Michael Clifford says we were late to the party when it came to protecting workers who reveal information. But now the law is there it is stronger than in many countries
THERE was a time in the recent past when it was open season on whistleblowers. This was known only too well by the woman who relentlessly attempted to highlight the ‘Grace’ foster abuse scandal in the South East.
Speaking under the privilege of the Dáil on November 2, Fine Gael’s John Deasy said he had information that there were attempts to sack the whistleblower in that case in 2011. Deasy said that evidence against her was “fabricated” and the attempt died in the end.
The claims have not been tested, but are likely to feature in the inquiry that will now be conducted into the scandal.
Others who have blown the whistle on malpractice or criminality have lived with the fear of similar consequences. In 2013, this newspaper revealed the attempts to discipline garda whistleblower Maurice McCabe for the loss of a computer seized from a priest who was convicted of child abuse.
The O’Higgins Report detailed how Sergeant McCabe was entirely innocent and that it was understandable that he felt he was being targeted because of his revelations about garda malpractice.
“Whistleblower reprisal” as it is known is a common occurrence whenever somebody breaks ranks to highlight abuse or malpractice of one sort or another. It was with that in mind that this country finally brought in a law to protect whistleblowers. The Protected Disclosure Act 2014 is the first time that any such law was enacted in this country.
The law brought Ireland into line with many other western jurisdictions which have long recognised the requirement to protect those who blow the whistle.
As with much else in public life, this country was slow in getting off the mark. By the late 1990s, the political and business world had been hit by a series of scandals over the previous decade. From banking to the semi state sector, and in the late ’90s, revelations of corruption in the political system, it became obvious that the legislative framework to tackle these areas was woefully inadequate.
The importance of the whistleblower who feels compelled to point out wrongdoing was recognised. In the Dáil, Pat Rabbitte, then an opposition Labour party TD, tabled a private members’ bill entitled the Whistleblower’s Protection Bill.
He told the Dáil that legislation, if enacted, “would radically challenge the culture of secrecy that surrounds Irish business and public life” and that employees, who make disclosures in good faith, “will be protected by the law from civil liability and discrimination in their employment, up to and including dismissal”.
The government, through its junior minister Tom Kitt, indicated that it would not oppose the bill. Kitt did warn that caution would have to be applied to ensure any such law did not become a “crank’s charter”.
So everybody was agreed on the urgent need to protect whistleblowers highlighting wrongdoing. And then nothing happened. Despite its stated willingness to co-operate, the Fianna Fáil-led government kept finding reasons not to proceed with the legislation.
This went on for seven years until 2006 when the same government — re-elected four years previously — finally admitted it was not going ahead with it.
Then Enterprise Minster Micheál Martin said that, instead, the government would favour a “sectoral” approach to legislation for highlighting wrongdoing. He said there were “exceptional legal difficulties” with the bill. These difficulties were never revealed. The major difficulty was the political will was not present in the government to go ahead with it. When the time eventually came, the legal hurdles were cleared with ease.
Rabbitte, still toiling on the opposition benches, described the withdrawal of the bill as “shameful though not unexpected”. He suggested that the real reason the government “reversed engines and decided not to proceed with important legislation” was that it had come under pressure from multi- nationals, who had had a taste of having to comply with similar, or even stronger, legislation in the USA.
“If they can persuade the government to impose much poorer standards of corporate governance than they are used to elsewhere, they would be foolish not to throw their weight around,” Rabbitte said.
Whether or not the Labour TD’s allegation was accurate, the following year an example was provided of how Irish companies regarded the imposition of whistleblowing legislation.
The Company Law Reform Group was, at the time, charged with reforming company law to bring it up to date. Submissions from the trade union movement and the office of the director of Corporate Enforcement to the group pointed out the importance of, including in its review, proposals to include protection for whistleblowers. One reason forwarded for the requirement for legislation was that it would enhance corporate governance, particularly in the eyes of investors. The group, which was dominated by corporate interests, simply couldn’t see why any such legislation might be required.
“One cannot say that there is any evidence of endemic failure in relation to corporate governance, or its enforcement in Ireland, that negatively affects the investment climate and which requires enhanced “whistleblowing provisions”.
