Michael Clifford: Culture of keeping the bad stuff under wraps

Government departments appear to regard protected disclosures with as much enthusiasm as might ordinarily be reserved for a trip to the dentist, says Michael Clifford

How seriously do some government departments take the law? In particular, how seriously do they take the law enacted to ensure that wrongdoing is called out, and whistleblowers protected?

On Sunday, RTÉ reported how the Department of Justice labelled a request from the garda ombudsman, Gsoc, for extra investigators to be “excessive”.

The investigators were specifically required to staff a Protected Disclosure Unit in Gsoc. This was to accommodate a growing number of disclosures from An Garda Síochána that Gsoc was handling.

A change in the law in 2015 allowed Gsoc to investigate complaints from serving members of An Garda Síochána. (Prior to that the ombudsman could only deal with complaints from the public). Despite the treatment of Sergeant Maurice McCabe, a number of members have come forward with disclosures since the change in the law.

The reluctance to acknowledge the bona fides of whistleblowers appears to be shared with across a number of government departments and state bodies.

In January 2017, when Gsoc requested the extra staff, it was dealing with 10 disclosures. That number has since doubled.

RTÉ’s John Burke reported that when Gsoc applied for the extra staff the department considered the request for 12 investigators “excessive” in correspondence with the Department of Public Expenditure.

Some months later, Public Expenditure gave the nod to Justice for the recruitment of five investigators “as requested”. This inferred that Justice had determined — without any consultation with Gsoc — that only five rather than the 12 investigators should be appointed. A department playing down the amount of resources required for its bailiwick is unusual enough, but doing so for a body with an oversight function may betray the department’s attitude to such bodies.

The worrying feature of the Gsoc story is that it echoes with other cases in which the Department of Justice

appears to regard protected disclosures with as much enthusiasm as might ordinarily be reserved for a trip to the dentist.

The recent case involving protected disclosures from An Garda Síochána about the misclassification of homicides provides an example. That disclosure was made to the Oireachtas justice committee from two civilian members of the force. Yet, it was reported at the time that the department does not believe that the disclosure “meets the legal definition of a protected disclosure”.

That position would infer that the department was not taking the disclosure seriously enough to merit a full investigation. Why? Surely the prima facie evidence that the two whistleblowers presented would be enough to raise alarm bells. Could it be that the department continues to operate to a culture that prefers to keep the bad stuff under wraps?

A similar attitude appears to pertain to another sector under the department’s remit, the prisons.

On September 20 last the department received a protected disclosure about an allegation of sexual harassment in the prison service, a financial settlement of public money, a failure to properly investigate the incident and the re-employment of the retired alleged perpetrator.

The disclosure was anonymous, but a few basic inquiries could have established that the disclosure required

investigation. It was also an urgent matter as the individual at the centre of it continues to be employed.

Nothing was done. The Irish Examiner reported on the disclosure on November 17. Further coverage followed in December and January, and it was only then that a firm of solicitors — McCann Fitzgerald — was appointed to investigate the matter.

Department of Justice

Another disclosure from the prison service in March 2016 concerned allegations of bullying, intimidation and the failure to interview the discloser following an assault by a prisoner.

The department refused to accept that the allegation constituted a protected disclosure. The discloser appealed that decision and retired judge William Early was appointed to investigate.

He ruled that the allegation was a protected disclosure and that the discloser was “treated unfairly and isolated for making the disclosures and that his opportunities for career advancement were deliberately curtained by the IPS (Irish Prison Service)”.

This reluctance to acknowledge the bona fides of whistleblowers appears to be shared with other government

departments. Last week Joe Leogue reported in this newspaper about how a protected disclosure about the overexposure of chemicals in the Air Corps was not addressed for a full 12 months. Only then, following a report in this newspaper and a subsequent inquiry in the Dáil, did officials from the Department of Defence begin addressing the matter.

Then they found out that crucial documents had disappeared in the intervening period.

All of these cases were serious issues. None involved protected disclosures which were vexatious. Each allegation was backed up with evidence.

As in all such cases, an investigation may have uncovered shortcomings in the allegations and may have concluded that ultimately there was nothing untoward or anything that required correction.

That, however, is not the issue. The issue is the failure to investigate the matters with even the smallest degree of urgency. It is as if the first instinct in the Department of Justice — and it appears its sister in Defence — is to find a way to avoid any investigation, anything that might result in upheaval, controversy or scandal.

This is precisely the attitude that pervaded in state and non-state institutions down through the decades and inevitably always ended up with worse transgressions.

The Protected Disclosure Act was a leap forward for accountability. It purported to encourage whistleblowers to come forward without fear of reprisal.

It was also an acknowledgement that complaints from within organisations exercise a positive influence in raising standards and eliminating malpractice.

Yet the evidence that has emerged from government departments is that protected disclosers and their tidings will not be greeted — to use a phrase once beloved of Nóirín O’Sullivan — as critical friends.

If this is the lead being given by elements of the State, it certainly won’t take long for the private sector to cotton on to the reality that there are ways and means in which to undermine the law, and one need only look to the State to observe how best that is done.

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