaliate against a whistleblower reporting concerns about criminal wrongdoing.
It is also worth mentioning that compensation for workers found to have been victims of whistleblower retaliation should be proportionate to the impact of the retaliation. The current provision of two years’ salary under the Unfair Dismissals Act does not go nearly far enough to compensate many of those whistleblowers who have often lost everything. The Safety, Health and Welfare at Work Act 2005 and the Employment Permits Act 2006, already offer whistleblower compensation that is deemed to be just and equitable in the circumstances and these provisions could easily be provided for in new legislation.
Given all we have learned about wrongdoing in all sectors of society and the economy, it is time we introduced a whistleblower law that would protect every worker, irrespective of their nationality or employment status, a person who honestly reports a concern about wrongdoing, waste and other risks to the public good. It is time we introduced a law that challenges the culture of secrecy and impunity, a law that shows we have learned from the mistakes which have cost this nation and its people so dearly.
I note and I am grateful for the interest of the Government and Sinn Féin in proposing amendments to this legislation. However, I must point out that Transparency International Ireland, to whom I am greatly indebted in the preparation of this motion — Mr. John Devitt of Transparency International Ireland is in the Visitors’ Gallery. In consultation with Mr. Devitt, the following points could be made about the motion. Sinn Féin’s amendments look rather similar to the original motion. They focus on the issue of white-collar crime and there is a valid point to be made in this regard but it is a point which, in the view of Transparency International Ireland and in my view, could distract from the purpose and impact of this motion which is to identify the need for over-arching whistleblower legislation which is primarily to do with the protection of the persons involved. It is to do with whistleblowers not just where they are reporting on fraud or white-collar crime but in all sorts of different situations. It is clear that over-arching legislation is required to guarantee a standard of protection for people, as distinct from a piecemeal, hit and miss approach, sector by sector, where there are uneven protections for different groups and for some groups, no protection at all. It is quite clear that by having over-arching legislation, a standard can be achieved. It may be necessary in other legislation to deal with the particular issues facing particular sectors but it is absolutely essential to have standard whistleblower legislation of an over-arching nature of the kind that pertains in Great Britain.
The only thing wrong with the Government’s amendment is that it does not go far enough. It is quite admirable in what it proposes but it fails in its lack of detail to address the other kind of protections needed. The issue of migrant workers demonstrates clearly that whereas legislation to guarantee the rights of whistleblowers in certain circumstances is essential, there is also the need for wider protection. I give as an example a person who loses his or her job as a result of making a disclosure in the public interest which leads to the closing down of a nursing home. In that situation what is clearly called for is some kind of protective approach on the part of the State, similar to what applies in the case of victims of human trafficking where there is a kind of administrative system within the Department of Justice and Equality which, at least in theory, provides victims of human trafficking with various supports. In the case of a migrant, one does not wish to have such a person disincentivised from making a report in the public interest. It is quite clear that a person who fears losing his or her job as a result of the closure of the institution about which they have an important complaint to make, will be slow to make that report. Therefore, it would be necessary for the State to provide assistance for the person who might lose his or her job. In the case of migrant workers who might need a transfer of their work permit to any new employment, it could be a fast-tracking of that application. It is more than just a case of legislating. What is needed is a whole policy and legislative framework that will go on to change the culture in the country and create a culture where people will feel positive about making a necessary disclosure.
Mar sin, tá sé de dhualgas orainn a chinntiú go bhfuil cearta gach duine anseo cosnaithe. Ba chóir dúinn iad siúd gur mhian leo an eolas seo a chur faoi bhráid údarás caoi, ar mhaithe leis an bpobal, a chosaint. Cabhróimid leis na daoine sin trí reachtaíocht chaoi a chur i bhfeidhm.
Senator Feargal Quinn: I second the motion. I express my appreciation to Senator Mullen for tabling this motion as it is a topic that needs to be discussed and one that is worthy of debate. I note the amendments which add to the debate. I welcome the Minister of State to the House. It is quite a long time since he was a Member of this House when we worked together.
I have some experience of a whistleblower. Some years ago when I was running my supermarket company I received a telephone call asking me to meet a person who worked for one of our suppliers. I was told the supplier was cheating. The product being delivered to my company was not what had been promised. The supplier was putting a dye into the product to make it look like a different product. The employee had a choice. He was tempted to go to the newspapers and make a disclosure but had he gone to the newspapers it would have done our company a significant amount of harm. Instead he came to me. I went to the supplier and the supplier denied the activity but, suddenly, things changed and the product became a different product. It was not available to us for a couple of weeks and it was clear they were cheating. That employee had a choice. Had he gone to the newspapers and had they published the complaint, the supplier would have been damaged — although deserving to be damaged — but it would also have damaged the customers of that supplier. Therefore, I have some sympathy for whatever decision will be reached in this area.
We have to be very careful. We do not want to find that by setting up whistleblowing legislation, we set up legislation which encourages what I call, denunciation, for example, where a person makes a statement. I refer to an incident last week — nothing to do with whistleblowing — where an individual made a statement about a very well-known personality and it turns out to be incorrect. The harm that could have been done by that statement is just a reminder of how careful we must be to avoid encouraging denunciation. When I look back at history I think of two incidences of where denunciation was used. The Gestapo in the 1930s only had to say they had a belief a person had done something and that person’s name was ruined. A few hundred years previously in the Spanish Inquisition, denunciation was common-place. A person’s good name could be damaged very easily. The mere hint of a slur can do a great deal of harm because people are of the view there is no smoke without fire. We need whistleblower legislation but we need to be careful. Given the experience of the banks in recent times there is little doubt but that we need such legislation. We want to avoid what I would call a crank’s charter, where people can go public too easily and do a huge amount of harm. There is merit in having legislation on whistleblowers.
Senator Mullen correctly pointed out that it seems to work quite well in Britain. We have approached the issue in a piecemeal fashion until now in Ireland, going through it sector by sector. Perhaps that is the way to deal with it. We should encourage it. I understand we have it in the areas of health and safety and banking. If we do not, we should ensure we achieve something. I want to ensure that whatever legislation is introduced is acceptable and does not do more harm. Like my colleagues I was shocked by the reports on care homes for the elderly, State and clerical institutions and hospitals. I sometimes wonder why we are surprised at the scale of sexual and physical abuse of the most vulnerable or the prevalence of wrongdoing across society when so little has been done over the years to protect those who speak up.
The whistleblowers working in Rostrevor nursing home and Our Lady of Lourdes Hospital, to which Senator Mullen referred, are examples of what has happened. The story of the Rostrevor whistleblowers shows how vulnerable migrant and agency workers are in our health service. Eugene McErlean of AIB and others in the Red Cross demonstrate how vulnerable even the most senior officials are when reporting concerns about financial irregularities or failures in corporate governance. Above all, these stories show that little has been done by the State for those who have served so many in the past. These courageous individuals continue to face unemployment and a life of uncertainty because they dared to act in the public interest. They get little thanks and no compensation for sacrificing their welfare for the common good. Others have blown the whistle and discovered that their colleagues do not accept what they said. Such people have lost out and almost been sent to Coventry.
I fail to see why we have taken so long to introduce some form of whistleblowing guarantees and legislation that would protect workers in the public and private sectors. Such legislation, as Senator Mullen said, has operated without any difficulty in Britain and Northern Ireland for well over ten years. It has protected workers and the reputation of those accused of wrongdoing without much drama. If such a law can enjoy the support of the British business community, why would it face any opposition here? The reason is because of what I said earlier, namely, that business is concerned about an approach that would aim to solve all problems with one broad sweep of the brush. We need to introduce whistleblowers legislation but it has to be done carefully, sector by sector, to avoid the pitfalls into which we could otherwise fall. It is worthy of consideration and the motion and amendments are leading in the right direction to enable us to find a solution.
I thank the Minister for being with us. I am grateful to Senator Mullen for the theme of this important motion and the need to debate the requirement for whistleblowers legislation. The Government intends to provide protection for those who come forward in good faith, regardless of where they are from or the state of their employment. We face a monumental task because we cannot legislate for people, to tell the truth. We can offer a safeguard and create an environment which it makes it easier for those people who wish to come forward and tell a story or disclose something difficult, but we cannot make them do that.
I draw the attention of the House to an event I wrote about in January 2009, the commemoration of the 25 years since the death of the teenager Ann Lovett, something which many people here will remember. Many people will remember the moment when it was disclosed. As I wrote in 2009, when she and her tiny baby died, the town that she lived in, Granard, folded them away just as towns and villages in Ireland had done for years. However, someone in the town understood the enormity of the event and saw fit to tell the media. Some five days after the funeral, the nation learned of Ann’s cold and lonely death, her school bag and her dead son found lying next to her as her life faded away. It was a turning point in this country. It was a moment when we saw fit to be able to stand up and tell the truth about something which was very difficult and had happened many times before in Ireland but people had been afraid to come forward.
