Senator David Norris

Friday, December 17, 2010

Prevention of Corruption (Amendment) Bill 2008 - Committee Stage - 1st December 2010

Prevention of Corruption (Amendment) Bill 2008 - Committee Stage - 1 December 2010
While I continue to support Senator Bacik and hope we can come to a speedy resolution of the amendment, I retain my view that suspicion is an element in the formation of an opinion. I am aware of the extremely serious case to which the Senator referred which involved a very brave woman. It is astonishing that no one spoke out previously at the hospital in question given the appalling practices and completely unnecessary operations, including symphysiotomy, which were carried out there.
They were afraid to speak out.
I understand the young woman observed developments for some time and formed an opinion as a result of a suspicion. This argument does not support Senator Bacik’s case in quite the degree she believes because——
If I may clarify the issue for the Senator, I was referring to general protection for whistleblowers and pointing out that whistleblowers in the health service and hospitals may fall between the gaps of the specific statutes to which the Minister referred. That is the problem with the sectoral approach. I was not referring to the opinion-suspicion issue.
Most whistleblowers are very serious people. They do not decide they do not like the look of a fellow, wonder if he has been up to something odd and make a report against him. All those with whom I have dealt are serious people who progressed from suspicion to opinion, as is appropriate. At the same time, I am pleased to support the amendments, although the Minister appears to be completely unwilling to take them on board.
I have been very engaged by the previous speakers’ comments. Having considered Senator Bacik’s argument, I am starting to lean against her proposition to introduce the word “suspicion” given what can happen when people are irresponsible in the formation of a certain opinion. Be that as it may, while I may have misunderstood Senator Regan, having thought about his argument, I am not sure the inclusion of the words “false, misleading, frivolous or vexatious”, which are the subject of several amendments in my name, necessarily implies that the Government’s definition of the word “opinion” does not encompass suspicion. What is at issue is the question of deceit and the possibility that a person may pretend to communicate an opinion or suspicion in good faith knowing that what he or she is saying is false, misleading, frivolous or vexatious. On reflection, I am not sure Senator Regan is correct although I am engaging with him rather than offering a definitive opinion.
I am delighted Senator Mullen has thoroughly undermined his amendment. He invoked deceit and referred to people misleading and so forth.
We are not discussing Senator Mullen’s amendment.
I will offer a rationale for my amendment in due course.
I will be interested to hear the Senator’s rationale, if he possesses one, which I doubt. I do not intend that as a personal comment.
I cannot put the matter further than to state that, having discussed this issue with the Parliamentary Counsel, the word “opinion” encompasses actual knowledge or suspicion. I appear to be getting some support for that view from Senator Norris and, to a lesser extent, Senator Mullen.
the wrong impression of Senator Bacik’s contribution and stand open to correction on the matter. Is she suggesting we provide that someone should be able to recklessly make an opinion or suspicion?
I understood the Senator was making such a suggestion. We need to be very careful because a balance must be struck between the right and duty of a whistleblower to come forward and the need to ensure people do not make accusations which traduce the good name of another individual.
That matter is addressed in the next amendment, which I was rebuked for discussing.
It is for this reason the question of whether the word “opinion” encompasses everything would ultimately be determined by the court on the basis of the level of knowledge of the person concerned.
may correct me if I am wrong but is he suggesting that one cannot have a false or misleading suspicion? I believe suspicions can be false or misleading. For this reason, I do not get the Senator’s point. If one starts defining the word “opinion”, which I have not seen defined in any other legislation——
The Minister is on dangerous ground.
I hazard a guess that it would be beyond the wit of the Oireachtas to define the word “opinion” in a manner sufficient to allow it to be legally parsed and analysed in a court case. Ultimately, the matter should be left to the courts to decide.
Of its very nature, an opinion is open to being incorrect or false. That must be the case.
The Minister purports to define the word “opinion” as including suspicion while at the same time arguing——
No, I stated that in the opinion of the Parliamentary Counsel the word “opinion” encompasses suspicion.
I remind the Minister that I have the floor. He purports to define the word “opinion”. All I am suggesting is that the word should be defined in the legislation. By using only the word “opinion” and not making it clear that it includes suspicion, one places the onus on the whistleblower to be sure of his or her ground before voicing a concern.
the history of sexual abuse in our institutions. The Minister referred to someone making accusations that damage the good name of individuals. That is exactly what was said to children and other people who raised concerns and suspicions about these types of activities. It is a fundamental issue.
