11 years after Labour Bill on Whistleblower Protection, we still wait

One of the most frustrating things about debates on transparency and the need for new legislation and measures to deal with whistleblowing and related matters is the extent to which people give the impression that there has only been a recent discovery or realisation of the necessity for such measures. Senator Dan Boyle hopes there will not be another general election before something is done about this, but there have already been two general elections and we are well into the third Oireachtas since this issue was raised for public debate in 1999 by Deputy Pat Rabbitte who published a Bill that year to deal with this issue.

It is fully 11 years since this matter was first raised for public debate. It is simply not good enough for anyone, be they a Minister, supporter of the Government or otherwise, to imply that these matters are now coming forward for public consideration and concern and must be addressed in the light of what has happened recently. We knew about these issues many years ago. There is little use in people saying that now we have seen the dreadful things that have occurred which we never thought would happen – the subtext being that they never thought there would be a problem – but on which we have been proven wrong, we must do something about it. It is simply not good enough to give the people that excuse.

The Minister of State referred to the conclusion of the Company Law Review Group. Bluntly, the company law review group is wrong. When we are considering its report and when we are pointing out, as the Minister of State did, the fact that this group of eminent individuals came to this conclusion, we should bluntly state that the conclusion was wrong. Had these matters been considered in the depth and with the realism with which they should have been considered, the group would have come to a different conclusion. Mr. Paul Appleby and Mr. Michael Halpenny, the representative of the ICTU, were the two lone members of the group who maintained the view that it was necessary to bring forward a report that proposed robust whistleblower protection and legislation. When considering the balance sheet of what has occurred, I believe the best way for the Minister of State to view that group’s report is to conclude that it was wrong. We must do something different from what it recommended.

The Minister of State’s speech was interesting and helpful in one sense in that it constituted a detailed survey of the current position and the necessity for legislation in different areas. Where it is deeply disappointing is that it is another example of what we see so often in public life in these Houses, especially from the Government, where there is one good reason for doing something and ten reasons for not doing it. That is what we were treated to today. Incidentally, we were told 11 years ago by the Government, shortly after Deputy Rabbitte introduced his Bill, that there were significant legal and constitutional difficulties in this area. What are they? Eleven years have passed; therefore, the Government should give us a glimpse of what they are. I am not sure I agree with colleagues who suggest this could be done with a click of one’s fingers. I do not suggest it can be done in 24 or 48 hours, but it certainly does not require 11 years. It should not even take 11 months. It might take 11 weeks.

Rather than speaking about White Papers or reports that will be prepared shortly, as the Minister for Justice and Law Reform recently did, I would like the Minister of State to give a convincing and clear indication of a specific timeline for the introduction of the proposed legislation, whether it is sectoral or over-arching. The Director of Public Prosecutions has called for legislation to protect whistleblowers. It is not often that a public official such as the Director of Public Prosecutions intervenes in an area such as this.

The Minister of State, rightly, welcomed much of what is in the report by Transparency International. It is an extremely helpful report. We must face up to a central political point. Lying behind the Company Law Review Group report was the fear of upsetting the principle of light regulation. The report alludes to the concern that we would undermine our competitiveness or damage our image as a country that has light regulation where business happens quickly with little interference or oversight. That is not a reputation we should want to have or promote internationally. Our credibility and competitiveness rest on the necessity to have clear, robust and reliable whistleblower legislation.

Deputy Pat Rabbitte introduced his Bill in 1999 and was told the Government would introduce similar legislation, although it did not do so. He has again introduced legislation. It is available for the Government to take up and improve, if it wishes. The Bill is on the Order Paper. Let the Government bring forward legislation and toughen up the pious words of the Minister of State and the Minister, Deputy Dermot Ahern, in his recent speech to the Law Society of Ireland.

When will the Minister bring forward these proposals? It is not good enough to say it will happen in the autumn, although I know that anti-corruption legislation is planned.

We have heard an impressive survey of the problems and obstacles associated with whistleblower legislation. The obstacles are not specified. The legal problems foreseen by the Minister should be explained to us in more detail. It is not sufficient for a Minister to tell the Seanad that legal and constitutional obstacles exist. We are all grown up. We could look at those obstacles and see if we have views about them. The Government should tell us what they are and let us be party to the debate as to how they can be overcome.

I was interested to hear what Senator Liam Twomey had to say about his professional experience as a medical person. I have worked in the legal profession. People who work in financial institutions have a real concern that their employment will be threatened if they come forward and publicise information or otherwise make it available to the authorities. Instances of this have been outlined to the House today. Mr. Eugene McErlean is a clear example and there are many others. There may be many examples of which we will never hear. The absence of protection for whistleblowers has such a chilling effect on people that we may never know or appreciate the extent, quality and importance of the information people have and which, through fear for their livelihood and professional lives, they have not revealed.

This issue reduces itself to a political question. Are we willing to cut through the argument that it is a good thing for Ireland to have a light regulatory regime that stands back from business, the banks and financial institutions, for fear of appearing to be over-regulated? We need more regulation and not less. We need quality and discerning regulation and not simply regulation for its own sake. That would, absolutely, include protection for whistleblowers.