In my career as a journalist and documentary maker I have persuaded many people to speak out, even when there was nothing in it for them. In many cases there is nothing in it for people to come forward and speak up. We must ensure at every stage that we can offer some protection so that even if there is nothing directly in it for a person, we seek to protect them. In the first programme ever broadcast on investigating the abuse of children by members of the clergy, people were literally shaking and crying as they told of their pain and experience, yet were unable to say out loud what had happened because of their fear. They were afraid, if we can believe it, of their families, friends, neighbours or communities. Effectively, they were afraid of us. We are afraid of ourselves if we cannot stand up and own up. That is the culture which we must begin to try to encourage. We can do this with legislation but it will take time. When I exposed malpractices in the beef industry, I was personally criticised and told constantly that in the interests or good of Ireland, I should stay quiet. I found it an extraordinary irony that, for the good of Ireland, we should conceal the truth. This was not so long ago. It was 1991, a mere 20 years ago.
I take great heart that I can stand in this House today to discuss whistleblowers legislation and support an amendment in which we recognise the need not to cover up, that the truth is the most important thing and that encouraging people at all stages in all places at all times to come forward with their stories is what we need to do as a society and country to grow up and take our place. If we want to stay in the darkness of the 19th or 20th centuries and encourage people to stay quiet, we will do ourselves extraordinary damage.
In 1999 Deputy Pat Rabbitte of the Labour Party introduced a Whistleblowers Protection Bill which was subsequently parked for many years and finally abandoned 2006. The old bogeymen, legal and constitutional issues, were given as the reason for that. That was then and this is now. The Labour Party and Fine Gael have pledged to introduce overarching whistleblowers legislation. I hope the model for this legislation will be the Public Interest Disclosure Act which, as we know, has worked very well. To our shame, it has been working in the United Kingdom for the past 11 years. The words “public interest” are at the heart of that legislation and should also be at the heart of whistleblowing legislation when brought forward here. It is not about what is interesting to the public; car crash, gossip-style stories should not drive such legislation. We are talking genuinely about the public interest. The Government will introduce legislation to ensure that in the public interest we can finally bring to light issues that cause trouble, including corruption, fraud and even death. These matters are at the heart of our society and although we cannot legislate to get rid of them, we can encourage finding a better way to cope with their causes under law. I commend the amendment to the House.
Senator Denis O’Donovan: I support the principle behind the motion. Having served on the Government side of the House also, I know it is not unusual to receive cross-party support for a motion, although an amendment may be tabled. When I was on the Government benches, I was often perplexed that we were inevitably instructed to table an amendment to good, non-controversial motions, even though the principle was broadly accepted by the Government of the day. The Government, with its fresh ideas, might consider supporting good, well meaning motions which would then have the unanimous support of the House.
Senator Rónán Mullen has made his points well in support of the introduction of whistleblowing legislation. The last Government did not ignore this matter, but, rightly or wrongly, previous Ministers for Justice and Equality were advised that a sectoral approach was the correct one to take. I do not think it was, however; a universal approach should be taken to setting out our strategy to protect whistleblowers. The Government’s commitment to achieving this objective should be commended and supported.
The Taoiseach recently mentioned a proposal to hold a referendum on this issue which might be held on the same day as the Presidential election. I would not have a great difficulty with that, except that the most important referendum we need to hold, sooner rather than later, is that on children’s rights, a subject which has been on the agenda for over a decade. It should be fast-tracked. Such a referendum will be complex, serious and important; therefore, it should not be held in tandem with any other.
The last Government and its predecessor introduced some whistleblowing provisions in a piecemeal fashion adopting a sectoral approach, including in the Health Act 2007, the Communications Regulation (Amendment) Act 2007, the Labour Services Act 2009, the Charities Act 2008, the Chemicals Act 2008 and the Employment Law Compliance Act 2008, among others. Therefore, a serious list of proposals were introduced by the last Government.
If one takes the Rostrevor House Nursing Home case, it is interesting that there seems to be a stigma in Irish society in that we are slow to come forward to expose wrongdoing within particular organisations. I am not sure if it is just a fear of being exposed. Perhaps there is something in the Irish psyche that we hate grassing on others, as a result of which, with or without protection for whistleblowers, people are slow to put up their hands and come forward with information. Senator Feargal Quinn said somebody had come to him directly and that he had two options. It was appropriate that he went down that road, rather than going to the media to expose the matter.
While we obviously wish to protect whistleblowers, we must be careful because we do not want to end up with a crank’s charter. I was impressed by the latter phrase. As a member of the legal profession, I am aware that a number of years ago a number of individuals who were paranoid about solicitors and the legal profession in general set up websites. In most instances, they were extremists. In a recent case, in which an engineer was blatantly wrong, six firms of solicitors and 19 defendants ended up in the High Court. Therefore, one must be careful in dealing with such issues because it was obvious from day one that he was a crank. I am not saying, however, that there is no wrongdoing in the legal profession. There obviously is and it should be weeded out, but there are also extremities. I ask the Minister to ensure that when the legislation is introduced, there will be balance. By all means, we should protect whistleblowers — 90% of them are decent people who want to expose a wrong in their place of work — but at the same time we must ensure there will be some safeguards in place to ensure we do not end up with a crank’s charter.
I cite the case of a medical person who had 5,000 or 6,000 leaflets circulated about them in a particular town. Damage could have been done to this decent person by somebody who had a personality difficulty with the medical doctor in question. We must ensure this activity is curtailed also.
I welcome the thrust of this laudable motion and thank Senator Rónán Mullen for introducing it. I also welcome the tenet of the Government side in stating it supports it but wants to do its own thing, although I would like to see the day when we can adopt a reformed approach. As I said, when I was on the Government benches, we inevitably opposed Opposition motions, but we should take a broader view in the future. If a motion receives all-party support in principle, perhaps the Government might take it on board and deal with it when the relevant legislation is brought before the House.
The commitments given in the programme for Government are specific in regard to whistleblowing. The programme states the Government will introduce whistleblowers legislation. The Government has reaffirmed its commitment to legislate to protect whistleblowers who speak out against wrongdoing or cover-ups, whether in the public or private sector. The Minister for Public Expenditure and Reform will shortly seek Government approval to prepare framework legislation providing for a universal legal charter covering reporting in good faith and providing protection for all employees in the public and private spheres who engage in disclosure. The work will be advanced by a specially created new reform unit with the Minister’s Department, about which we were informed earlier today. The Minister has instructed that this work be given top priority.
The Minister envisages that the provisions to be adopted in Ireland should reflect those applicable in the UK. Its key whistleblowing legislation is the Public Interest Disclosure Act 1998. This applies to almost all workers and employees who ordinarily work in Great Britain. The areas covered include criminal offences, risk to health and safety, failure to comply with a legal obligation, a miscarriage of justice and environmental damage. The protections available to all UK employees under the UK Act were given legal effect in Northern Ireland by the public interest disclosure order 1998 and came into operation on 31 October 1999. The order offers a framework of protection against victimisation or dismissal for workers who blow the whistle on criminal behaviour or wrongdoing, as defined in the legislation. All employees and other whistleblowers protected under the Act are given equal protection. The same protections are not available universally in the Republic of Ireland and the Government intends to make good this deficiency as a matter of urgency.
The main objectives of the proposed legislation are to bring about a change in behaviour and attitude towards wrongdoing in Irish public and corporate life. That would be welcome and is long overdue. I hope the proposed legislation will be brought in by the Minister with the greatest possible expediency. A further objective is that the introduction of comprehensive whistleblower legislation will bring about a radical change in company behaviour and create a safer environment for people to speak out about wrongdoing in the workplace or in public life. I second the amendment.
Senator Jillian van Turnhout: I, too, welcome the opportunity to discuss whistleblowing legislation. I welcome the work done by Senator Mullen in tabling this motion. I also acknowledge the work of Transparency International in this area. It provided an excellent briefing for us which assisted us in our preparations.
In preparing for the debate on this motion, I talked to many NGOs because they are often left to deal with some of the consequences in this regard. I refer in particular to NGOs working in the area of older people, such as Age Action, whose representatives speak about front-line carers being the ones who have the exchanges with older people and who are seen as a trusted source. We need to ensure appropriate legislation is in place. An inspector will not simply inspect a premises and automatically see what is happening there. We need to protect workers whereby, if they come forward with an allegation, first, it is seriously considered and, second, action is taken.
