CORRUPTION, CRIMINAL misconduct and cover-ups take a myriad of forms and, invariably, those in positions of power have most to lose through exposure. Their quietly pervasive influence may account for the failure by successive governments to introduce comprehensive whistleblower legislation that would encourage civic-minded citizens to reveal wrongdoing. At last, outline legislation has been published as part of the Government’s political reform agenda. It is a difficult area, but Minister for Public Expenditure and Reform Brendan Howlin has said he is willing to consider additional protections and amendments.
It has taken 13 years to get to this point. Overarching whistleblower legislation was initially tabled in 1999, but dropped in favour of a sectoral approach. The reasons given were legal and constitutional but the result was piecemeal and incoherent legislation with little statutory protection for whistleblowers in certain areas. This initiative, based on legislation in the United Kingdom and New Zealand, is designed to close most of those gaps.
In this country, there is a deep cultural undercurrent that generates ambivalence towards authority and the law. At its most vicious, an accusation of “felon setting” can be levelled against those who do their civic duty. A survey of Irish employers found that fewer than half promoted whistleblowing within their companies, compared to 90 per cent in Britain.
An educational shift is required. In that regard, the legislation will require employers to create a workplace culture that supports whistleblowers.
International experience has shown that, in most cases, the identity of the whistleblower becomes known and reprisals take place. Because of that, the concerned individual requires maximum protection. Under these proposals, that protection is too narrow. The person to whom the complaint is made has only to use “best endeavours” not to identify the individual concerned.
Disclosure can be made where it is deemed essential in investigating the allegation or in relation to natural justice. Natural justice and our adversarial system normally require that an accused is entitled to know the identity of the accuser.
What about the rights of the whistleblower? Perhaps a judge could have discretionary power in arbitrating between such disclosure and the common good. Where identification does takes place and retribution follows, generous redress should be guaranteed.
There are legitimate concerns that vexacious and unfounded allegations could cause serious damage to the reputations of companies and individuals. That is why severe penalties, including imprisonment, are envisaged in cases where false accusations are made.
In the greater scheme of things, however, the benefits of this legislation far outweigh its limitations. One in four cases of fraud and corruption is exposed by whistleblowers in Britain.
We have a lot of catching up to do.