OPINION:Protection of whistleblowers is a human rights issue as well as political goal
TODAY THE Irish Human Rights Commission (IHRC) is writing to the Minister for Justice, Equality and Defence to set out what the proposed whistleblowing legislation should include.
This will come as no surprise – not only is the need for legislation set out in the programme for government, successive failings in the fields of health, finance and political accountability (most recently outlined in the Moriarty tribunal findings) suggest Ireland needs to fundamentally reform its public governance, in relation to which accountability and transparency are key factors.
Whistleblower protection Bills were introduced unsuccessfully in both 1999 (by Pat Rabbitte) and 2010, the latter falling on the dissolution of the Dáil. This contrasts with the UK, where the Public Interest Disclosure Act has been law since 1998.
The issue has also recently arisen in the context of an inquiry request to the IHRC. This concerned a health worker who complained she was victimised after raising legitimate concerns about the standard of care in a hospital. It is notable there is no particular protection afforded to an individual who approaches the IHRC with their concerns about a possible breach of human rights.
While section 103 of the Health Act 2007 provides some protection for whistleblowers in the health sector who bring their concerns to the Health Information and Quality Authority (Hiqa) or the Mental Health Commission, it is unclear to the IHRC whether this mechanism is commonly known to healthcare workers, and also whether the whistleblowing authorised by this legislation works in practice.
There is little experience of whistleblowing in Ireland. In its annual report 2009, the Standards in Public Office Commission indicated that it receives a surprisingly small number of complaints every year under ethics legislation.
Article 10 of the European Convention on Human Rights expressly provides for the right to “impart information and ideas without interference by public authorities”. Individuals who disclose information they deem to be in the public interest are thus entitled to protection from punitive measures being imposed on them by employers about whom the disclosures are made.
In 2008 the Grand Chamber of the European Court of Human Rights considered the case of Guja v Moldova, which concerned an employee in the Moldovan prosecutor general's office. Mr Guja saw a number of letters, including one from a senior politician, which sought to bring pressure on the prosecutor general to end prosecutions against certain police officers.
After the prosecutions were dropped, a report covering two such letters was published in a newspaper and Guja admitted he had given copies to the press. Guja was dismissed from his job.
He instituted local legal proceedings, claiming reinstatement, but failed. It was determined that leaking the letters to the press did not constitute an exercise of freedom of expression. The European court found, however, that his dismissal constituted an interference with his freedom of expression, and considered that it was not justified as he had no effective way of raising his concerns regarding the letters with his superiors, and the very significant public interest served by the disclosure to the press.
The court’s decision offers clear guidance on what whistleblower protection should provide: the information should be weighty and it should first be disclosed to the employer or another competent body, or as a last resort to the public. The whistleblower should also act in good faith.
The IHRC is recommending to Government that consideration be given to providing an independent mechanism, perhaps expanding the existing remit of the Standards in Public Office Commission, such that each incident of whistleblowing made to a public employer or independent body such as Hiqa by an individual is reported to it.
This would allow the commission to follow up selected cases to see, first, whether structural problems addressed in the whistleblowing complaint were being addressed by the public body (where merited), and second, to ensure that the whistleblower was not victimised.
The whistleblower should also be able to contact that commission to give independent information and the protection afforded the whistleblower should continue in the future.
Whistleblowing alone will not solve the State’s problems. But as with many other necessary reforms, it will at least signal the State has learned a lesson on the necessity for transparency, and is now mature enough to accept legitimate criticism and to focus on tackling structural issues in the social, economic and political life of the country as much as in the financial sphere.
Maurice Manning is president of the Irish Human Rights Commission