The whistleblowers who came forward in the case of the Rostrevor nursing home did the State an excellent service. They risked everything to stop abuse happening. This took courage and integrity. The position of migrant workers has been highlighted by Migrant Rights Centre Ireland. Many migrant workers are particularly vulnerable because their work permits are connected to their employer. Therefore, there is a fundamental problem in encouraging them to be whistleblowers, where necessary. Senator Mullen answered a question I was going to ask about the 16% of workers in the Irish labour force who are migrant workers. I understand this is 16% of health and home care sector workers. I was surprised at that high figure.
We need to protect our whistleblowers because, if we do not, it sends a message to those in power that they can use that power. I understand what Senator Quinn said in this respect. Whistleblowing is not about running to the newspapers; it is about responsible employers and taking action. It is the carrot and stick approach. People need to feel that, if they do not take action, something will happen and that there will be consequences. That is the way life works. For me, that is a strong point as to why we need whistleblowing legislation. The State needs this protection for whistleblowers. It needs to ensure workers are confident, feel protected and feel they can put the welfare of people such as the patients in the Rostrevor nursing home first and foremost rather than having to be concerned about their residency status, worker permits and other related issues. This legislation is extremely important because it will a law that will challenge the culture of secrecy in Ireland. Senator O’Keeffe spoke on that issue. She rightly said that we cannot legislate for people to tell the truth. We can, however, protect people and ensure there is an appropriate culture to ensure people come forward and tell.
On that note, I acknowledge the words of Senator O’Donovan. The promised referendum on children’s rights is long overdue. I acknowledge that this legislation is not about children but it is about culture in Ireland. It is about listening to people and ensuring that, if people come forward with an allegation, we will listen. People believe that has all been accepted, but six years ago I started working with the Children’s Rights Alliance. I did an interview with a very well-renowned national broadcaster and talked about the need to listen to children. One would think that is a simple enough statement particularly when it comes to abuse. I was challenged on public radio with the response that children lie so why would we listen to children. Six years have past. I do not need to convince as many people that we need to listen to children but there is still a culture where people would claim that people lie, it is in their interests to lie so why would we listen.
There is twofold reason I am supportive of this legislation. I believe it will have the effect of changing our culture in Ireland, protecting employees and protecting employers in order that they can be responsible, take action and change that culture within their organisations. Successful businesses tell us that the culture of the organisation drives success. State agencies all too often have become complacent and we need to ensure we have that culture. We have seen the work of the Health Information and Quality Authority, HIQA, recently. Increasing demands have been made on it to get involved in more areas, especially in the child care sector, because it is building up a reputation of being able to listen to people.
I support the motion. I note the commitment in the programme for Government to bringing forward legislation in this area and I hope we will see it shortly. For me, this is about reversing the culture of fear.
Senator John Gilroy: I welcome the Minister of State, Deputy Sherlock, to the House. I also welcome the debate on this Private Members’ motion and the forthcoming legislation on this area which I hope will come to the House shortly. It will be a welcome addition to the employee protection law and it has wide implications for our society. In a country where the stroke and the shortcut is all too common — we saw a little of that not too far form this House recently — the proposed legislation will be particularly welcome.
We have seen repeated instances in nursing homes of staff who should be praised for having risked their careers in speaking out. The report by Ms Justice Maureen Harding Clark on the Neary case in Our Lady of Lourdes Hospital in Drogheda, to which Senator Mullen referred, found that concerns were being continually raised as early as 1978. It was not until nearly 20 years later that two midwives risked their careers to highlight their concerns. At that time, and it is still probably the case although to a lesser extent today, the authority of some senior medical staff was seldom questioned and the devastating effects that had on the lives of hundreds of women are all too clear to us. This reluctance to speak out was shared by hospital managers, junior doctors, anaesthetists, surgical nurses, general practitioners and many more.
We do not need to reinvent the wheel when it comes to whistleblowers legislation because the Public Interest Disclosure Act in the UK has been seen to work rather well. In its passage through the parliament in the UK it received cross-party support and was supported by trade unions and business organisations because it was seen to be in everyone’s interest that such legislation would be forthcoming. It should, therefore, be welcomed here across parties and by all sectoral interests as well.
In the UK it has created greater awareness of employee rights, greater willingness to speak out about wrongdoing and more positive public attitudes towards speaking out. It is seen as a model that many other countries have adopted as well. I do not want to give too many statistics but a survey in the UK found that 86% of senior executives feel more free to report a case of suspected fraud or bribery compared with 54% of similar grades in European countries that do not have whistleblower protection legislation. However, the UK model is not without its problems. One of the concerns raised is the issue surrounding the definition of what is reasonable and in good faith. Several court judgments have clarified this in the UK and it is now recognised that the words “without maliciousness”, when added, are sufficient. That would go some way towards addressing Senator Quinn’s concerns in regard to the cranks charter. I agree with Senator Quinn in that regard.
Another matter for concern highlighted in the UK legislation has not been addressed, namely, the extension of protection to apply to proceedings before a professional body when an individual may be at risk not alone of losing his or her job but his or her career. I refer to a case in the UK, Harwood v. the Central Council for Nursing and Midwifery, involving the removal of the principal from the register of nursing, thereby ensuring she lost her licence to practice. The facts of the case relate to a secret recording of neglect of a patient. While the fitness to practise committee balanced the rights of patient confidentiality with the whistleblowers legislation, it conceded that this was a case of exceptionally serious concern. The nurse’s name was subsequently removed from the register, resulting in her losing her job and career. This issue has particular reference to a professional body and organisation.
While the proposed legislation goes a long way towards offering protection to whistleblowers, it is not a panacea for all problems. It has proved difficult to protect persons after the event from victimisation or unscrupulous or vindictive employers. More than 15% of whistleblowers in the UK were dismissed from their jobs before their cases came before the UK equivalent of our appropriate officer. We can learn a lesson from this. There is no mention of whether the findings of the appropriate officer would be made public, which I believe is a serious weakness of the proposed legislation on whistleblowers. It is strange that a law on the promotion of transparency and accountability would not itself be accountable and transparent, which is the least we would require.
While clearly no one wants the establishment of another quango, I would like to see in place a body similar to the Public Concern at Work Organisation in the UK, which offers support for people availing of this type of legislation. This body could be attached to an organisation such as the citizens advice centres. The four main areas in the UK where the Act is seen as being particularly successful are, in Government, financial services, health and social services, all of which hold a particular resonance with people in Ireland. This motion is timely, important and not dissimilar to the proposed legislation or proposed amendment to the motion. With some caveats, I support the motion. I hope to put forward some amendments to the legislation when it comes before the House.
Senator John Crown: I am a whistleblower. I had the experience when I first returned to Ireland of being involved in a few whistleblowing events which taught me much about the manner in which this country is run. As a result, I am extraordinarily supportive of all efforts to try to ramp up the level of protection in place for whistleblowers. Over the years, there has been an increasing level of tolerance and encouragement for whistleblowers who are tackling vested interests other than those which are the government, including the agencies.
It was apparent to me, when I returned to Ireland in 1993, that there were severe deficiencies in cancer services. Doctors are accused of waving shrouds and creating public hysteria on alleged deficiencies when they are speaking in their own self interest. However, by any objective assessment, contemporaneously or historically, it is now widely recognised — and has been recognised by several Governments — that the circumstances which applied in cancer care in Ireland in the early to mid-1990s were dramatically below the standards that would be acceptable in an equivalently economically resourced European country at that time.
When I first started making some noises about this, a senior colleague in my institution, famous not alone for his brilliance as a clinician, researcher and academic but his extraordinary ability to cultivate relationships with officials in the Department of Health and Children and other branches of Government, took me aside for a friendly word and told me: “Whatever you do, if you do make any noises about deficiencies in the cancer services, make sure you don’t do it individually. Do it through your representative organisation. If one does not exist, found one because if you do it on your own you will find yourself in a very substantial degree of personal career peril with officialdom.” I was not, perhaps, then as diplomatic as I am now and had a little difficulty taking this advice.
When, through the channels, I first made overtures to point out the extraordinary level of problems we had and the fact that in a real and proximate sense patients were every week in this country dying or having their prospect of a cure or survival greatly impeded not by a lack of medical knowledge but a failure of a system to apply knowledge which existed, I found myself frustratingly being thwarted, rebuffed and brushed off as yet another hysterical doctor. I must admit that after a while this got to me and I decided this should be a matter for vigorous public debate. During the following year, mid to end 1994 to 1995 I ensured it was. The process was successful, brought about not alone by me but many others. In 1995, the then Minister for Health and Children, Deputy Michael Noonan, admitted that there were grotesque deficiencies in the cancer services and set about putting them on the top of the national agenda.
