Bill necessary to protect individual and wider society

 

ANALYSIS:New legislation seeks to protect people who expose wrongdoing in public and private life. Will it go far enough?

BRIDIE COX’s experiences as a nurse are a salutary lesson in how exposing wrongdoing can be bad for your career.

She worked as a nurse in the disability and mental health sector in the UK for 30 years. But when she returned home to the midwest a few years ago to continue her work, she was shocked at the standard of care.

“It was like going back in time,” says Cox of the first institution she worked in.

What was most disturbing was the mistreatment: she says she witnessed oversedation of patients, physical abuse, bullying, intimidation and neglect.

Cox made a number of complaints, which her managers said were unfounded. When she followed up these complaints through “trust in care” – a procedure for managing allegations of abuse – the files were lost. When eventually it was dealt with, she was told again that her complaints were no longer valid.

Feeling isolated and unsupported, Cox left the service, dejected and disillusioned with the system.

IRISH public institutions have traditionally been notoriously secretive and suspicious of anyone who has tried to bring wrongdoing to public notice. Legislation such as the Official Secrets Act – which carries a penalty of up to seven years’ imprisonment – has hardly helped.

“The whistleblower who does not suffer grievously for his or her actions is a rare thing,” says William Kingston, a business lecturer at Trinity College Dublin who has regularly written about the need for legislation to protect whistleblowers.

Far from protecting institutions, he argues that lack of protection for whistleblowers can be profoundly damaging. Such protection, he argues, could have reduced the likelihood of massive failures such as the banking crisis, illegal charges for long-stay institutional care and the PPARS health-service payroll system all of which have cost billions of euro.

New legislation seeks to change this. The Protected Disclosures in the Public Interest Bill would protect workers in the public and private sector from reprisal for exposing wrongdoing.

But will it go far enough? Many jurisdictions have put in place similar protections, but the results haven’t always been encouraging.

“Most attempts I have seen to deal with this haven’t remotely got to the heart of the matter,” says Kingston. “You have to get the fear of total disaster out of the head of the person who is revealing information.”

John Devitt, chief executive of Transparency International Ireland, feels that while there are improvements to be made, the proposed legislation is on the right track.

“This legislation could be as important as the original Freedom of Information Act in protecting the public interest,” he says. “It will encourage workers to report concerns internally and demand stronger evidence of wrongdoing or fear of retaliation if the whistleblower reports to someone other than their employer.”

He says protections against dismissal or disciplinary action by their employers, as well as civil legal action taken against them for revealing information in good faith, are crucial elements of the legislation. There are, however, question marks over some parts of the legislation. A note attached to the Bill says the Official Secrets Act is likely to be amended. But there is uncertainty over how far this will go. Kingston argues that civil servants will need to be free of its sanctions if the whistleblowing legislation is to work.

In addition, he says compensation for an individual who goes on to suffer at the hands of an employer will need to be very generous.

The Irish legislation is modelled heavily on UK legislation which was enacted in the late 1990s; compensation for employees who suffer is unlimited. A National Health Service manager unfairly dismissed “as a whistleblower” over plans to relocate cancer services out of his county was awarded £1.2 million (€1.5 million).

Public Concern at Work, a UK-based charity which promotes whistleblowing, says these sums are small compared to the potential savings for the taxpayer. Its research found there was a 30 per cent increase in the number of frauds in Whitehall stopped by whistleblowers in the years after legislation came into force.

One of the loudest advocates for effective whistleblowing provisions has been Paul van Buitenen, who provided key information on abuses that led to the resignation of the European Commission in 1999. He insists that governments and business should have nothing to fear from strong legislation.

“Whistleblowing is not a crime,” he wrote, in his memoir, Blowing the Whistle. “It ought to be thought of as an important part of a modern and open administrative culture. Open and transparent organisations have nothing to fear from a whistleblower.”

COST OF BLOWING THE WHISTLE THE CASE OF NOEL WARDICK

NOEL WARDICK became the focus of a High Court action in 2010 after anonymously publishing confidential information about the Irish Red Cross on a blog.

As head of the international department with the charity, he alleged widespread problems within the organisation, including alleged financial irregularities.

He also used the blog to call for a full-scale independent investigation into the affairs and operations of the organisation.

The charity brought a High Court action against Google Ireland and internet service provider UPC seeking to reveal the identity of the blogger. In its petition it claimed the contents of the blog had a serious impact on staff morale, on fundraising and on the day-to-day running of the organisation. Mr Wardick decided to reveal his identity on his blog.

He was fired for “gross misconduct” in November 2010 under the charge of breaking his confidentiality agreement. However, Mr Wardick said he had spent four years trying internally to have the matters addressed to no avail.

A report commissioned by the charity later found that the charity had serious deficiencies in its accounting procedures. It struggled to cope with the level of donations it received, which led to significant delays in dispersing the money raised.

The charity says it has since improved its systems and that “every cent” donated for areas affected by natural disaster has gone to relief projects.