Well done. That is a very good point.
The onus should not be on the individual with the suspicion because he or she is usually the weaker person who does not have the means to check out the facts but has a genuine concern and suspicion that something wrong is being done. It is for others in authority to check the matter out and it is important that those suspicions be taken up and acted upon. However, such an action is closed off by the way this is framed. The onus is placed on and a criminal sanction framed in the Bill for the whistleblower. Be careful of one’s ground before voicing one’s suspicion
Senator Regan has put it very well by saying the Minister’s wording places the onus on the whistleblower to be sure of his or her ground before making allegations. He pointed out, rightly, that it was the culture of non-disclosure of sexual abuse in institutions that led to so much suffering for so many children for so long. In Ireland more generally there has been a culture of non-disclosure. We must be clear about the context, not only in regard to institutional sexual abuse or medical malpractice cases such as I raised, in planning corruption or malpractice in banks and financial institutions——
Political corruption.
Political corruption. In all these areas there has been a culture of non-disclosure and in the past an absence of any sense of protection for whistleblowers. The Minister is right. We must have a balance and the good name of people must be protected. The balance went far too much the other way, however, and against giving any protection to a whistleblower who discloses in good faith. The amendment I propose, with the support of Senator Regan, would clarify for potential whistleblowers that they would be protected even if they did not have the full knowledge they thought they had. I think of all those people who disclosed planning corruption who were very sure they had seen envelopes change hands or that fraud had taken place but could not be absolutely certain because that is the nature of the kind of practice they were disclosing. It is done in secret. We must be careful not to create a perception that the onus on the whistleblower is so heavy that he or she must be absolutely certain before making any disclosure.
Minister’s wording in section 8A(1)(a) which states that a whistleblower is not protected if he or she has been reckless as to whether an allegation was false, misleading, frivolous or vexatious. That preserves a balance. I do not agree with Senator Mullen’s amendment which would remove those words.
I thought I had persuaded the Senator.
When I read the wording again, I was sure——
I might persuade both Senators.
To include “suspicion” as well as “opinion” would make it clear that the whistleblower does not have to be absolutely certain before making a disclosure but neither can he or she make misleading or frivolous allegations. I say to the Minister, with respect, that to include “or suspicion” would create a better and more encouraging perception for whistleblowers and potential whistleblowers.
I have been persuaded by Senator Regan’s argument, supported by Senator Bacik, and now give my unqualified support to the amendment. A very important series of related points has been raised. First, there has been a shift in the balance of responsibility. Second, some of the persons involved may be young people or people who are not entirely formed as to maturity and who may be easily intimidated. Cases of sexual abuse were mentioned which is a very sensitive area. I am now completely persuaded by this argument.
great value of the kind of debate we have in this House. It is possible, honourably, to alter the balance of one’s opinion. I am sure the Minister is capable of doing that too. I suggest to my colleagues who tabled this amendment that it is very important. I congratulate Senator Bacik on tabling it but I suggest she might consider withdrawing it to allow the Minister to consider the matter in greater depth with his advisers and the Senator resubmit it on Report Stage in the hope that the Minister will be persuaded and will refer the debate in this Chamber to the advisers in order that they may study it. We are all united in our wish to promote and sustain the welfare of vulnerable people who make these allegations in good faith.
I can look at this again between now and Report Stage but I reiterate we considered this issue. As far as we on this side of the House are concerned, we do not flip-flop and we listen to arguments.
That is making a swansong.
We do not flip-flop within a short timescale.
It is just a nuance of the argument of Senator Norris.
On the basis that——
If the Minister is giving a guarantee he will look at this matter, he must look at it with an open mind. It is not a flip-flop.
The Minister, without interruptions.
It is a development.
If the Minister could at least form a suspicion, as distinct from an opinion, he might——
Perhaps, upon mature reflection.
It is a sign of intelligence to be able to change one’s mind.
The Minister, without interruptions.
Our premise is that “opinion” includes suspicion, actual knowledge or a belief. I would not suggest what is being suggested, namely, that in some way the use of the word “opinion” suggests the person in question must be absolutely certain about the issue he or she is reporting. I do not accept that at all. It is up to the authorities——
It is a grey area.