Having blown that whistle, I was informed by senior colleagues in my hospital that it was good I had completed the first year of my employment as a consultant because during the first 12 months of one’s employment one is on probation and can be terminated, not in the Arnold Schwarzenegger sense but in the career sense. I was delighted to know I had got over that hurdle. When attending a meeting of the board of my hospital, I was then told that it was the wish of senior figures that I be less vocal about deficiencies in Government policy on cancer services because it had been communicated to the hospital by certain officials that there was a real chance that planned developments, which were necessary in our hospital, might go elsewhere. When finally the issue was on the public agenda, I was brought into the Department of Health and Children together with other colleagues for a chat during which we were told that it was the wish of the officials that there be no more public debate about this matter and that it would now be dealt with internally. When I said that I was not in favour of a policy of omerta, the Sicilian code of silence, on issues of this type we were somewhat brushed off. It happened. There was substantial debate about deficiencies about cancer services. It is an awful shame it had to take that route. I learned some lessons along the way in regard to how the process works.
For the reasons outlined, I am defensive of the notion of whistleblowing in the health service. We must ensure we protect not alone whistleblowers against hospital administrators, senior nurses, senior doctors, religious orders but whistleblowers against the organs of the State.
Senator John Crown: The Drogheda story was clearly one of many great tragedies. Many women had their lives terribly altered and ruined as a result of medical bad practise. I was struck by the fact that there was no real debate at that time about the structures in place in that hospital. Why was it that so much could depend on the actions of a single doctor? Was it appropriate that a unit would be so under-resourced that there was not in place a critical mass of experts who could perform the type of peer review on one another that should take place elsewhere? Was it appropriate that a hospital, which for many years did not have an intensive care unit, was performing surgery like this? What would have happened if in the middle of the night somebody started bleeding or if a surgeon panicked and did not know what to do and there was no blood bank on site? I was always struck by the fact that none of these issues were brought up despite their being critically important.
I had other experiences. I recall the famous episode of “Father Ted” in which he wins the golden cleric award and takes advantage in the pulpit to settle old scores. I will not do that today because I respect the fact that parliamentary privilege provides us with an opportunity to say things against which an appropriate defence cannot be raised. I welcome the Minister of State, Deputy O’Dowd, to the House with whom I hope we will have some discussion at a later stage on research issues. I strongly support the movement towards an increased culture of protection of whistleblowing. I draw everyone’s attention to the fact that there was an attempt, when the last senior specialist contract was introduced several years ago, to ensure it contained a gagging order, implicit in which was the notion that the only people who could be advocates on behalf of patients were the people who owned and ran the service, namely, the Government and its officials.
Senator Colm Burke: I welcome the Minister of State to the House. I thank Senator Mullen for tabling the motion. It is important we debate the issue and that legislation be introduced. Many people employed in the public and private sectors are aware of illegal activities but are afraid to come forward. In the present economic circumstances, people are afraid for their jobs, afraid of damaging promotion prospects and even afraid for the jobs of members of their family.
I wish to give an example of how we have changed our attitude in the past ten years. Approximately 15 years ago, a Deputy asked me to meet some constituents who had a child with a disability. There was abuse going on in relation to the child. Over the previous ten to 12 days the parents had gone to four different groups of people highlighting the problem and their concerns. They had approached the Garda, the school, the bus owner and the health service, but none of them would act. When they came to me, I made a call to the health service and the Garda. I even threatened that I would personally take the family to the Rotunda Hospital in Dublin to have the child examined. It was only then that action was taken. No family should have to go through such an experience when a serious allegation was made. That is the kind of issue we have brushed under the carpet for far too long. To this day we might think that it does not go on, but it does and we are reluctant and slow to take action.
Another example occurred in the Department of Health. For 28 years health boards continually highlighted the issue of nursing home charges, but we hoped the problem would go away. It ended up costing the Department more than €400 million. Again, many people were afraid of highlighting the issue and doing something about it. This was at a time when I am sure many health board employees knew what they were being asked to do was incorrect but because no procedure was available to them to blow the whistle, they were afraid of taking any action.
We have an opportunity now because there has been a total change in attitude in the past ten years. However, we have not provided the protection or put the necessary legislation in place. It is interesting to consider legislation in other countries. One country’s legislation specifies under the heading of “disclosure”:
These are five headings included in that legislation which covers a wide area but at the same time allows people to highlight an issue where they have concern and where protection is given in that country.
A Senator mentioned the British Public Interest Disclosure Act 1998, which has been in place for more than 13 years. In many countries the requisite legislation is in place. Sometimes it might be argued that it has gone overboard, but at least we have plenty other legislation to examine and establish best practice for this country. We need to put in place the necessary protection for people who have genuine concerns. I therefore welcome the proposal and will support the amendment tabled by the Leader of the House. There is an urgent need to introduce the necessary legislation.
Senator Brian Ó Domhnaill: Is cúis áthais é domsa deis a bheith agam labhairt ar an rún atá os comhair an Tíón Seanadóir Mullen, agus tá lúcháir orm go bhfuil an rún tábhachtach seo os comhair an tSeanaid tráthnóna inniu. I compliment Senator Mullen on tabling the motion on what can be described as essential legislation to give protection to individuals who simply want to tell the truth and who are often discouraged from doing so owing to the lack of protection they are afforded. In conjunction with the Fianna Fáil Senators, I look forward to supporting Senator Mullen’s proposals in this regard.
As public representatives, we all receive inquiries or calls from individuals working in the public or private sector who feel the necessity to provide information in an open forum but do not feel confident they can do so because they do not have the legal protection. It is obviously also a cause of concern to us as public servants that individuals would find themselves in that position. While one could argue that some progress has been made in recent years through the sectoral approach Senator O’Donovan mentioned, whereby some elements of whistleblowers protection was enshrined in various Bills approved by the Dáil and Seanad, that was not the correct manner in which to address this issue. The Government needs to introduce comprehensive legislation to give protection to people who feel the necessity to provide information to bring honour to their profession through the knowledge they possess. There have been incidents such as what happened at Rostrevor House where the true facts did not come to light in time and individuals who were under care suffered as a result. It is incumbent on us as legislators to ensure legislation is introduced as soon as possible to deal with that anomaly.
The motion notes: “that less than 40 per cent of Irish employers claim they promote whistleblowing in the workplace compared to almost 90 per cent in the United Kingdom where universal whistleblower safeguards are enshrined in law”. The facts are startling and show there is a total lack of confidence from an employer and employee point of view. The facilitation of whistleblowing or telling the truth is not made available.
I welcome that the Government intends to introduce whistleblowers legislation and there were indications that a referendum would be held on the issue at the same time as the presidential election. I am somewhat disappointed that there appears to be a move to delay this, with the holding of a referendum on the issue being put back to some time in the future, possibly 2012 or later, and that other referenda would be held in conjunction with the presidential election later this year. It is essential that legislative provision is made to provide whistleblower protection, which is why it is so important that we support the motion. There should be cross-party support for it because, while we all have our political allegiances, we also have an obligation to ensure the truth is heard and to provide protection in order that people will not feel isolated or believe they will be penalised if they tell the truth. The position of migrant workers offers one example. I have spoken to migrant workers in my constituency who sometimes feel because they are in vulnerable employment that they must protect their job rather than do the right thing. We have an obligation to ensure all citizens of the State, whether they were born here, are given legal protection to tell the truth. I hope the Government sees sense in the motion which has purpose and will ensure it is supported and fast-tracked, if at all possible.
Given that the Government is pushing back the date of the referendum which may be held in 2012, this draws us onto the second point, namely, the referendum on the protection of the rights of children, which is vitally important. It appears this referendum is also being delayed to 2012, which is a major concern. Never was it more important to protect the 1.1 million children in the State. The Constitution states all the children of the nation should be cherished equally, yet we are not affording the opportunity to protect them by delaying the legislation. In the other House yesterday and again today a Private Members’ motion is being debated to provide for the adoption of children in order to give them loving homes and allow Irish families who want to adopt children the right to do so. While I say it without confidence, I hope the legislation will be supported by the Government in the other House, given that all of the relevant parties and stakeholders are in agreement with the contents of the motion.
I compliment Senator Rónán Mullen on bringing forward the motion which is important in terms of the value we place on the truth. It is important to the protection of vulnerable persons within society, particularly in instances where people are in the care of institutions, including homes for the elderly. We all know of cases in homes for the elderly in which the care provided may not be at the level it should be. Some of those working in such institutions may want to say more than they can and they should be free to do so. While I understand there is an amendment to the motion, I make an appeal that the motion be supported and the legislation driven forward.
Senator Martin Conway: I join colleagues in commending Senator Rónán Mullen for bringing forward this very important Private Members’ motion. We lag way behind, unjustifiably so, in bringing forward whistleblower legislation. As was pointed out, such legislation has been in place in the United Kingdom since 1998. When one considers some of the scandals that have happened in this country in recent decades, their revelation required the bravery of individuals who were prepared to put their necks on the line. I think, in particular, of what Senator Susan O’Keeffe has done during the years and the great work done by journalists such as those involved in “Prime Time Investigates”. It should not be necessary for individuals to go to journalists to have wrongs righted or exposed. There should be a mechanism within the State to protect those who decide to do the right thing.
