Submission of The Council of The Bar of Ireland – Protected Disclosures (Amendment) Bill 2021

The Council of the Bar of Ireland has prepared a submission for the Joint Committee on Finance, Public Expenditure and Reform and Taoiseach on the General Scheme of the Protected Disclosures (Amendment) Bill 2021.

The Council made 10 submissions that arise from consideration of the Protected Disclosure (Amendment) Bill General Scheme and its interaction with existing legislation; namely, the Protected Disclosures Act 2014.

1. The Council is of the view that the Bill could be improved by a more comprehensive and inclusive definition for the persons entitled to whistleblowing protection. Therefore, the Council recommends that the term ‘worker’ be replaced by ‘reporting/disclosing person’ and to enumerate the term a ‘reporting/disclosing person’ (as is the Model of the Protected Disclosures Act and the Bill at present) with the various categories of persons that ought to be caught by the protections.
2. The Council recommends the insertion of a subsection excluding the application of the Protected Disclosures Act and the Bill to lawyers as per Recital 27 of the Directive
3. The Council approves of the proposed manner of legislating for the material scope of the Directive as per Head 5 of the Bill and the definition of ‘breach’ at Head 2 of the Bill.
4. The Council also approves of the exclusionary provision concerning interpersonal grievances but advises that the term ‘interpersonal grievance’ be defined in the Bill to ensure that this exclusion is interpreted narrowly by adjudicative bodies and/or the courts
5. The Council recommends amendments to the definition of ‘relevant information’ to include actual or potential relevant wrongdoings and reasonably held suspicions on relevant wrongdoings.
6. The Council is supportive of Head 21 of the Bill but cautions on the increased workload for the Circuit Court arising out of the extension of the applicability of interim relief to an employee as defined in the Protected Disclosures Act and the Bill claiming to suffer from penalisation wholly or mainly for having made a protected disclosure.
7. The Council advises for the repeal of section 13(2) of the Protected Disclosures Act which creates a mandatory exclusion on persons bringing a claim to the Workplace Relations Commission for redress for having been dismissed or for redress or for having been penalised at work and a tort claim in the courts based on detriment suffered by them arising out their making of a protected disclosure.
8. The Council approves of the Bill’s general approach in Head 9 and 10 but is concerned about the ambiguity within the proposed sections 6(11) and 7(5) which would benefit from greater clarity as the Bill progresses onwards.
9. The Council supports the creation of the Protected Disclosures Office
10. The Council recommends for the provision of legal aid to certain persons making or contemplating making a protected disclosure given the complexity and sensitivity of this area. Further, the Council views the provision of legal aid and psychological support as consistent with the ethos of the Directive which seeks to empower would be reporting persons into making a fully informed decision as to whether they will make a report/protected disclosure and for them to be supported thereafter.

Read the submission in full here.