No, there is a suggestion that in some way——
No one suggested that.
——there is a greater onus on the person because of the use of the word “opinion” rather than “suspicion”. That leaves aside the fact that as far as we on this side of the House are concerned, the word “opinion” includes “suspicion”. I will look at this again and consider whether it is possible to define “opinion”. I do not believe one can but we will ask the Office of the Attorney General. I do not believe that adding the word “suspicion” will advance or broaden this in any way. If one were to include the word “suspicion”, one would probably have to look to other similar words to see whether they, too, should be included. Where would one end up? The use of the word “opinion” is recognised in courts by the Judiciary and it is fully understood what it is intended to mean in particular instances. I do not see how this argument can advance. It may very well even suggest there is a differentiation between opinion and suspicion whereas, as far as we are concerned, there is not.
Is amendment No. 1 being pressed?
I would not press it if I thought the Minister would take the debate seriously and would consider the issue between now and Report Stage. He said he——
I take the debate seriously.
I accept the Minister said that but I note from the Order Paper that Report Stage is to take place immediately after Committee Stage.
I did not know that.
I do not suggest the Minister knew that. I am informing the House of it. I do not believe Senator Norris was aware of this either.
The way the business of this House is ordered is absolutely disgraceful. This is another example of the idiocies perpetrated by the Leader.
I did not know that.
I do not suggest the Minister knew it.
It is an absolute shame.
I would be happy to withdraw the amendment if I thought there would be a gap between Committee and Report Stages in order that the Minister might be in a position to consider it. There has been a full debate on the amendment. The matter was put in the other House but the debate there was not so full.
Committee to sit again.
on amendment No. 1:
21, after “opinion” to insert “or suspicion”.
Given the circumstances, I withdraw the amendment.
Amendments Nos. 2 and 4 are related and may be taken together, by agreement. Is that agreed? Agreed.
I move amendment No. 2:
23, to delete “has been or is being” and substitute “may have been or may be being”.
2 and 4 relate to a similar concern in respect of the whistleblower protection in section 4. Again, we felt the onus is being placed, under the Minister’s wording, on the whistleblower to be clear that he or she had formed an opinion that an offence under the Prevention of Corruption Act has been or is being committed. Using the Minister’s wording, the onus is placed on the whistleblower to form an opinion that an offence has been or is being committed. In our view, that is too heavy an onus on a potential whistleblower. It seems as if it requires the whistleblower to know what sort of offences are envisaged under the Prevention of Corruption Act before he or she would report any opinion to anyone in authority about his or her view.
would give greater protection to whistleblowers and create a more encouraging climate for potential whistleblowers. Instead of stating the whistleblower must have formed the opinion that an offence has been or is being committed, it would be somewhat more nuanced and would state that an offence “may have been or may be being” committed.
that every potential whistleblower, including, as Senators Norris and Regan said, very young people who may be very vulnerable and easily intimidated, would know the law on corruption offences — in fact, we cannot presume anyone knows what the Prevention of Corruption Act states in terms of offences. Therefore, it would be a more appropriate approach to state they must have formed an opinion or suspicion in good faith that an offence “may have been or may be being” committed. This does not change the substance of the section but it creates a little more space for a whistleblower to form an opinion in good faith and to be clear he or she will be protected if he or she reports or discloses that suspicion to somebody in authority.
4 refers to subsection (3), where “a person has committed or is committing an offence”. The amendment seeks to introduce the term “may have committed or may be” committing an offence. To put it in plain language, if a potential whistleblower thinks somebody may be committing an offence of corruption, the person can report that in good faith. It does not require that the person believes an offence of corruption has been or is being committed. It is a nuanced amendment, which we believe creates a more welcoming and encouraging climate for potential whistleblowers, whom we want to encourage to make disclosure in good faith of suspicions and opinions about corruption.
I support the amendment, which strengthens the protection of whistleblowers. As Senator Bacik said, it is a nuanced view. One could say that having an opinion that “it” has been committed does not require “it” to have been committed. At the same time, this will offer reassurance to people who have a suspicion or an opinion that something may have gone wrong, where the person is not in a position to state objective facts with clarity but believes something sinister is or may be occurring.
to a situation where there will be time for reflection, I urge the Minister to take the amendment back for reconsideration rather than rejecting it. It is all of a piece with the earlier amendment, as Senator Bacik argued very effectively. This would be a practical way of dealing with this important matter, if it is reserved for further discussion.