There is never smoke without fire; the problem is that the smoke is invisible. There is, unfortunately, an Irish culture of “hear no evil, see no evil”, whereby a certain minority who know a wrong is being done are not prepared to admit it is not right and should be corrected.  Whistleblower legislation might help to change the culture of saying nothing and keeping to oneself information on wrong behaviour. We must look at what has been done by brave individuals during the years.
I am glad the new Government has included the introduction of whistleblower legislation as a priority item in the programme for Government. While there is an amendment to the motion, which I support, we are taking different roads to the one location. Senator Rónán Mullen can be reassured that the sentiments he has outlined echo those of the Government and Members of the House on all sides. I do not want to repeat what others have said but simply note that what has taken place during the years in various institutions such as the Garda Síochána and the HSE has been nothing short of a disgrace. Had we whistleblower legislation in place ten or 15 years ago, it would have made life much easier for many and, possibly, protected the lives of some of the most vulnerable in society.
Tá an-áthas orm labhairt ar an rún seo agus tréaslaím leis an Seanadóir Mullen faoin rún a thabhairt chun cinn. Tá sé fíor thábhachtach. Is rud é seo a raibh Sinn Féin á lorg le fada an lá agus a bhfuilimid fós áéileamh. Tacaímid, go ginearálta, leis an rún féin agus leis na cásanna atá curtha chun cinn ó gach taobh den Teach. Tá na cásanna éagsúla ar fad tábhachtach.
Dá bhrí sin, nílimse chun dul siar ar na cineálacha céanna ach ba bhreá liom roinnt samplaí a thabhairt den chinéal cos ar bholg atá fós á imirt maidir le daoine atá faoi leatrom. Rinne an Seanadóir Crown tagairt don HSE, agus tá eolas agam ar dhuine atá ag obair, i ngrád sinsearach go maith, san HSE thiar. Cuireadh gag ar an bhfear céanna mar go raibh sé ag labhairt amach ar ábhair áirithe a bhain leis an HSE san iarthar. Dúradh leis go gcaillfeadh sé a phost agus nach raibh cead aige ráiteas ar bith a dhéanamh go poiblí muna mbeadh an ráiteas sin déanta tríd an oifig preasa a bhí ag an HSE. Is mór an náire é sin mar bhí an fear seo ag iarraidh aird a tharraingt ar easpa seirbhísí agus ar rudaí míchearta a bhí ag tarlú sa cheantar sin.
Bímid ag breathnú, b’fhéidir, ar na cásanna móra uafásacha a tharla ó thaobh chúram leanaí de nóó thaobh na tithe alltranais de, ach tá sé ag tarlú ar gach leibhéal. Tá sé ag tarlú ar na leibhéil níos lú, na leibhéil phobail. Ghlaoigh bean ormsa inniu. Tá sí ag obair i gcomhlacht deonach agus tá sí ag iarraidh aird a tharraingt ar mhí-úsáid atáá bhaint as deontais Stáit. Tá deontas faighte ag an gcomhlacht a bhfuil sí ag obair leo ar rud amháin ach áúsáid ar chúinsí eile. Tá faitíos ar an mbean sin labhairt amach mar tá a fhios aici go bhfuil an-seans ann má labhraíonn sí amach go bhfaighfear bealach éigin chun fáil réidh léi as an bpost atá aici faoi láthair. Tá an reachtaíocht seo fíor-thábhachtach ag an leibhéal sin chomh maith.
Tá cás eile sa Ghaeltacht i láthair na huaire, cás an chomhlacht MFG Teoranta. Tá oibrithe atá ag obair leis an gcomhlacht sin le trí bliana ag iarraidh an fheadóg a shéideadh ar rudaíáirithe atá ag tarlú sa chomhlacht sin. Rinne siad é sin le polaiteoirí ach tugadh an cluas bhodhar dóibh agus tá an cluas bhodhar fós á thabhairt dóibh. Tá baol ann ní hamháin go mbeidh a bpoist féin caillte, ach go bhfuil an comhlacht féin le leachtú agus go mbeidhdeireadh leis.
Thug mé an-suntas don mhéid a dúirt an Seanadóir O'Keeffe níos túisce. Bhí an ceart ar fad aici a rá go ndeireann cuid mhaith de na daoine a tharraingíonn aird ar na rudaí seo “there is nothing in it for us”. Téann sé níos faide, áfach. Ní hamháin nach bhfuil aon rud ann don duine a shéideann an fheadóg, ach tá an t-uafás le cailleadh aige nó aici. Is féidir leis na daoine seo a gcuid cairde, a gcuid poist agus an ról atá acu i measc an phobail a chailleadh. Má tharraingíonn siad aird ar rud, b'fhéidir go n-iompóidh an pobal ina gcoinne már pháirt den “don't rock the boat” mentality atá againn.
Senator Trevor Ó Clochartaigh: Ceart go leor. Ba mhaith liom a lua, ar aon chuma, go dtagaim leis an méid atá sa leasú agus an brí atá aige. Ba cheart go dtógfar ar bord an cineál imní atá orainn. Chuir muid an leasú seo chun cinn chun aird a tharraingt ar chúpla réimse eile den ábhar seo gur gá plé agus díospóireacht a dhéanamh fúthu. B’fhéidir nach bhfuil aon tagairt déanta ar chúrsaí polaitíochta go fóill. Tá cronyism ag tarlú sa tír seo le riar mhaith blianta. Baineann go leor de na fáthanna nach bhfuil daoine sásta an fheadóg a shéideadh le brú polaitiúil ar leibhéal áitiúil, leibhéal réigiúnach nó leibhéal náisiúnta. Tá faitíos orthu faoi chéard a tharlóidh don eagraíocht ina bhfuil siad ag obair, an deontas a fhaigheann an cumann peile áitiúil, nó cad a tharlóidh a gclann ó thaobh na polaitíochta de amach anseo.
Is féidir linn breathnú ar na scannail a tharla i gcás Tobar Gáis na Coiribe — na rudaí a rinne Shell E&P Ireland, na socruithe ó thaobh pleanála de, an cos ar bolg ar an bpobal áitiúil agus na líomhaintí maidir le mí-iompair na ngardaí a chualamar le déanaí. Dá mbeadh reachtaíocht den chineál seo in áit, ní dóigh liom go mbeadh rudaí den chineál sin tarlaithe. Tá súil againn nach mbeadh, ar aon nós. Ní leor reachtaíocht a thabhairt isteach — caithfear an cultúr iomláin a athrú. Muna féidir linn é sin a dhéanamh, ní athróidh aon rud. Tá sé tábhachtach ní hamháin go ndéarfar na rudaí atá le rá, ach go gcloisfear iad, go dtógfar ar bord iad agus go ndéanfar rud éigin fúthu. Go leor den am, tá an Stát leatromach. Rachaidh mé ar ais go dtí an méid a tharla do na sceithirí i gcás MFG. Bhí orthu — an dream a bhí ag iarraidh aird a tharraingt ar an rud a bhíá dhéanamh mícheart — dul tríd an gCúirt Oibreachais agus déileáil le cúrsaí stailce. Cuireadh daoine ar ais ar an dól le haghaidh tréimhse gan aon phá reatha ag teacht isteach acu. Tá siad ag úsáid na n-ionstraimí atá againn, ach níl na hionstraimí sin ag feidhmiú ceal acmhainní. Má tá reachtaíocht den chineál seo le cur i bhfeidhm, tá sé tábhachtach go gcuirfear na hacmhainní——
Senator Kathryn Reilly: Our history is littered with examples of how poor government gives way to bad practice. Those who had the power to protect became the abusers of those who were the most innocent in our society. Senator Susan O’Keeffe said we cannot legislate to make people tell the truth. However, we need to ensure the legislation we put in place facilitates as much as possible that truth and transparency come to the fore. It does not bode well when the word we use to describe these people has negative connotations. The word “whistleblower” as Gaeilge is “sceithre”, which means squealer. We need to try to encourage truth and transparency. Senator Ó Domhnaill referred to the value we place on the truth and we need to ensure words we use do not have negative connotations.
When people come forward to tell the truth and to highlight abuses in the system, they should not be viewed negatively and looked down on. A good friend of mine raised an issue about a public hospital. He very much rejects the use of the word “whistleblower” because of the way he was treated in the workplace and the way he was forced to leave.
We need to be advocates for people who come forward, tell the truth and shine a light on these abuses and to ensure they receive as much respect as possible. We need to examine use of word “whistleblower” or “sceithre” because it does not bode well for people who tell the truth.
