Transparency International Ireland (TI Ireland) has welcomed the publication of proposals for new legislation to improve protection for whistleblowers in both the public and private sectors.
The Protected Disclosure in the Public Interest Bill was published last week by the Minister for Public Expenditure and Reform, Mr Brendan Howlin, TD, who said the government had promised to “legislate to protect whistleblowers who speak out against wrongdoing or cover-ups” in either sector of the economy.
The spectrum of wrongdoing covered by the legislation is to include, among others, criminal misconduct, corruption, breach of legal obligations, health and safety risks, environmental damage, and mismanagement of public services.
Mr Howlin said the Bill will provide, for the first time in Ireland, “a single overarching framework protecting whistleblowers in a uniform manner in all sectors of the economy.” This would be a huge advancement from the previous piecemeal approach, he said, which was fragmented and confusing.
Mr John Devitt, Chief Executive of TI Ireland, welcomed the safeguards offered to employees disclosing information on misconduct to their employers, the authorities, TDs, or the press.
“This legislation could be as important as the original Freedom of Information Act in protecting the public interest,” said Mr Devitt. “There are some improvements to be made, but I think we’re on the right track.”
According to TI Ireland, the new legislation is influenced by existing whistleblower regulations in the UK and New Zealand, as well as international principles and research conducted by TI and other international organisations.
However, Mr Eugene McErlean, former head of group-wide auditing at Allied Irish Banks, sounded a note of caution on the government proposals.
Speaking on Morning Ireland on RTE Radio 1, Mr McErlean echoed Transparency International in their description of the legislation as a positive step in the right direction. However, he said the Bill should also be examined from a practical point of view. It is of critical importance, according to Mr McErlean, to guarantee anonymity to whistleblowers. He cited international research as proof that potential whistleblowers must have confidence that, should they report misdeeds, their identity will not be revealed.
Mr McErlean became one of the best-known whistleblowers in Ireland following his objections to the manner in which the Financial Regulator had handled reports of overcharging at AIB, which amounted to tens of millions of euro. The ramifications of his whistleblowing activity, however, have dragged on for almost a decade.
“In this piece of legislation,” said Mr McErlean, “the assurance is somewhat limited. It just says that the person who it’s reported to has to ‘make their best endeavours’ to keep their identity confidential. And really, that assurance isn’t probably good enough to make the person feel confident that…their identity will be protected.”
Instead of focussing on anonymity, however, the Bill describes as its main objectives “ensuring the protection of workers against…reprisals…in the workplace” and safeguarding workers who have made a protected disclosure “from being subject to occupational detriment”, and also providing immunity against civil liability and criminal liability in certain cases. Mr McErlean said that, in his case, had he been able to remain anonymous, his position would have been made “enormously easier”.
“The key is the protection of the identity,” said Mr McErlean. “Certainly the bit on the protection against reprisals is quite good, but we would like to stop it before it gets to that stage and, if you don’t know who it is, then you can’t (carry) reprisals out against them. So the key is to encourage reporting, and if the person feels that their identity is going to be protected, they’ll be more confident about reporting, whereas if they feel there’s a question mark over their identity becoming known, they may think twice about doing it.”
Indeed, the legislation proposes that disclosure of information should occur in a “stepped” manner (which some commentators have taken to mean notifying employers first, then a regulator etc.). It is likely that this reporting protocol could further discourage whistleblowers from reporting. Mr McErlean also drew attention to the issue of the over-complication of the reporting procedure. He explained that the position of whistleblower is a “fairly stressful situation to be in”, and that every whistleblower needs clarity and assurance about what they are required to do.
Using the example of someone in a care home, he said: “We would all like to think that our parents or our grandparents are being looked after, and we would like (that) someone who thought they weren’t being looked after would report that, and that person should be encouraged and praised for doing something like that.”