I agree with these amendments, which are on the same lines as the previous amendments we have discussed. The manner in which the section is framed is too onerous on the whistleblower and the amendments are well grounded.
This amendment is closely related to the previous amendment proposed. It might be of use to think of this in terms of a situation where a person has second-hand rather than first-hand knowledge. Are we discussing the facilitation of potential whistleblowers who do not have a direct handle on the evidence of wrong-doing but who are, say, approached by a person they trust within an organisation who tells them something has happened, and who then feel an obligation to report what they heard? Such evidence might be regarded as hearsay in the view of the courts but would and should, in the whistleblower’s view, facilitate an investigation into what the person has heard. Is that useful in terms of considering the distinction between what is contained in the legislation and what Senator Bacik has proposed?
Justice and Law Reform (Deputy Dermot Ahern): I am minded to accept the amendments, although some of the documents before me would suggest they are not necessary. As I said, opinion encompasses belief and suspicion; it does not connote certainty. Therefore, there is no need to change “may” to “may have been or may be being”. The whistleblower is not required to prove that corruption has been or is being committed. He or she is not required to be certain. He or she is clearly protected when communicating an opinion, which includes suspicion, that corruption has been or is being committed. The only requirement is that the whistleblower avoids knowingly or recklessly being false, misleading, frivolous or vexatious. It is really a balance between, on the one hand, encouraging whistleblowers and, on the other hand, protecting people against whom an allegation has been made.
to accept the amendments today. There is a time constraint because we want to get the Bill passed and, if I accept the amendments, we have to go back to the Dáil. We want the Bill passed by 14 December because there is an OECD deadline. I will accept the amendments, and on Report Stage we will have to find time to go back to the Dáil. They do make sense.
Bravo. Well done to the Minister. That is brilliant.
Senator Norris has put it very well. I am very grateful to the Minister for being so open to accepting the amendments and for indicating he will do so. They will strengthen and improve the quality of section 4 of the Bill and will encourage a greater culture of disclosure in good faith by whistleblowers. That is an important change of mind and I am grateful to the Minister for accepting the amendments, which will send a very welcome signal to potential whistleblowers that they will be given adequate and appropriate protection where they disclose in good faith their belief or opinion that an offence may have been or may be being committed. I thank the Minister.
As I have accepted the amendments, for logistical reasons we would have to have Report Stage today.
I am happy with that.
Are we talking about these amendments and Senator Bacik’s previous amendments?
We will have to deal with them all today due to logistical reasons in regard to bringing the Bill back into the Dáil.
As the person who fought that battle on the issue, if Senator Bacik, whose amendment this is, is satisfied, I will certainly accept it, as I am sure she will.
(Senator Maurice Cummins): The House will decide that at the end of Committee Stage. We cannot decide on it now. That is the procedure.
(Senator Maurice Cummins): Amendments Nos. 3 and 6 are related and will be discussed together.
I move amendment No. 3:
26 to 29, to delete all words from and including “misleading,” in line 26 down to and including “vexatious,” in line 29.
what we have been discussing recently and what I am proposing concern different paths up the mountain. We want to achieve a culture of transparency in which people will not feel there will be a chilling effect in reporting their belief there has been corruption. The same motivation underlies Senator Bacik’s amendments and mine.
the critical role played by whistleblowers in fighting corruption. PricewaterhouseCoopers estimates that some 40% of all cases of corruption and fraud are exposed by whistleblowers. Individuals such as Eugene McErlean at AIB and Sherron Watkins at Enron have in the course of their work reported concerns or evidence of wrongdoing or harm to others. It is important to remember they are motivated to do the right thing in the common good. That is what we are talking about in this debate. It is to fulfil international obligations that the Government has brought forward this legislation. It is important to remember that the role of whistleblowers has been recognised by the United Nations, the Council of Europe and the OECD. It is because these organisations place whistleblowing at the heart of a national strategy to prevent the abuse of power that we have this Bill. We need to be very careful, therefore, about what we include in and leave out of it.