Senator David Norris: I welcome the Minister, Deputy Howlin, who is a very appropriate Minister to take this motion. I agree with the previous speaker from Sinn Féin, Senator Kathryn Reilly, who said there may be some difficulty with the word “whistleblower” because in Ireland there has been a tradition of not particularly warming to informants. I remember Liam O’Flaherty’s book, The Informer. She referred to squealers and so on. However, we have the Garda confidential number, which is very important. It is very important in my area, in particular with the drugs problem, and I approve of it. We need to cleanse the name and make it acceptable. I very much welcome the fact that the two previous speakers belong to a party which, in very large part, has accepted this process as part of our democracy. It is true in regard to tax as well.
My colleagues on the Independent benches — I congratulate Senator Mullen, in particular, on placing this important matter before the House — have concentrated on the medical area, hospitals and so on, so there is not much point in my dealing with that. However, I concur with every word they said. I was particularly impressed by the passionate conviction of Senator Crown who is an important voice in this House.
I have a suggestion which I have made to my friends in Sinn Féin, to Senator Mullen, who tabled the motion, and to the Leader of the House in a telephone conversation. It is a pity that every Wednesday we get into this oppositional situation when in circumstances such as this, we are all on the same side. As we did at my suggestion last week, we should arrive at consensus in this matter, so we can strengthen the Government’s hand in addressing it.
This requires certain action which I have suggested and which I understand the Leader is considering, that is, to take the motion in the names of Senators Mullen, Quinn and me and add to it the words in the Government amendment which agree and chime with what has already been said. They are not contentious. I have suggested to my Sinn Féin colleagues that they consider removing the only contentious words in their amendment which are in the first line, that is, “the appalling record of the State”. Words like “appalling” raise people’s hackles. They have very kindly indicated to me that they would be prepared to delete them. Their amendment would then start with the words “the need to instill an ethos of good business practice”. Who could possibly disagree with that? Their amendment calls on the Government to do certain things, the first four of which are directly transcribed from and support our motion. If one does that, one arrives at a composite motion which covers every party in the House, can be agreed unanimously and which should not offend government. I am waiting to hear from government and the Minister on this matter.
I do this in an attempt to be helpful and to ensure the dignity and positive engagement of the Seanad with government continues so that we work together in the interests of the people because that is so important. I am most grateful to my colleagues for having listened to this suggestion.
I move on to my particular interest in this matter. I am glad the Minister, Deputy Howlin, is here because I wish to refer to two matters in the financial world and ask for his assistance in bringing them to government. The first matter is one I raised in 2008 and which is ongoing. It concerns somebody who was at the top of Irish Small and Medium Enterprises, ISME, and I know the Minister is quite familiar with it and that questions have been asked. There is no question of doubt in that a man was framed with the assistance of the authorities, of Departments and of certain elements in our fraud squad. It is an appalling situation. This happened because there were certain changes in EU regulations and we had to massage the figures. It is a highly dangerous situation.
Senator John Gilroy: I apologise to the Acting Chairman for my disrespect. I wonder about the relevance of what Senator Norris is saying. It seems rather far off the mark from the motion being debated. There was a vehement interjection from the Chair in a similar case involving Senator John Kelly only yesterday.
Senator David Norris: I raised this matter and it was not challenged. Questions along these lines in support of what I say were asked by members of the Senator’s party. Questions were asked in the other House by Deputies Ruairí Quinn, Phil Hogan, Ciarán Cuffe — who is no longer in the Oireachtas — and Jimmy Deenihan. It is a non-contentious matter among ourselves, although I agree with the Senator that it is very serious. It is troubling to have to raise the matter.
I am grateful to the Senator for inquiring about the relevance of whistleblowing. This man blew the whistle on a practice that was very dangerous for this country with regard to its position in the European Union. For his trouble he was rewarded by first being framed — an act which has been exposed — and then by losing his job. He was a whistleblower and he paid for it. I would have thought that was germane to the debate but if not, I stand corrected.
Senator David Norris: I will mention a second case for the Minister, which I ask him to investigate. I raised the matter on Tuesday, 23 February 2010, and it relates to a series of very serious breaches of liquidity regulations by one of the senior banks in the Irish financial services sector. The issue was not taken up anywhere except eventually by one newspaper which copied my Adjournment motion and did not attribute anything to me. It was the Frankfurter Allgemeine Zeitung. I ask the Minister to refer the matter to the appropriate Minister. The Government took up such matters when in Opposition and I would like to see the colour of its money now.
Acting Chairman (Senator Paschal Mooney): Yes, although I regret that I was not able to respond as quickly as I should have because I was otherwise engaged. For the sake of clarity, Senator Norris’s proposals are just that; as I explained earlier to Senator Ó Clochartaigh, only one amendment can be before the House at any one time and the Chair has not received any indication of further amendments and we do not recognise them. It is a matter for the Leader at the end of the debate to clarify the position with regard to the remarks of Senator Norris.
Deputy Brendan Howlin: I am gratified to hear that and I would have been surprised if the Senator had left. I know if he had left it would have involved an urgent matter. After a long absence I am delighted to be back in the House twice in the same day. I will take the concluding Stages of the next legislation also.
I will address Senator Norris’s suggestion first. My officials have indicated that there has been overwhelming support across the House for the introduction of overarching whistleblowing legislation, which I have sought for a very long time. We introduced a Bill in the other House in the last term and another Bill was introduced by my colleague, Deputy Pat Rabbitte. This fits extremely well into the architecture of transparency that we are determined to set into normal practices across business, public administration and the way Ireland Inc. does business.
With regard to the very generous and helpful proposal from Senator Norris, I know the Senator is well versed in procedure and he cannot introduce his proposal as an amendment. I understand that all the points made have been supportive and some creative suggestions were made by Senators. I will carefully study all contributions before crafting the legislation I want to bring to the House at an early date.
Tonight provides me with the opportunity to reiterate my commitment in advance of legislation, which is urgently required. I do not particularly want to support a demand from the House to do something when I have already spent years negotiating for it to be done and had it enshrined in the programme for Government. I will update the House on the Government’s decision on the matter and set out the main objectives and considerations that will guide my approach to this legislation.
The commitments in the programme for Government are quite specific and we will introduce whistleblower legislation. I make it crystal clear that we will do so in an overarching way. It is important also to make the point that the content of the original motion tabled today for debate highlights all of the reasons swift action is required in this area. I strongly commend Senator Mullen and the co-signatories of the motion for allowing me to make this contribution and correctly focusing this House on the important issue.
Ireland lags behind — certainly in the English speaking world — in the protection it affords to whistleblowers. I heard the distinguished Senator’s comments regarding an leagan Gaeilge for “whistleblowers”, and I will consider that in the context of the legislation to see if there can be a more delicate phrase that may better reflect what we intend.
The United States, the United Kingdom, Canada, Australia, New Zealand and South Africa have all enacted statutes prohibiting an employer from retaliating against employees for disclosing unlawful conduct. All of these statutes cover public and private sectors to some extent. Although no international agreement or convention necessarily mandates protection for good faith reporting at this time, there is a strong acknowledgement and recognition in a number of important international fora of the need for comprehensive legal safeguards to encourage the potential for whistleblowers to bring to light issues of significant public concern. When an individual brought information to my attention, I felt very vulnerable when I had to defend myself in the High Court and the Supreme Court.
Deputy Brendan Howlin: When the legal bill approached €500,000, I was rather vulnerable until the matter was resolved. That kind of pressure should not be on any individual with regard to the rightful disclosure of wrongdoing, even if it is an allegation. The notion that a person must be absolutely right rather than just cause an investigation will put off people. We must allow for the proper authorities to investigate real concerns of wrongdoing without giving a crank’s charter. It will be a careful balance.
Deputy Brendan Howlin: As this House may be aware, in my comments at the opening of the Speak Up helpline at the Transparency Resource Advice Centre on 26 May I highlighted the Government’s intention to move swiftly to introduce legislation in the Oireachtas that will protect whistleblowers who speak out against wrongdoing or cover-ups, whether in public or the private sector.
The Government recently decided to introduce overarching legislation for enactment by the Oireachtas providing for good faith reporting and protected disclosure on a uniform basis for all sectors of the economy. The Government also decided to expedite the preparation of this legislation, the urgent requirement for which has been confirmed by recent events, many of which were alluded to in the very fine contributions made this afternoon in the House. In that context the Government agreed that the newly established Government reform unit in my Department should proceed with the preparation of legislation. It might be said that we are being a tad premature in establishing reform units in a Department which has not yet been established but we have decided to hit the ground running. I will seek the support of this House later in establishing the Department.
