Dear sirs,
As you will be aware I worked in the Department of Public Expenditure and Reform until my
retirement at the end of June 2015. Prior to my retirement I had been heavily involved, since
its inception, in the formulation and enactment of the Protected Disclosures Act 2014 and
shortly before my departure was involved in discussions in relation to the Draft Guidance for
Public Bodies. Notwithstanding my retirement I have continued to take an active interest in
all matters associated with the Act and in this regard I would like to take this opportunity to
make the following submission in relation to the Draft Procedures.
Before I go into my submission in detail I should point out that all of my experience in
dealing with several and varied public bodies since the enactment of the Protected
Disclosures Act has demonstrated to me that there is a significant degree of confusion in
relation to the meaning and implications of this Act. Most public bodies are aware, and
indeed I spent much of my time making this clear to them, that they are required to have
procedures in place even if the Minister has not yet published his Guidance. My advice to
every public body that contacted me was to put some procedures in place, no matter how
rudimentary, and to head them as “Interim Procedures” pending the publication of the
Minister’s Guidance. To take this course of action would at least make them compliant with
the law.
Insofar as this satisfied most public bodies it also became clear to me that there is a
significant degree of anticipation on the part of public bodies generally that the procedures to
be published by the Minister will provide certainty in relation to many matters. While most
public bodies accept that having regard to the varying size of public bodies there cannot be a
“one size fits all” approach they are nonetheless concerned to be provided with clarity and
certainty in relation to several matters. It is clear therefore that significant expectation has
arisen that the Minister’s procedures will provide not only clarity but also clear
direction. While I accept that the giving of such clear direction may not be possible in every
case it must be accepted that this is the manner in which public bodies operate - they follow
instruction from the centre
Unfortunately, in my view, while the Draft Procedures deal well with the general aspects of
the handling of protected disclosures they are particularly weak in areas of specific concern to
public bodies and some of the statements contained therein are not only contradictory but are
likely to lead to further confusion. It has always been my view that in issuing Guidance the
Minister should in so far as is possible provide public bodies with clear and unambiguous
guidance rather than adding to any existing confusion. I am not necessarily convinced that
this is the case with the current draft and am of the view that further work is required. While
I myself have been a proponent of the idea that one size cannot fit all there is however no
doubt in my mind that certain matters, to which I will refer, need to be clarified if there is not
to be a free for all approach to matters.
As an example of the dangers of a free for all approach I would cite the provisions of section
222 which requires every public body to prepare an annual report -
Annual report
22. (1) Every public body shall prepare and publish not later than 30 June in each year a report in
relation to the immediately preceding year in a form which does not enable the identification of the
persons involved containing information relating to the matters specified in subsection (2).
(2) Those matters are—
1. (a) the number of protected disclosures made to the public body,
2. (b) the action (if any) taken in response to those protected disclosures, and
3. (c) such other information relating to those protected disclosures and the action taken as may
be requested by the Minister from time to time.
It is interesting to note that that the draft Procedures are silent on this particular matter. It is
clear from my interactions with public bodies prior to my retirement that many public bodies
are concerned with the meaning of the provisions of section 22(2)(a) in particular. It is clear ,
for instance, that any person who perceives that they have been penalised (and this perception
could arise several months after a relatively innocent disclosure) may claim that they have
made a protected disclosure event though they did not consider it to be such at the time it was
made. It is the perception of penalisation that will spark a claim and such perception may take
some time to take root. That being the case the matter of concern for public bodies is what
exactly they should report on? Should they report on every case put to them - verbal or
written, should they only report on written cases or should they only report on those cases
that have crystallised in the form of a claim to a Rights Commissioner under sections 11 or
12? A failure on the part of the Minister to clarify this issue will result in a mixed bag of
reporting the absence of any expected standard. Worse again, such a confusion of reporting
will inevitably lead to an inability to compare reports across the public sector and will bring
the Act into disrepute. It is essential, in my view, that the public sector is seen to operate the
Act not only in a fair but also in a consistent manner and that such operation should provide
an exemplar to private sector practice.
Notwithstanding the overall content of the Draft Procedures it seems to me that while
requiring public bodies to include clear statement of intent in their own procedures the draft
fails in one particularly important aspect in this regard. Procedures are not the law and the
Minister’s Draft Procedures are for the guidance of public bodies only. Although there is a
disclaimer at the end of the draft it is, in my view, extremely important to point out from the
outset that any procedure adopted by a public body cannot trump the Act itself. No
procedure can seek to diminish , restrict or otherwise prevent a worker from seeking to
exercise his/her rights under the Act. While compliance or otherwise with a set of procedures
may be of some persuasive value to a third party in the determination of a matter associated
with a protected disclosure the fact remains that non-compliance with any procedure cannot
be cited by a public body as a reason to argue that a disclosure was not protected. To give an
example where such an issue might arise we could consider the making of a verbal rather
than written disclosure. While the procedure of a public body may require that all disclosures
be made in writing a discloser may specifically choose not to do so. The mere fact that the
disclosure was not made in accordance with the procedure does not negate the fact of
disclosure. It seems to me that a discloser could legitimately claim before a third party that it
was the fact rather than the manner of disclosure that should determine the outcome. All in
all the necessity to avoid public bodies arriving at the conclusion that there procedures are, in
themselves, sacrosanct and unassailable is such that a clear statement to this effect needs to
be made right a the beginning.