the sectoral approach taken by the Government to whistleblowing, as addressed by other Senators. The approach is folly. We will be left with very diverse and confusing standards of protection for whistleblowers and significant gaps in legislation. Irrespective of whether one is talking about child abuse, corruption, fraud or mismanagement, it should be possible to identify certain principles that apply to all of these areas. It should be possible to identify whether allegations are made in good faith and establish a mechanism for people to report to an authority beyond their employer because of fear or possible intimidation by that employer or employees. One can pretend that the drafting of general legislation would cause problems, but I do not believe it would. The same principles generally apply to whistleblowing across the board. I refer to what whistleblowers need in order to do what they must do and the wider need of society to prevent the making of many vexatious, irresponsible, worrisome or unfounded claims. I am concerned the Bill will not protect individuals such as Eugene McErlean or a single whistleblower in our banks reporting fraud, overcharging or reckless dealing. It is remarkable, given what we have discussed incessantly in the past few months, that these issues remained unaddressed in this legislation. That is very noticeable and odd, to say the least.
not hold unscrupulous employers to account for covering up wrongdoing of many shades other than what is prescribed in it. When one considers the penalty imposed on individuals such as Mr. Noel Wardick, a former director at the Irish Red Cross who drew attention to serious issues of mismanagement and a failure to discharge funds properly, one realises it is remarkable that we are not taking the opportunity this legislation presents to establish more general principles pertaining to whistleblowing. It is vital that we do so, bearing in mind that the Irish Red Cross almost has a statutory function and significant national responsibilities at certain times and in certain ways. It is a classic example of a case in which somebody feels the need to report beyond his or her employer and the Garda in order that the best interest of his or her organisation and the public would be served.
propose to delete the words “misleading”, “frivolous” and “vexatious” such that the section would provide that a person would not be liable for damages, save where, in communicating his or her opinion to the appropriate authority, he or she knows his or her opinion to be false. Let me reassure the Minister and others in case there is any doubt. It is not that I have any sympathy for someone who knows what he or she is saying is in any way misleading, frivolous or vexatious. One must consider the two amendments together. We are not just talking about the person escaping liability in the courts but also about the circumstances in which a person might escape penalisation by his or her employer. I am worried that the legislation, as drafted, will lead to a chilling effect on potential whistleblowers. They may consider it may be said what they are doing is misleading or vexatious. I am uncomfortable with the subjectivity associated with these concepts. The test should be one of falsity. Transparency International has advised that it is highly unusual and worrying for a provision such as this to be inserted in such legislation. It believes the Bill, as presented, will silence potential whistleblowers.
that damages may be sought against an employee if what he or she reports is deemed to be reckless in the sense of being false, misleading, frivolous or vexatious. This type of provision is not included in any other whistleblower legislation, in Ireland or overseas. One must ask why anyone would come forward if he or she believed he or she could be penalised by his or her employer. That is the point that causes me particular concern. I refer to the raising of a concern that one’s employer deems to be reckless, vexatious, frivolous or misleading. Even where an employee makes a genuine mistake in reporting, would it not be easy to brand the report as frivolous or reckless? Such mistakes are possible and may even be inevitable, but a whistleblower should not be punished according to such a subjective and unfair standard.
reckless behaviour? Would a person mistakenly reporting a concern of corruption to a non-designated body such as the Standards in Public Office Commission or the Office of the Comptroller and Auditor General be deemed to be reckless? The standard runs contrary to the common law principle of good faith, which implies a person believes the substance of the report to be true and does not act maliciously. Would that not be a better standard to apply? The good faith principle is at the heart of the United Kingdom’s whistleblower legislation and has been tested in British courts for the past decade. The new test of recklessness and frivolity will serve only to dissuade those who have genuine concerns from reporting for fear of being branded as reckless. That is my concern. It is not that I want to provide comfort for those who in any way know or believe what they are saying is frivolous, vexatious or misleading.
careful about the overall context and import of this legislation. My fear is that it could have a chilling effect on those who genuinely have a matter to report. Why not simply require that what they report must not be false? If one considers the imposition of criminal liability, one will note it just applies to circumstances in which one knows one’s statement is false. If that is the threshold at which the law intervenes, should it not be the threshold applied across the board when offering protection from civil litigation and penalisation by an employer?