This legislation will conform to the key requirements I outlined on 26 May and I intend it to meet all of the main objectives highlighted in Senator Mullen’s motion. It will provide a universal overarching legal charter for good faith reporting and protected disclosure for all employees, as well as for contractors who may have vital information to communicate. As is the case in the United Kingdom and other jurisdictions, the legislation will cover those working in the public and private sectors. Recent events have highlighted the particular vulnerabilities that might arise in the case, for example, of migrant workers who might believe they are at particular risk of employer sanction and that the maintenance of their existence in the State might be challenged. A key priority will be to ensure the legislation treats all parties equally and fairly within an overarching legal framework that is open and transparent.
The House will understand it would not be appropriate for me to comment in detail on the elements of the motion relating to the current controversy surrounding the alleged abuse of patients at Rostrevor House Nursing Home. I refer Senators to the reported comments of my colleague, the Minister for Health who is examining these matters carefully.
The goals of the legislation I am committed to bringing forward are closely aligned with those of the Private Members’ motion before the House and the Private Members’ Bill introduced by my colleague, the Minister for Communications, Marine and Natural Resources, in 1999. The long-standing commitment to introduce whistleblower legislation was included as a priority measure in the programme for Government. I am strongly committed to delivering on this commitment by having appropriate legislation in place as soon as is practicable. The legislation will build on international precedents and best practice, the sectoral protections already in place in legislation and the provisions of the Private Members’ Bill. It will address a number of significant issues, including the precise definitions of “good faith reporting” and “protected disclosure” that will be adopted, the scope of the issues to be comprehended by whistleblowing, the rights of the complainant, the rights of the person, body or organisation complained of, the appeal mechanisms and the sanctions and redress.
The process of preparing the legislation will need to address any possible legal obstacles which may have led to the adoption of the sectoral approach by the previous Administration. I am on record as having drawn attention to the unsatisfactory outcome of the sectoral approach adopted. The unsatisfactory nature of the current situation is underscored by developments in a number of sectors, not least the banking sector, as detailed in the Nyberg report, to which I referred in my previous contribution in the House earlier today. The effectiveness of regulatory systems across the whole economy and society needs to be enhanced substantially. It is clear that in the absence of appropriate safeguards for whistleblowers, regulators will remain at a disadvantage in seeking to identify and produce evidence of the legal standard required of malfeasance and misconduct in public and private bodies. It is interesting that even where robust oversight bodies are in place, one has to depend on an individual within an organisation to blow the whistle. It is often the case that inspections do not reveal the full picture or the full truth. If regulators are at a disadvantage, the health, safety and economic and financial well-being of citizens will remain at risk from behaviour, the serious adverse consequences of which could have been pre-empted by early detection and strong sanctions.
Some significant sectors have been covered under the sectoral approach previously adopted. The legislation introduced provides an initial platform for the work that needs to be undertaken. However, I strongly share the assessment in the motion that the sectoral approach to whistleblower protection has afforded whistleblowers inconsistent, inadequate and often confusing standards of protection. Moreover, substantial sectors and activities in the economy are not covered. I will have regard to the comments made by Senator Feargal Quinn today. They will be considered when the legislation is being prepared. Partly as a consequence of the fragmented, unco-ordinated and ineffective sectoral approach, it is clear that public knowledge and awareness of the essential role whistleblowing can play in enhancing regulatory effectiveness and discouraging illegal and criminal behaviour are inadequate. This highlights the need, in parallel with the implementation of the proposed legislation, to strengthen awareness of the responsibilities of employees, provide for whistleblowing training and guide employers and their workforce.
I am not necessarily proposing that the existing legislation be overturned. It is appropriate to have specific sectoral safeguards to address specific sectoral issues and risks that might arise. It is essential that sectoral measures operate within a coherent and cogent overarching society-wide framework which provides legal assurance and certainty in order that any party coming forward when significant matters involving risk to the public arise will be afforded the necessary legal protection to enable him or her to blow the whistle with confidence. The Government wants to achieve an environment in which legally based operational structures are available to organisations and institutions which facilitate the communication of perceived risk to authority when possible wrongdoing has taken place, is taking place or might take place in the future. If we can achieve the communication of risk through the provision of legally protected disclosure, a major step forward will have been made. The adoption of appropriate processes and procedures to allow for the early evaluation of possible wrongdoing and amelioration, where necessary, can only be good for our internal governance and international standing and reputation.
The disclosure to which the forthcoming legislation will apply must be informed by international best practice and step beyond the bounds of narrow sectoral perspectives. I agree with those Senators who mentioned the Universal Declaration of Human Rights and the Council of Europe resolution as being particularly cogent in this context. The scope of best practice provisions in this area typically covers situations where a criminal offence has been, is being or is likely to be committed; a person has failed, is failing or is likely to fail to comply with any legal obligation to which he or she is subject; a miscarriage of justice has occurred, is occurring or is likely to occur; the health and safety of an individual or group of individuals has been, is being or is likely to be endangered; the environment has been, is being or is likely to be damaged; or information tending to show that any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed. The Government will aim to ensure to the maximum extent possible that such provisions are included in the legislation that I will bring to this House.
A key longer term objective, in the context of implementation of the overarching legislation, is to secure the necessary change in the culture and behaviour of public and private sector organisations. Such a change is needed to ensure serious wrongdoing is identified and brought to light early and the necessary remedial action can be taken quickly. If the legislation is to be successful, its implementation must be accompanied by a positive evolution of our cultural attitudes towards whistleblowing, which must be freed from the previous negative associations alluded to by Senators. It is a civic duty to blow the whistle on wrongdoing or criminal activity, or activity damaging to the rights of citizens. It should not be frowned upon or castigated. The Government’s approach will be founded on realism and pragmatism. I propose to ensure protected disclosures will be made in accordance with internal procedures adopted by each organisation. A right to disclose to the head of an organisation will be provided for in certain circumstances. In exceptional cases, external disclosure to members of the Houses of the Oireachtas or other external designated authorities will be provided for.
The Government has announced that it intends to hold a number of referendums, I hope in tandem with the presidential election. One of the referendums will relate to the pay of judges, as we have discussed. Two other referendums will attempt to ensure the Oireachtas can examine wrongdoing. We will try to loosen the Abbeylara judgment which has tied the hands of committees of inquiry. In addition, we will try to lessen what has been described as the Howlin judgment. I refer to the Supreme Court decision requiring the disclosure of the confidential making of allegations to a Member of the Houses. It is an important part of the constitutional role of elected Members of this and the other House to hear from citizens, in good faith, about wrongdoing on the part of any agent of the State.
Deputy Brendan Howlin: They should not have themselves on the hazard for so doing. It is proposed that we will seek to redress the decision in question by holding a referendum in tandem with the referendum on the Abbeylara judgment.
I wish to speak about the processes for the development and preparation of the overarching legislation. Full regard will be had for all relevant human resources, organisational and governance issues; all relevant issues relating to human rights, employment rights and all legal rights; the lessons to date from the operation of the sectoral provisions in force in Ireland; and international experience and best-in-class models of universal legal charters for good faith reporting and protected disclosures. This will necessitate close collaboration and liaison with a broad range of stakeholders and interested parties including relevant Departments and with the Office of the Attorney General. I have already begun that dialogue. I look forward to the guidance, advice and proposals from Members of both Houses of the Oireachtas and their relevant committees in the course of the enactment process for the legislation given the evident expertise that exists in these matters that has become so clear in the fine contributions made in this debate so far.
As I pointed out in my address to Transparency International on 26 May, we are now in the quite anomalous situation that part of the island of Ireland is fully covered by universal legal whistleblower protection. As the House may be aware, the protection available to all UK employees under the UK Act were given legal effect in Northern Ireland by the Public Interest Disclosure (Northern Ireland) Order 1998 and came into operation on 31 October 1999. The order offers a framework of protection against victimisation or dismissal for workers who blow the whistle on criminal behaviour or wrongdoing, as defined in that UK legislation. All employees and other whistleblowers protected under the Act are given equal protection. If it is the case that it has been possible to provide and implement such a framework in Northern Ireland, I am fully confident we can find solutions to the issues that have delayed the introduction of the same protection here in the Republic.
I commend the adoption of the Government’s amendment. I thank Members of all sides for their insightful contributions, and look forward at an early date to being back to discuss the detail of the legislation. I assure the House that I will provide the space and time to address all Senators’ concerns and issues at that time.
It is curious that I find myself in the situation of a whistleblower in this House — I am glad that the House affords protection to me — on credible and trustworthy information that I got from a believable source that developers were buying back their properties from NAMA through third parties at less than the current market value. I met NAMA and gave the remedy to this, which is that all properties, which are essentially State assets, should be put on a website. However, NAMA, along with the media, has missed the point. They kept looking for the source and they wanted evidence. The media asking me to give up my source is ironic given that they rely on sources for their own information.
