Draft Bill may put 'undue burden' on whistleblower
PROPOSED WHISTLEBLOWER legislation should be revised to ensure it does not place an undue burden on those revealing wrong-doing and impose a chilling effect on reporting by the media, according to the Irish Human Rights Commission (IHRC).
The commission has sent its observations on the Protected Disclosures in the Public Interest Bill to the Minister for Justice. One of the functions of the commission is to make observations on the human rights implications of planned legislation.
The commission said there were too many restrictions in the draft Bill on the circumstances in which a whistleblower can make a disclosure to a person or organisation outside his or her employer. The section which spells them out should be replaced, it states.
The new section should allow a whistleblower reveal such information where he or she previously raised the issue with his employer or a relevant body or the appropriate Minister; a reasonable time has passed since the disclosure with no action; and he or she is acting in good faith and in the public interest, it said.
“The IHRC notes that Head 8 [dealing with this type of disclosure] is particularly important given that many disclosures of impropriety ultimately only come to light through the media and public scrutiny,” it states.
“The ability of a person to put information into the public domain should not be unduly restricted.”
The document also says that the draft legislation may place an unreasonable evidential burden on the whistleblower, as it falls short of the Council of Europe recommendation that a whistleblower shall be considered to have acted in good faith if he or she had reasonable grounds to believe the information was true, even if it later turns out not to have been.
The draft Bill states that the person must have a reasonable belief that the information is substantially true, but does not define those terms. They should be defined, according to the commission.
“The IHRC . . . is concerned that, rather than encouraging the whistleblower to come forward, the legislation may have the unintended effect of deterring potential bona fide whistleblowers,” it states. “The primary reason for this is the apparent overweighting of burden on the whistleblower under this legislation. The IHRC recommends that the potential of the legislation to place an undue burden on the whistleblower be examined.”
It recommends that, in addition to preventing an employer from penalising or threatening an employee who makes disclosures, harassment or discrimination against them should also be outlawed.