I listened with interest to what Senator Mullen had to say. I believed initially these amendments were absurd, dangerous and self-contradictory and the Senator has not persuaded me that they are not.
undermined his own case, particularly in the context of the words he used. Earlier I urged the Minister to reflect on this matter and was successful in getting him do so. I urge the Senator to reflect on it also.
be a tiny margin for arguing about whether something is reckless. However, it is not possible to state anyone who makes an allegation and knows it to be vexatious, misleading or frivolous should be protected. I have always stood up for principles and whistleblowers. I have even blown the odd whistle myself. However, it would be outrageous to protect someone who knows that the allegations he or she is making are vexatious and who makes them merely to upset the person who is the subject of them. That is arrant nonsense and I am 100% opposed to it.
to invoke the names of Mr. Eugene McErlean who worked for AIB and Mr. Noel Wardick, a former director of the Irish Red Cross. I have raised issues on behalf of these individuals and it is seriously damaging to their reputations to suggest they require such protection. The allegations made by the two gentlemen to whom I refer made were certainly not misleading, frivolous or vexatious.
That is not the point I was making.
If the legislation has a chilling effect in preventing people from knowingly making vexatious, misleading or frivolous allegations, so much the better. That is what legislation should do.
argument which can be made in respect of the second amendment, but I urge Senator Mullen to withdraw both of them.
Transparency International has pointed out——
I do not care about that matter. Mentioning the name of an organisation does not mean anything. The Senator has not sustained his argument.
I took the trouble to——-
(Senator Maurice Cummins): There should be no interaction between Members.
I would be extremely surprised if Transparency International wanted to incite people and protect those who knowingly make misleading, frivolous or vexatious allegations.
The Senator is intent on disagreeing with the amendments and did not listen to what I said.
(Senator Maurice Cummins): The two Members should address their remarks through the Chair. There should be no interaction between them. Let us deal with our business in a proper way. Has Senator Norris concluded?
Yes, I believe I have made the point. The language is clear. Protection is not afforded to people who make allegations which they know to be misleading, vexatious or frivolous for corrupt reasons. The import of Senator Mullen’s amendments would be to open a blackmailer’s charter. If Transparency International stands over the amendments tabled by the Senator, it has made a mistake. I am certain the Senator has tabled the amendments in good faith. However, I do not understand the logic behind them and he certainly has not persuaded me by his arguments.
Transparency International wants another test to be applied.
(Senator Maurice Cummins): The Senator will have the right to reply when everyone else has contributed.
I appreciate what Senator Mullen is seeking to do with these amendments which is similar to what I was trying to do, namely, ensure adequate protection for whistleblowers who disclose in good faith. However, I am not sure that removing the relevant words and making the test one of knowing something to be false and excluding the test for recklessness would be the best way to proceed. The amendment the Minister accepted will enhance the protection for whistleblowers to a sufficient degree and ensure a balance is struck. While I appreciate the aim of the amendments, the balance to which I refer must be established. It is important a message is sent to potential whistleblowers that they will encouraged to disclose information in good faith. We must also ensure we do not——
Would the Senator afford protection to persons who knowingly make vexatious allegations?
That is my point.
I agree that there is a difficulty in respect of recklessness. In our criminal code it is clear a different form of mens rea applies. On the other hand, we are referring to civil liability, particularly in the context of section 4(1)(a). A balance has been struck.
I wish to clarify two points. In the context of what Senator Bacik stated, I am not proposing that we remove the test relating to recklessness. I am, however, proposing that the test relating to knowledge and recklessness be confined to the issue of falsity.
contribution was both entertaining and dramatic. However, he fails to comprehend the import of what I am saying about removing the words “misleading”, “frivolous” and “vexatious”. I am not suggesting we should protect those who knowingly make misleading, frivolous or vexatious claims or reports. I am concerned instead with establishing a context in which people will not feel unduly burdened, particularly in the context of their potentially being penalised by their employers, when it comes to making such claims or reports. An employer could, for example, decide, on a subjective basis, that what a whistleblower did was misleading. I suggest we adhere to the principle established under the criminal law, namely, that a person who does something which he or she knows to be false will get into trouble. That would pretty much cover matters. By including the words to which I refer, it adds in some way to the chilling effect.
context in which whistleblowing occurs provides the key to understanding what I am saying. With respect, I believe Senator Norris did not pay adequate attention to my arguments in this regard. I am proposing that we replace what is contained in the Bill with something along the lines of the British model. In such circumstances, the legislation would refer to making claims in good faith and not being malicious. The Senator did not appear to comprehend that aspect of my argument either. I am not seeking to establish a blackmailer’s charter or give comfort to those who make misleading, frivolous or vexatious claims. I thought that should have been very clear to the Senator. However, I believe he chose heat over light — or perhaps drama over substance — in the context of the approach he chose to take to my amendments.
that the test of falsity should be maintained. If a person knows that what he or she is saying is false or if he or she is reckless as to whether something is false, that should be sufficient to prevent irresponsible or dishonest whistleblowing. We should opt for a test of good faith and presume an absence of malice.