If public representatives such as, in his case, the Minister, Deputy Howlin, are given information by concerned citizens acting in the public interest and if we do not bring that to the attention of the House, of the public and of the relevant Ministers with solutions as to what can be done to prevent the ongoing loss to the taxpayer, then we are not doing our jobs. I welcome the fact that the Government is bringing in whistleblower legislation and Senator Mullen’s motion to the House.
It is long overdue. Given what happened, it is ironic that in 2004 the Irish Bank Officials Association proposed whistleblower legislation and I am saddened to report that the reply it got back was that we needed comprehensive legislation. Although there was sectoral legislation but not enough in the financial world, there were those who acted. In the case of a particular bank, one individual who was a whistleblower suffered considerably as a consequence and lost his job in the bank for blowing the whistle on what was going on and has led partly to where the country is.
I put a question to the Minister which did not seem to be covered in his contribution. It is to do with the bank officials of whom I spoke and to do with the church and other organisations. While we would protect whistleblowers, what would be the position with those who knew there was wrongdoing going on and yet stood silent and did nothing? Should there be an element of punishment for those who, if in the same position as the Minister, chose not to act who were in dereliction of their duty? There are many cases like that in finance. It is very difficult to prove. People should realise that those who have not the heart and the civic mindedness to act in the public interest should be encouraged to do so in their own interests and that in the event that they have been given credible information and refuse to act because they are afraid of the consequences for themselves, there should be consequences for them.
I welcome Senator Mullen’s motion and hope to see the Minister return to the House to tease out how the matter will be finalised. I encourage the Minister in protecting whistleblowers to provide for financial protection. In many cases, for example, where one was a priest in a church afraid to come forward because the vengeance that would come down upon him from on high might ensure that he would be sent to a parish that he found undesirable or a country to which he did not want to go, would there be protection for a whistleblower? Where somebody in any organisation stated that he or she blew a whistle and as a result has not maintained his or her job and position, and has been downgraded, castigated and set aside by the organisation, there must be an appeals mechanism so that where somebody must come out in public and tell what he or she knows, there are not consequences, not only financial but also for the position in which in some cases he or she would wish to continue. There should be a Government mechanism of an appeal system to which somebody can turn to state that he or shehas lost out as a result of whistleblowing and wants the Government to instruct theorganisation for whom he or she worked to reinstate him or her and to prevent him or her being blacklisted.
I look forward to the legislation coming into the House. I ask the Minister to consider not only whistleblower protection, but the consequences for those who knew what was going on and refused to act.
Senator Rónán Mullen: I thank all of those who contributed to the debate on this evening’s Private Members’ motion, my colleagues Senators Quinn, Crown and Norris, and also Senators O’Keeffe, Sheahan, O’Donovan, van Turnout, Gilroy, Colm Burke, Ó Domhnaill, Conway, Ó Clochartaigh and Reilly. I also thank the Ministers who were here this evening, the Minister of States, Deputies Jan O’Sullivan, Ring, Sherlock and O’Dowd. I was beginning to wonder whether there was a new condition known as ministerial attention deficit disorder, as one after the other came and left, but I was delighted to see the Minister, Deputy Howlin, arrive at the end of it all. Nobody could fault him for not being present for the entire debate given the time he has spent with us today. He is the Minister with the most knowledge and expertise in this area and I note that it is his particular brief.
I will not say much on the various contributions other than to thank speakers for the range of important and well-informed contributions. On a couple of the concerns, Senator Gilroy called for a group such as Public Concern at Work in Britain. It is important to note, as the Minister did, the work of Transparency International and, in particular, the Speak Up helpline which offers the kind of forum necessary for those with issues in this area who need to make a disclosure and who face dilemmas of various kinds. Support is available and it is important to put that on the record.
It is important to note that in the British legislation there is provision to facilitate responsible reporting. There is protection for those who make a genuine effort to report internally before going outside and requiring a higher level of confidence and evidence on the part of the whistleblower. These are important points. It is important to encourage people to go internally before going externally. Although I agree with the Minister that we should guarantee a confidential channel for those who would wish to approach a Member, in general terms I do not envisage a Member as the ideal person to come to with disclosures. I am keen to see the establishment of certain external persons who would be in a position to take protected disclosures from people. There is always the fear with politicians, present company excepted naturally, of the potential for grandstanding. Although I am keen to protect the confidentiality and privileges of Members, it is important to establish other recipients for what may be protected disclosures.
I advert to the comments of my colleagues from Sinn Féin, in particular those of Senator Ó Clochartaigh, on the term “whistleblower”. This may be a matter for An Coiste Téarmaíochta because the primary problem exists in an teanga Gaeilge with the word “sceithire”. I will resist the temptation to suggest that particular parties might be more sensitive than others on this issue. It appears I did not resist that temptation. The word “whistleblower” should not be lost because this is about creating a culture and rebuilding a sense of what an active patriotic duty it is to be a whistleblower where that is the appropriate thing to do.
I am disappointed that we could not agree on a motion this evening. I do not disagree with anything in the Government’s amendment but what it fails to state leaves me somewhat cold. The recitals in my motion are important and it is important to set the context for what we desire. With a little more consultation we could have come to an agreed motion on this matter, incorporating the recitals and taking account of the Government’s declaration of intent. This declaration has crystalised somewhat since the programme for Government was produced. There was a vagueness in the programme for Government that is not in what the Minister has stated to Transparency International and what he has stated this evening.
Senator Rónán Mullen: Indeed. We could have arrived at an agreed wording. It is important that the motion is put to a vote this evening because of what is in the various recitals and for this reason I will oppose the Government’s proposed amendment.
Gabhaim buíochas ó chroí le gach duine a chuir leis an rún tábhachtach seo. Is ceist an-tábhachtach í a bhaineann le cultúr ár sochaí agus leis an gcaoi ina cabhraíonn muid nó nach gcabhraíonn muid le daoine a bhfuil eolas tábhachtach acu, a bhfuil géarghá leis an eolas sin a chur faoi bhráid an údaráis cuí le gur féidir cosc a chur ar rud mídleathach nó mícheart ar mhaithe le leas an phobail.
|Bacik, Ivana.||Bradford, Paul.|
|Burke, Colm.||Clune, Deirdre.|
|Coghlan, Paul.||Conway, Martin.|
|Cummins, Maurice.||D’Arcy, Michael.|
|Gilroy, John.||Harte, Jimmy.|
|Hayden, Aideen.||Healy Eames, Fidelma.|
|Heffernan, James.||Keane, Cáit.|
|Kelly, John.||Landy, Denis.|
|Moloney, Marie.||Mullins, Michael.|
|O’Brien, Mary Ann.||O’Donnell, Marie-Louise.|
|O’Keeffe, Susan.||O’Neill, Pat.|
|Sheahan, Tom.||van Turnhout, Jillian.|
|Barrett, Sean D.||Byrne, Thomas.|
|Crown, John.||Cullinane, David.|
|Daly, Mark.||Leyden, Terry.|
|MacSharry, Marc.||Mooney, Paschal.|
|Mullen, Rónán.||Norris, David.|
|O’Brien, Darragh.||O’Donovan, Denis.|
|O’Sullivan, Ned.||Ó Clochartaigh, Trevor.|
|Ó Domhnaill, Brian.||Ó Murchú, Labhrás.|
|Power, Averil.||Quinn, Feargal.|
|Reilly, Kathryn.||Walsh, Jim.|
|Bacik, Ivana.||Bradford, Paul.|
|Brennan, Terry.||Burke, Colm.|
|Clune, Deirdre.||Coghlan, Paul.|
|Conway, Martin.||Crown, John.|
|Cummins, Maurice.||D’Arcy, Michael.|
|Gilroy, John.||Harte, Jimmy.|
|Hayden, Aideen.||Healy Eames, Fidelma.|
|Heffernan, James.||Keane, Cáit.|
|Kelly, John.||Landy, Denis.|
|Moloney, Marie.||Mullins, Michael.|
|Norris, David.||O’Brien, Mary Ann.|
|O’Donnell, Marie-Louise.||O’Keeffe, Susan.|
|O’Neill, Pat.||Sheahan, Tom.|
|van Turnhout, Jillian.|
|Barrett, Sean D.||Byrne, Thomas.|
|Cullinane, David.||Daly, Mark.|
|Leyden, Terry.||MacSharry, Marc.|
|Mooney, Paschal.||Mullen, Rónán.|
|Ó Clochartaigh, Trevor.||Ó Domhnaill, Brian.|
|Ó Murchú, Labhrás.||O’Brien, Darragh.|
|O’Donovan, Denis.||O’Sullivan, Ned.|
|Power, Averil.||Quinn, Feargal.|
|Reilly, Kathryn.||Walsh, Jim.|
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