Michael Clifford: Whistleblowers justified in fearing reprisal for speaking out

A unique investigation is taking place into allegations that officials failed to protect a whistleblower from penalisation
Michael Clifford: Whistleblowers justified in fearing reprisal for speaking out

Now retired prison officer Noel McGree has experience in the operation of the Protected Disclosures Act that will inevitably be used a case study. File picture: Moya Nolan

The whistleblower is still getting it in the neck. Transparency International Ireland, on Wednesday, published its latest Speak Up report on the experiences of whistleblowers. It found that between 2018 and 2020 a quarter of those who spoke up about wrongdoing suffered some form of retaliation. The problem was at its worst in the health sector where 40% of whistleblowers were subjected to some form of retribution.

This sort of stuff was supposed to be outlawed in the 2014 Protected Disclosures Act. The law came into effect around the time the Maurice McCabe case was a major public issue. One element of the McCabe case that captured the public imagination was the extent of the retaliation carried out against him within An Garda Síochána for pointing out wrongdoing.

All that, we were assured, couldn’t happen under the new law. Well, it could and it does. As with other areas of life, much effort has gone into subverting the law. TI Ireland’s data illustrates that retaliation for speaking out continues to occur at an alarming rate. The ultimate outcome is that fewer people will be minded to speak out.

John McGuinness, the Fianna Fail TD who has dealt with a number of whistleblowers, says that those he has encountered who have made disclosures all say they would never do it again and wouldn’t encourage others to either.

“In the public sector particularly, they (management) have sussed out the problems that arise with PDs and how to deal with them,” he says.

Wagons are circled at an earlier stage and the person making the PD is vilified and often bullied and harassed. 

That’s the background against which a unique investigation is taking place into allegations that politicians and senior public officials failed to protect a whistleblower from reprisal or penalisation.

Now retired prison officer Noel McGree has experience in the operation of the Protected Disclosures Act that will inevitably be used a case study.

He first raised concerns about malpractice in the catering sector of the prison service in 2016. Initially, his report was not accepted as a protected disclosure. A subsequent external examination by retired judge William Early found that it did qualify as a disclosure and that McGree had suffered penalisation for making the disclosure.

One form this took was a failure to inform him of a security threat. Another was that he witnessed an assault on a fellow officer but was not interviewed about the incident.

“It is quite extraordinary that a primary witness to a serious assault was not interviewed,” Judge Early ruled. Following the judge’s report, McGree received an apology from the then director general of the service, Michael Donnellan.

The emphatic ruling by the judge gave rise to questions as to how seriously disclosures are taken in some areas of the State apparatus.

In 2018, McGree was awarded €30,000 by the Workplace Relations Commission for the penalisation in the first ruling of its kind under the Protected Disclosures Act.

Last year, following an Oireachtas Public Accounts Committee meeting at which a number of queries were made about fraud in the prison service, McGree contacted the minister for justice. He told Charlie Flanagan that he had evidence of fraud in the sector. Flanagan acted appropriately in following this up, referring it for assessment, out of which a report was compiled which was then handed over to An Garda Síochána.

However, McGree also claimed that he was in danger of further penalisation as a result of his earlier disclosure. He has complained that Flanagan failed to have an external agent investigate his complaints around penalisation. To be fair to the former minister, there is a documentary trail showing that he kept in touch with McGree and expressed concern for his plight. But the issue for McGree is that Flanagan referred his, McGree’s, complaint about penalisation back to the prison service rather than appointing an external person to conduct an independent investigation.

Subsequent to this, McGree wrote directly to the then taoiseach, Leo Varadkar, to amplify his concerns. He also complained that the minister had not dealt properly with him.

Varadkar referred the issue back to his minister, which certainly until now would have been standard practice in a matter like this. But is that enough when what is at issue is possible whistleblower reprisal?

A number of other individuals in the Department of Justice and the Irish Prison Service, including current director of the service Caron McCaffrey, are the subject of the same complaint over a failure to protect the whistleblower.

Disillusioned

McGree retired in January this year, completely disillusioned, he says, over his treatment in the service.

Significantly, his complaint has been assessed by an independent barrister and deemed valid for full investigation. This means that it has cleared the barrier of being regarded as spurious or vexatious.

If he is found to have a valid complaint, politicians, and others who can receive disclosures under the act, will be compelled to reassess how they deal with the issue. Currently, the general practice is to refer the matter on and receive assurance that it will be investigated. Some politicians do go further and stay in contact with a discloser and even follow up any allegations of reprisal. But that is not universal and generally is done on an ad hoc basis.

If McGree is found to have a valid case, then ensuring that a discloser is not subject to reprisal will become a duty carrying the possibility of sanction if not carried out.

The latest TI Ireland report has shown once again that the Protected Disclosures Act is not doing what it says on the tin. Whistleblowers remain in fear over the disclosures and there is ample evidence that they are justified in doing so. 

If the State is to take seriously the importance of people speaking up about wrongdoing, changes in practice, culture, and legislation still require a lot of attention.

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