Within a year, the whole world could see that such a statement was a candidate for bad joke of the decade. Corporate governance, particularly in banking, was shown to be nothing short of appalling. One might well speculate that had proper whistleblowing legislation been in place during the years of bubble and bust, more individuals may have been emboldened to come forward and reveal what exactly had been going on.
While overarching legislation was sadly missing, the decision to leave such matters to sectoral interests provided some interesting results. There was provision and protection for whistleblowers in areas like social services and even the wider public service. The gardaí were covered through the Garda Síochána Act 2005, which was supported by regulations two years later.
This was as a direct result of the Morris Tribunal reports into garda malpractice in Donegal. Former judge Frederick Morris found that had some members of the force been confident enough to speak up about wrongdoing early on, much of the problems could have been avoided.
The result was a system of whistleblowing within the force in which a member could go to an outside agent, the “confidential recipient” who would then bring the concerns anonymously to the commisssioner’s office to be addressed.
In theory, the system looked good, but it didn’t work properly in practice. Coincidentally, the Protected Disclosure Act (PDA) was going through the Dáil when the controversy surrounding Maurice McCabe’s revelations were rocking the gardaí and the whole political system in 2014.
So how good is Irish legislation in protecting whistleblowers? One of the advantages of coming late to the table with legislation was that the Irish lawmakers could pick and choose the best aspects in law in other countries.
Thus the PDA here is regarded as being one of the strongest in western Europe. It has drawn from the better features of laws in the UK, New Zealand and South Africa, providing protection for workers across the public, private and voluntary sectors. (Interestingly, the term ‘whistleblower’ is not used in the legislation, with the emphasis being on the information rather than the individual divulging it).
The main point of the PDA is to provide protection against formal or informal sanctions against the whistleblower.
For instance, if there is an attempt to sack a whistlebower, he or she can fast-track reinstatement without having to wait for up to two years for a hearing in the Employment Appeals Tribunal or the High Court.
The whistleblower also has recourse to the Work Relations Commission if he or she believes that they have been sanctioned as a result of divulging wrongdoing.
A worker who makes a disclosure does not have to be an employee. For instance, most employees don’t enjoy protection from dismissal until they have worked for 12 months with a company. The worker who makes a disclosure is covered in that regard from day one of their employment.
Additional protection is provided under section 13 of the act for persons who suffer as a result of a protected disclosure, even though they themselves were not responsible for the disclosure. This could occur, for example, if the spouse, partner or close friend of a whistleblower working for the same or a related organisation is targeted because of the disclosure.
The act states that that the kind of “detriment” alleged in this regard includes “coercion, intimidation or harassment; discrimination, disadvantage or adverse treatment in relation to employment (or prospective employment); injury, damage or loss and threat of reprisal”.
According to John Devitt, chief executive of Transparency International Ireland, the act has many strengths that do not feature in corresponding legislation in other countries.
“It does provide some assurance or safety net for the first time for workers across the public and private who disclose wrongdoing,” he says.
This is not the case in many countries where whistleblowing legislation is confined to various sectors.
As of yet, it is probably too easy to say how successful the PDA is as it has not been tested in the courts because so few cases have been brought.
The nature of whistleblowing is such that instances that actually go as far as the courts are rare, and it could be many years before definitive conclusions can be drawn.
However, there are still weaknesses in the Irish legislation, according to Devitt.
“One of the issues we’ve highlighted in the past was the need to protect people who report wrongdoing that doesn’t necessarily amount to criminal offence or other catagories laid out in the legislation,” he says.
“A lot of employees are subjected to a code of conduct, they don’t have recourse to the law if they report a breach of professional code because professional or corporate codes of conduct don’t have the same standing in legislation.
“We have encountered cases where people sought to bring attention to a code of conduct or a conflict of interest, but might not be protected.”
One other feature of the legislation is that it does not cover volunteers in the same manner as it does people with employment contracts.
How other countries respond to disclosures of wrongdoing
The law in the UK dates from 1998 with the enactment of the Public Interest Disclosures Act.
While whistleblowers are often subjected to some form of reprisal, the USA has long recognised that in order to balance the risks of doing so, a reward system should be in place.
There are federal laws such as the Public Interest Disclosure Act 2013, but that only covers “public officials, Commonwealth contractors and their employees reporting a broad range of conduct”.
Major struggle to change the culture of whistleblowing
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