The Irish Human Rights Commission (IHRC) recently published its Observations on the Scheme of the Protected Disclosures in the Public Interest Bill 2012. In its Observations, the IHRC welcomes the introduction of the legislation as an important step to encourage identification of malpractice, but raises concern that the legislation may inadvertently put off potential whistleblowers. The Observations were submitted to Mr Brendan Howlin TD, Minister for Public Expenditure and Reform.
Dr Maurice Manning, President of the IHRC said
"The IHRC welcomes the introduction of the present legislation to provide uniform legislative protection for 'whistleblowers'. The importance of providing this legal protection is to ensure that people in possession of information about illegality, malpractice or irregularities are able to come forward without risk of sanction is fundamental to ensuring good governance through promoting transparency and accountability. We welcome safeguards that will allow both public and private sector employees to disclose, in good faith, information about a suspected wrongdoing. This draft legislation is a positive step in the right direction."
Mr Des Hogan, IHRC Acting Chief Executive said
"We welcome the purpose of the legislation, but consider that the Bill should be reviewed to ensure that it does not unintentionally place an undue burden on the whistleblower. The focus of this Bill is on accountability and providing protection for bona fide, non self-serving disclosures that are in the public interest. The legislation should act to encourage whistleblowers to come forward. It should not be overly complex or burdensome. The seemingly different standards of belief required on the part of a whistleblower depending on whether he or she is reporting the information to their employer, a designated agency, a Minister or to the public (including the media) for example may not meet this policy aim."
Mr Hogan continued:
"Simplification of some sections of the legislation is needed so that the key criteria that would allow a whistleblower to disclose information outside of his employer, a relevant body or a Minister, are clearly set out. One section of the legislation that may have the effect of deterring potential whistleblowers is the weak protection of anonymity. It is important that potential whistleblowers feel that they will be protected by this legislation should they take the step of coming forward to report an issue. The legislation should say that the identity of the whistleblower may not be disclosed without the worker's consent and that anyone disclosing the identity of a whistleblower may be subject to sanction."
- Review the Scheme of the Bill to ensure that there isn't an undue burden on whistleblowers;
- Simplify parts of the legislation so that the key criteria that would allow a whistleblower to disclose information outside of his or her employer, a relevant body or a Minister, are clearly set out;
- Strengthen the confidentiality provisions so that the identity of the whistleblower may not be disclosed without the worker's consent and that anyone disclosing the identity of a whistleblower may be subject to sanction;
- Ensure that disclosures of undue influence by a public official, particularly in relation to the administration of justice and the proper functioning of State organs, are covered in the legislation;
- Include a definition for "public official" in the legislation that includes members of the Oireachtas and all Civil and Public Servants as well as members of Boards and other State appointees;
- Allow for an independent mechanism for reporting of all disclosures made to an employer or independent body to ensure structural problems are identified and no victimisation of the whistleblower takes place;
- Introduce clear accessible guidelines once the legislation is published and independently scrutinise the quality of whistleblowers policies in each public sector organisation.
As regards ensuring oversight of the whistleblowing system itself, Mr Hogan said
"An independent mechanism for reporting of all disclosures made to an employer or independent body should be considered, for example through expanding the remit of the Standards in Public Office Commission. This mechanism would allow follow up of selected individual cases in order to see firstly, whether structural problems identified in the whistleblowing complaint are being addressed by the organisation (where merited), and secondly, to ensure that the whistleblower is not victimised. The whistleblower should also be able to contact the independent body to give independent information or be directed to the appropriate body. Further, the designated independent body and other public bodies should be in a position to advise the individual on the protections available to whistleblowers."
Mr Hogan said
"It is important that when this legislation is published that it is widely disseminated to ensure that as many people as possible are aware of its provisions. We have recommended that following the enactment of any legislation, clear, accessible guidelines on the legislation are produced and publicised. The quality of the guidelines within each public sector organisation should be given independent scrutiny, for example, by a relevant body or independent organisation such as the IHRC. Public Sector organisations' guidelines should be required to ensure that there is a designated person within any Department or Service who is responsible for implementing and overseeing an internal policy that promotes transparency and accountability."