Cork TD Ken O’Flynn has told the Dáil that legal support needs to be offered to whistleblowers. The Independent Ireland TD said that unless there is reform, Ireland will be “a nation of cover up after cover up, learning nothing from all the cover ups.”
Deputy O’Flynn raised the issue Minister for Public Expenditure, Infrastructure, Public Service Reform and Digitalisation, Deputy Jack Chambers, describing the practical effects of the Protected Disclosures Act 2014 as a “matter of grave concern.”
“While the Act was conceived with noble intent in the shadow of the experience of the Maurice McCabe case and his testimony, the reality for many whistleblowers across this nation is that the promised protection remains legally at odds with the lived reality of the legislation,” Deputy O’Flynn said.
The TD claimed that recent findings of the commission of investigation into the Grace case underscored the point. He said that despite protected disclosures having been made, the system has “failed with harrowing consequences,” adding: “The individuals who spoke out were not met with support but with institutional silence and personal hardship.”
In April, the whistleblower in the ‘Grace’ case – the long-running investigation into the circumstances surrounding serious allegations of abuse against a severely intellectually disabled young woman, known as “Grace” – said that the response of the State acted as a “strong deterrent” to others speaking out. Ian Smith, who first raised the alarm about the case in a 2008 report, said that “the State will try to crush you.”
Mr Smith was speaking after the publication of the Farrelly commission of inquiry’s final report on Grace’s treatment. He told RTÉ that the case had taken a “big toll” on him and his family emotionally and financially.
“It’s still taking a toll because my family are looking at this report today and thinking what on earth was this all about?” Mr Smith said.
“I think anyone who’s thinking of coming forward in Ireland, and divulging tales of abuse that they have heard in their workplace, needs to know what the State can do to you. The State can crush you. The State will try to crush you,” he added.
The Protected Disclosures Act 2014 provides legal protection for those who report wrongdoing in the workplace. The law aims to safeguard “whistleblowers” from unfair treatment or dismissal for disclosing information about suspected illegal or unethical activities.
However, Cork TD O’Flynn said that the deficiency of the framework through the absence of legal aid for those who make protected disclosures and subsequently find themselves before the Workplace Relations Commission, the Labour Court or the Circuit Court, High Court or Supreme Court, is one of the “glaring problems” of the Act.
“These individuals are often pitted against a large organisation, such as the HSE and others, with ample legal reassurances and well-resourced legal teams. They are left to shoulder the financial and emotional costs along with this. Moreover, too many of those taking these cases have been bullied, blurred and pushed into a non-disclosure agreement that functions as a de facto gagging clause,” Deputy O’Flynn told the Minister.
‘A CHILLING MESSAGE’
“Not only does this rob the public of the truth, but it ensures the systemic reform that needs to take place does not take place. It is a chilling message to those who want to be whistleblowers but are afraid to come forward because of the financial implications and risk. I ask the Minister plainly whether the Government will commit to reviewing the Protected Disclosures Act, with a view to introducing statutory legal aid for those individuals who disclose and are deemed appropriate and protected under the 2014 Act?”
Responding, Minister Jack Chambers said he takes “with great seriousness” the issues the Deputy identified on the experience of individuals relating to the protected disclosures regime.
Minister Chambers responded: “As he knows, we have various legislation from 2014 up to 2022 reflecting the updated reforms introduced, some of which were introduced in the aftermath of some of the cases he has referenced, and reflecting best practice. Under the current regime a review is built in under the 2022 Act, which is due in 2027. We also have the Protected Disclosures Commissioner, who independently has a statutory function in the context of protected disclosures.
“Support from my Department is given to Transparency International Ireland; its Speak Up helpline is funded by the Department to support those who make a protected disclosure. Strong legislative and statutory frameworks must also be matched by implementation across Departments, which have responsibility at statutory and departmental level for statutory and mandatory disclosures.
“In terms of protected disclosures and Deputy O’Flynn’s request for a review, I am happy to engage with him or to get feedback on the experience of the individuals concerned. We need to have a protected disclosures environment which works in the interests of whistleblowers, who should be protected and supported with whatever issue they want to raise.
“I am happy to reflect on what Deputy O’Flynn has said today in this context, taking into account the fact there is a statutory review period built into the existing legislative framework. I will ask my officials to reflect on what Deputy O’Flynn has stated and what has emanated from what has been expressed by others involved in particular cases.”
While Mr O’Flynn thanked Deputy Chambers for his reply, he said it was “a bit like previous replies in that it does not really say much.”
“How many people will come forward as whistleblowers and sign these non-disclosure agreements, and how many problems will be hidden and put under the carpet yet again, before 2027?” the Deputy continued.
Ireland’s Protected Disclosures (Amendment) Act 2022 came into force in January 2023. The legislation was to build upon Ireland’s pre-existing whistleblowing legislation (Ireland’s Protected Disclosure Act 2014) and ensure Ireland is compliant with EU law.
The previous legislation only afforded protection to workers, including employees, consultants, contractors, those on work experience and agency workers. Under the Amendment Act, the definition of ‘worker’ was extended to include volunteers, trainees, board members and job applicants.
Deputy O’Flynn pointed to the case of the late Vicky Phelan. The late healthcare campaigner and whistleblower had, according to her solicitor, refused a non-disclosure clause on the first occasion that they met. Solicitor Cian O’Carroll said that his client had been determined not to sign a confidentiality clause to reach an early settlement to her case in order to highlight to other women that there had been misdiagnoses with smear tests under the HSE’s CervicalCheck screening programme. Mr O’Caroll said that her decision not to sign a non-disclosure clause was “very rare.”
Deputy O’Flynn added: “If we did not have the likes of Vicky Phelan, who decided not to sign a non-disclosure agreement, we may not have ever known of the scandals and the number of deaths. How many things have been hidden in Tusla, the HSE or banking?
“If whistleblowers had wanted to come forward from the banking sector prior to the collapse in 2007, when we in the House all now know there were people asleep at the wheel at the head of financial regulation, they could not have done so because they had signed non-disclosure agreements. Banking scandals were hidden. So many other scandals are hidden in this country that we are not even able to get to because of the fact that whistleblowers do not have legal support.
“We have to get this sorted, or else we will be a nation of cover up after cover up, learning nothing from all the cover ups.”