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Dáil
‹ Ceisteanna ó Cheannairí - Leaders' Questions

Whistleblower legal aid and McCabe case

Summary

Deputy O'Flynn sought legal aid and a meeting for a whistleblower, citing the long-running limbo and lessons of the Maurice McCabe case. The Tánaiste said he would consider the matter, noted existing whistleblower protections and review mechanisms, and advised the Deputy to provide further details to the relevant Department.

Last week in the House, I raised with the Minister, Deputy Chambers, the urgent need to extend legal aid to whistleblowers who step forward not for personal gain, but to protect the public interest. In that exchange, the Minister expressed his willingness to meet me and the whistleblowers in question. I accepted the offer in writing but have received no reply as yet from the Minister. There is plenty of time for that.

We all recall the case of Garda Maurice McCabe, a man falsely accused of the most heinous of crimes by Tusla, a State agency charged with the protection of children. The scandal shook this country to its core. It showed we treat our whistleblowers disdainfully. It showed we are not protecting but persecuting them. Today I raise a case that is equally as difficult as that of Garda Maurice McCabe. It is every bit as alarming.

In 2019, a former Tusla employee made a protected disclosure. He reported serious governance problems. It resulted in relentless retaliation and attack. In 2021, Tusla sent him a formal letter questioning his capability to work with children. This triggered an unauthorised background check in what appears to have been an orchestrated campaign to discredit him professionally, financially, personally and psychologically. Afterwards, at a hearing of the Workplace Relations Commission, WRC, Tusla made a commitment to launch a full inquiry. That was four years ago and to date, there have been no findings, no inquiries, no answers, no accountability and no justice.

This case is not unknown to the public. The current chairperson of Tusla, Mr. Pat Rabbitte, commented publicly on this in the Irish Examiner in 2019: "It is deeply concerning that a whistleblower has been left without any financial income." Two former Ministers for children, Katherine Zappone and Deputy Roderic O'Gorman, were also briefed. The office of the then Minister, Deputy O'Gorman, was so concerned that it offered the whistleblower free counselling after receiving a detailed account of what occurred.

The retaliations from Tusla continued and the attacks deepened. The information we have obtained shows there was a formal complaint to the Data Protection Commission that Tusla contacted the whistleblower's private counsellor and demanded access to confidential records. That is an extraordinary breach of personal privacy by a State agency.

Ms Kate Duggan, Tusla's current CEO, held a direct meeting with this individual. During that meeting, she was informed that Tusla had falsely accused him of being a danger to vulnerable children, an allegation made without foundation against a man whose only crime was to tell the truth. Again, there has been no inquiry and no justice.

This is not merely an administrative failing or systemic dysfunction. The State is failing whistleblowers. It is not protecting them but is destroying their lives.

Comment on this
Simon Harris The Tánaiste Fine Gael

I thank the Deputy for raising the matter, as I acknowledge he has on previous occasions, as he said. He raised it with my colleague, the Minister, Deputy Chambers, who has committed to engaging with him. I will welcome his views on the legislative basis we have in Ireland.

I am not familiar with the details and if the Deputy has details, he should furnish them to the relevant authorities. That would be useful. Ireland has comprehensive legislation to protect workers who raise concerns about wrongdoing in the workplace. We have been on quite a significant legislative journey to try to get it right. The Protected Disclosures Act was enacted in 2014. It was enhanced and amended during the previous Dáil through the Protected Disclosures (Amendment) Act 2022. A statutory review of the Protected Disclosures Act is built in. That is due to commence, I am told, in the near future. Under the law, it must be done by 2027. It must be done within five years. A public consultation will be held as part of that review. Those of us who were here in 2022 will recall that the Act has built into it a statutory review of the legislation. That will involve public consultation. We will be obligated as an Oireachtas to consider the legislation during the lifetime of this Dáil.

We will be obligated to, quite rightly, have a public consultation as part of that. At EU level, there is a review of the EU whistleblower directive, which is Directive 2019/1937, expected next year. The amended Act we have is a transposition of the EU whistleblower directive. That will be charged with reporting to both the European Parliament and the Council on the national law transposing the directive, so it asks how every country is getting on with fulfilling their EU obligations and whether any additional measures are considered appropriate for any member state in the European Union's analysis of people's compliance with that directive. The Commission has indicated the report will be finalised no later than 2026.

I say that by way of context for some of the broader issues the Deputy raised, because protecting whistleblowers is important. People who come forward in the public interest need to know that they can do so in an environment that is safe. That is the purpose of our legislation and indeed it was the purpose of the broadening of the scope of the legislation in 2022, where we made it clear that there was a broader range of people who could report wrongdoing, beyond employees, to include volunteers, shareholders, trainees, board members and job applicants, and ensure they benefited from the protection of the law. It also imposes new requirements on employers as regards the operation of a formal whistleblowing channel. There are also now special channels for the reporting of wrongdoing relating to law enforcement, security, defence, international relations or intelligence. Our law of the land, the Act, prohibits any penalisation or threat of penalisation for a worker who has made a protected disclosure. Penalisation can include unfair dismissal, unfair treatment, coercion, intimidation or harassment. Statutory protection from penalisation is provided primarily by the Workplace Relations Commission, which can make orders for restitution and payment of up to five years' salary in compensation. Cases can be appealed to the Labour Court.

Comment on this

I thank the Tánaiste for his response but, with the greatest of respect, they are only words. We are talking about a man whose life has been left in a legal limbo for over half a decade and who has been defamed, isolated, ignored and ricocheted from one Department to another. Two senior Ministers, officials, and the chair and CEO of Tusla knew about this, and nothing has been done. I am asking the Tánaiste, not just as Tánaiste but as a senior officer of the State: Will he with meet me and will he meet with the whistleblower? Can we launch an investigation? Five years of this man's life have been ruined by no Minister taking responsibility and by nobody putting in place a full investigation. His life has been absolutely destroyed and there is still no action or accountability. This man was only doing his job. He was there to protect the agency and saw corporate governance and governmental issues with the agency. He made a disclosure and tried to protect the agency, and he was met with a wall of attack and silence.

Comment on this
Simon Harris The Tánaiste Fine Gael

I thank the Deputy. When he criticised me about my response only being words, I am not sure what more I can provide in oral response to a question. I provided clearly in those words quite a bit of detail on the laws that are in place in our land. They are laws that those of us who are honoured to serve in government worked hard to put in place in 2014, with an enhancement in 2022. In the lifetime of this Government, we will carry out the statutory review. We are going to look at that at an EU level too.

Regarding the specific case, I am conscious of not knowing the detail. I am not doubting the Deputy's bona fides. I suggest that the appropriate thing to do would be to provide the relevant information to the relevant Department or Minister, who will process that in accordance with the laws of the land and the Protected Disclosures Act. Without knowing the details of the case or pre-judging any information that I do not yet know, the WRC and Labour Court are avenues that are available to any employee who experiences any discrimination.

Comment on this

He has been there and there has been no investigation since.

Comment on this
Simon Harris The Tánaiste Fine Gael

I cannot pre-judge. We have a WRC and Labour Court that are independent of government. We have An Garda Síochána. We have a number of avenues and robust whistleblower legislation. I suggest in the first instance, if the Deputy believes there are more issues that need to be considered, to provide them to the relevant Department.

Comment on this