OPINION:Dermot Ahern's commitment to protect whistleblowers will not safeguard a single employee in our banks and few in our public service
THE MINISTER for Justice sounded like Eliot Ness last Friday night. Speaking at the annual dinner of the Law Society, he committed the Government to a crackdown on white-collar crime.
Much of what he said was encouraging. A clearer, consolidated corruption Bill will be drafted and a White Paper on economic crime put to public consultation. However, it was his statement that the Prevention of Corruption (Amendment) Act “will provide protection to any person, in any sector, reporting suspicions of corruption in good faith” that grabbed the headlines. It sounded impressive. Indeed, colleagues rang to congratulate us on a successful campaign to protect whistleblowers that Transparency International Ireland had launched just four months ago.
It was too good to be true. The Minister, in reaction to the Director of Public Prosecutions’ call for comprehensive whistleblower legislation, had dusted off the three-year-old Prevention of Corruption (Amendment) Bill, and presented it as a whistleblowers’ charter. The Bill, which the Government committed itself to seven years ago when it signed the UN Convention against Corruption, will indeed provide some limited safeguards to people – but only when reporting the very narrowly defined offence of bribery.
The legislation will not protect a single employee in our banks reporting dodgy loans to directors. It will not protect anyone reporting insider dealing or any other of the multitude of offences under the Companies Acts. It will not protect any public servant reporting the cover up or misuse of power by other officials or ministers.
In fact, the Government’s sector-by-sector approach to whistleblower protection will not protect many whistleblowers at all. The DPP’s call for meaningful legislation is likely to remain unanswered.
In 2006, the government abandoned its commitment to establish a universal charter for whistleblowers. Instead it pledged to introduce safeguards sector by sector in individual pieces of legislation “where appropriate”. Since then we have seen the introduction of measures of varying quality in more than 15 laws. They include mixed assurances for people reporting suspicions of child abuse or neglect; breaches of competition law; matters relating to workplace health and safety; and for gardaí reporting corruption in the force.
The devil is in the detail of course and within the patchwork of confusing statutes there are some chilling provisions. After decades of abuse and maladministration in the health service, nurses and doctors are now allowed to speak up. However, even if a nurse innocently and honestly makes a report that turns out to be unfounded he or she could end up facing three years in prison because they “ought to have known” their report was untrue.
The legislation controlling what gardaí can and cannot report is even more draconian. The garda who allegedly released information to the press on Trevor Sargent’s attempt to influence an investigation faces up to seven years in jail, if charged and convicted.
Just as worrying for prospective whistleblowers is the false sense of comfort and confusion created by the Government’s “sectoral” approach. Despite a provision in the legislation governing Fás, employees there will probably not be protected if they report future waste or lavish expense claims at the State agency. Likewise, employees of Nama are only permitted to report criminal behaviour – other forms of wrongdoing and negligence are out of bounds. We know about the role secrecy played in bringing the country to the brink of bankruptcy. So why does the Government still think it inappropriate to introduce a universal whistleblowers’ charter that works for everyone?
It seems to have been swayed by three equally dubious arguments. The first, made by the Company Law Review Group and Ibec in 2007, was that whistleblower protection would damage “Ireland’s reputation as a lightly regulated economy”. The second, again made by the group, was that there was no “evidence of endemic failure in relation to corporate governance” in Ireland. It is not clear what evidence they used to support their claim in 2007. Nor do we know where Ibec and its partner organisations on the CLRG stand on the issue now, but it would be interesting to find out. The third and perhaps most intriguing reason put forward has been that a universal whistleblowers’ charter would be too complex. When Tony Killeen, then minister for labour affairs, made this point he simply referred to the Official Secrets Acts and advice from the Attorney General. Little detail was provided other than to say that it would be impossible, for example, to offer employees of the Central Bank protection.
Given that the Central Bank governor recently called for the introduction of a statutory regime for whistleblowers, what further legal complexities does the Government envisage in introducing a universal whistleblowers’ charter?
Opponents of a universal charter might find it helpful to look at international best practice in promoting whistleblowing. They will not have to look too far. The UK’s Public Interest Disclosure Act is widely regarded as the benchmark in whistleblower protection worldwide.
It was introduced in 1998 and allows employees in both the public and private sectors to report a concern to their employer, regulators, and in limited circumstances to the press. As with the rest of the UK, the universal charter has worked without legal mishap for 10 years in Northern Ireland. That being the case, why can’t the same rights to apply people across the island?
Whatever approach they adopt, it is dangerous and dishonest for the Government to pretend our citizens are protected if they speak up when they are not. It would be better for everyone if the Minister for Justice admitted as much and then explained why.
John Devitt is chief executive of Transparency International Ireland – transparency.ie