There is no doubt that the best place for a disclosure to be made, and resolved, is at the level
of the employer. With this in mind it seems to me that the Draft Procedures need to
emphasise to public bodies that one of their main objectives in dealing with disclosure soft
wrongdoing, not matte how small or apparently insignificant ought to be the avoidance of
escalation and that all of its activities in relation to such reports ought be directed at early
assessment and resolution of an problems that arise. Failure to resolve at an early stage will
not only inevitably lead to escalation but also to additional costs and potential repetitional
damage. In this particular regard it seems to me that the Minister’s guidance needs to clearly
point out that the avoidance of escalation is a matter for each and every member roof staff
and not just the few. My own direct experience with certain public bodies has been that the
issue of dealing with protected disclosures is one only for the few people who are designated
within the organisation as what the Draft describes as “disclosure recipients” rather than
being one for all members not only of the management team but all supervisors. In this way
the view has arisen that the issue of protected disclosures can be hived off to a “protected
disclosures unit” and that no one else in the organisation need worry about the matter. Given
my earlier comment that the issue of penalisation is one of perception on the part of the
discloser it is absolutely essential that public bodies are made aware, through the Minister’s
Guidance, that this is matter for the many rather than the few.
While is am on the subject of escalation avoidance I should say here that there are a certain
terms and concepts contained in the Draft that give rise to concern. The term used for the
person who is the recipient of the disclosure is “disclosure recipient”. Leaving aside the fact
that this is unnecessarily confused with the person of the same title appointed by the
Taoiseach under Schedule 3 of the Act as the person to accept external disclosures of Section
18 type information the use of such a term is necessarily legalistic in tone for the recipient of
an initial disclosure. The use of any legalistic type term at such an early stage immediately
suggested an air of legality, an air which is likely to frighten most potential disclosers
off. The terms that need to be used throughout the document are simple - “discloser” and
“recipient”. In a similar vein I have concerns in relation to the rather loose use of the terms
“assessment” and “investigation”. The term “investigation” is loaded and should be used
sparingly. It implies a level of formality with all parties being advised of their rights which
again smacks of legality and is likely to deter any potential discloser. A clear distinction
must therefore be mad in the document between the concepts of “assessment” and
“investigation” with a greater degree of clarity being provided into the circumstance sunder
which a full blown investigation may be required. It seems to me that an investigation should
occur only in the most serious of cases where an initial assessment of the information
disclosed leads to a high probability of serious wrongdoing that cannot be resolved except tin
the absence of a full blown examination and exposition of the facts. It is to be hoped that this
should not be necessary in most cases. Clearly not all case will require an investigation. In
any event it occurs to me that an assessment, the terms of which should be clarified in the
Minster’s Guidance, should always precede and investigation. While this is referenced in
some detail in section 15 I take the view that the early reference to “assessment
/investigation” as appropriate are potentially misleading.
On some more specific topics I would firstly draw attention to the use of the term “alternative
external disclosures” in paragraph 9.2.3(e) and elsewhere in the document If this is meant to
mean a disclosure under section 10 then the term “section 10 disclosure” should be
used. The use of “alternative” is likely to cause unnecessary confusion and seems to follow
the same complicating logic as the use f the term “Disclosures Recipient” referred to above keep it simple.
Paragraph 4.1 paraphrases the definition of a protected disclosure however having regard to
my previous comment that the Act will trump any set of procedures I think it is important to
ensure that attention is at least drawn to the actual definition of contained in paragraph 5(1) of
the Act and that the main elements of that definition are more clearly drawn out.
Paragraph 4.2 contains the following statement "The Procedures should contain guidance on what is meant by the following terms- “
The list of relevant wrongdoings is then set out in the following paragraph. The difficulty I
have here relates to my earlier comments in relation to public bodies seeking
certainty. Unfortunately paragraph 4.1 does precisely the opposite and leave sit up to each
individual public body to come up with its own meanings. While I accept that the relevant
wrongdoings are very correctly down as widely as possible the failure to provide any
guidance or even further comment in relation to their meaning is potentially fatal. With each
public body required to come with its own examples such example are likely to be myriad
and possibly even incorrect. Any public sector manager reading paragraph 4.1 is likely not
only to be disappointed by the lack of examples here but is also likely to be extremely
annoyed at what is, in my view, being cast adrift.
The content of paragraph 6.1 is of serious concern. It seems to me that the “conveyance of
facts” is s seriously at odds with the concept of a worker having a “reasonable belief” which
is all that is required by the Act. Indeed the conveyance of facts as required by paragraph 6.1
is seriously at odds and contradictory with the statement made at paragraph 6.2 that workers
are not required to investigate. If a worker is not required to investigate (a proposition with
which I fully agree) how can he/she establish “facts”? If a worker is required to convey
“facts” how can a worker have the right to be wrong as set out at paragraphs 7.2 and
7.3? Given the contents of the subsequent paragraphs in relation to reasonable belief and the
right to be wrong paragraph 6.2 has been badly considered and should be removed. A
significant aspect of the Protected Disclosures Act is the concept of the reasonable belief. It is
difficult to see how this can be aligned with the conveyance of facts. A worker may arrive at
any number of conclusions based on the evidence of his/her own eyes and may have a
reasonable belief that there is wrongdoing afoot. The worker may be wrong for any number
roof reasons, including not having access to all of the facts. Rather than talking about fact the
guidance should instead focus on the concept and meaning of reasonable belief and should
not in any way attempt to diminish or reduce the concept.
In the vein of failing to provide clarification paragraph 8.2 is, in my view insufficiently
explained. Short of paraphrasing the Act this statement provided adds no value to the
exercise.
In the section setting out where a disclosure may be made reference is made to the potential
for a discloser to do so to a Minister for Government in accordance with section 8 of the
Act. it should be made clear here that this is an alternative route of disclosure and that a
worker in a public body may opt to disclose initially to the Minister rather than directly to the
employer. In my experience many public bodies do not appreciate this particular point.
Of mot serious concern to me in the entire document is section 16 which refers to the “Rights
of Respondents” . Where to start? At the outset referring to persons against whom
allegations have been made as “respondents” is, in light of my earlier comments about
escalation avoidance, a serious mistake. Once again it immediately conjures up a legalistic
framework which potential disclosers are likely to avoid. Why not call such persons the
defendants in which case the discloser could be called the plaintiff? If, as the Minister has
constantly stated, one of the objectives of the Act is ti encourage people to come forward
with their concerns the use of terms like the “conveyance of facts” and “respondent” seem
specifically designed to have exactly the opposite effect. That is just one concern I have. Of
more serious concern are the statements made in relation to rights of the”respondent” in the
face of the confidentiality requirement sin section 16 of the Act.
Paragraph 16.3 states "Whether it is necessary to disclose the identity of the discloser, or not, will depend upon the facts
of the case, which may include, for example, whether any allegation is made against an individual
and the nature of that allegation. The disclosure recipient will need to consider such matters when
determining whether a protected disclosure can be investigated and the nature of any investigation.
Persons making a protected disclosure should be encouraged to frame it in terms of information that
has come to their attention rather than seeking to draw conclusions about particular individuals or
specific offences. "
In my view this completely fails to address the issue and represents a significant cop out in
the Draft. No public sector manager will be happy with this statement. It provides neither
clarity nor certainty and represents a substantial threat to any potential discloser. In effect it
means that tin making a disclosure, which according to earlier paragraphs must “convey
facts” a discloser cannot be certain that his identity will not be disclosed notwithstanding the
constraints of section 16. The statement shown above will leave it to each public sector body
to determine the outcome with no continuity as a consequence of a lack of advice from the
centre. I am aware that an earlier draft contained the concept that a person against whom an
allegation has been made does not need to be made aware of the identity of the discloser
unless it is absolutely necessary for that person to conduct a defence. That particular
statement in my view reconciles the difficulties associated with section 16 and natural justice
and is a perfectly reasonable one to make. While no similar statement has been included here
it seems to me that the Department of Public Expenditure and Reform ought to be providing a
more definite line on the tricky issue. Surely it would be possible to seek legal advice on the
matter and to quote that advice along the lines of “ The Department has been advised that
……..” Even if such advice were inconclusive it would at least provide public sector
managers with some guidance. As it stands the only guidance given is that you are on your
own. Any worker reading this draft would be forced to conclude that making a protected
disclosure is a legally tricky thing to do. is this what we really want workers to think?
My comments above while broad in nature also refer to some specifics of the Draft
Guidance. It is absolutely correct to say that is is not possible to come up with a one-sizefits-all set of Guidance. The Guidance should however provide wha tit purports to say on the
tin - Guidance. In my view this document is short on Guidance for public sector managers
and contains within it a significant potential for reputational damage to the Department of
Public Expenditure and Reform. Parts of it are contradictory, other parts simply paraphrase
sections of the Act without explanation or guidance and other parts are seriously deficient. It
gives the impression of having been written by a person or persons who are unfamiliar with
the operations of the Irish public sector and who are not tuned in to the nuances of the
approaches likely to be taken by public sector managers. My assumption ids that this Draft
was circulated to Government departments prior to publication. While I have not had sight of
any of the response I would be fairly satisfied that most Departments did not circulate the
draft widely among the public bodies under their aegis. I can only speak from my own
experience in the Department of `Public Expenditure and Reform and repeat that there exists
a significant expectation among the many public bodies that the Minister’s Guidance will
present them with solutions. This document is short on solutions and high on
platitudes. While it may or may not be in a fit state to circulate more widely than tot the
Government Departments there is, in my view, a lot more work required before this
document will make a contribution to the Minister’s stated objective of encouraging people to
come forward with their concerns.
Noel Tallon
22 October 2015.