While I accept that Senator Mullen tabled thee amendments in good faith, the net effect of what he is suggesting — which he readily admitted — would be that the test would be restricted to one of falsity. In deleting the words to which the amendments refer, he would, in effect, be providing protection for persons who knowingly or recklessly make communications or offer opinions that are misleading, frivolous or vexatious. I could not accept this.
was originally published, the test of whether a whistleblower would receive protection was simply based on whether he or she had acted reasonably and in good faith in forming an opinion and communicating it to the appropriate person. I proposed an amendment which was accepted on Committee Stage in the Dáil in respect of this test. As a result, the Bill now provides that a whistleblower will be protected unless, when communicating an opinion, he or she does so knowing or being reckless as to whether that opinion is false, misleading or frivolous or if he or she furnishes information in this regard that he or she knows to be false or misleading.
an amendment on Report Stage in the Dáil in respect of allegations of whistleblowing which are false. As a result, the test as to whether a person is guilty of an offence rests on whether he or she actually knew an allegation was false as opposed to whether he or she ought to have known it was untrue. I am satisfied, therefore, that the section, as it now stands, strikes the correct balance.
referred to the treatment, from a civil point of view, of employees. I refer him to section 6 which inserts an new Schedule 1 in the principal Act and which states:
under this Schedule before a rights commissioner or the Labour Court in relation to a complaint that section 8A(5) has been contravened, it shall be presumed, until the contrary is proved, that the employee concerned acted reasonably and in good faith in forming the opinion and making the communication concerned.
is provided for employees who must obviously make complaints in good faith. While Senator Norris may have been overly colourful in what he said, I agree with his opinion on this matter. Deleting the words in question would have an adverse effect in that it would provide protection for someone who knowingly or recklessly makes vexatious, frivolous or misleading allegations.

Order of Business - 1st December 2010

Order of Business - 1st December 2010
Order of Business – 1st December 2010
Senator David Norris: I note that exception was taken to the use of the word “asylum”. An asylum is a place of refuge and we should remind ourselves that we are in such a place. We are very privileged to be Members of this House and we are insulated, especially from the weather which obtains outside at present. We should consider those who do not have our privileges and who are weak and vulnerable. I refer to the elderly, the homeless and the poor. It is imperative we think about the plight of these people.
I am concerned about the views expressed by some members of Fine Gael to the effect that the party intends to liquidate our utilities — beginning with Bord Gáis Éireann — when in government. We have given away the Corrib gas field. I would be interested in hearing Fine Gael’s arguments in respect of this matter.
The matter of the Leader interfering with the processes of the House was raised. Did he play any role in respect of the extraordinary decision taken yesterday in the context of Standing Order 30? Will the Leader indicate if Government influence brought to bear? The decision to which I refer was very strange. What happened yesterday was similar to what occurred when I tried to raise a matter under the Standing Order 30 some years ago. At that time, I was informed that the matter in question was not one of national importance. While I was raising it, however, the then Taoiseach, the late Mr. Charles Haughey, was on his feet in the Lower House declaring a national emergency.
I wish to comment on the agreement that has been reached between financial institutions of various kinds and the Government. This is a serious matter and I appeal to the Leader to ensure the details of this arrangement are laid before the House and that Members will be given an opportunity vote on them. I am of the view that a constitutional matter is involved and last night I took legal opinion in respect of it. I am informed that the Government cannot alienate its power to decide issues. I have also been informed that:
The Government seems to be saying that it is covered by some EU Regulation and is necessitated by the obligations of our membership. However, even if it is necessitated by the obligations of membership of the EU, it couldn’t be necessitated by the obligation to sign up to a bailout so that doesn’t protect the government at all.
It would be a very serious matter in respect of which a person would take a constitutional action. I am considering doing so but I must weigh in the balance the fact that this might be misconstrued as an attempt to protect my own ultimate political ambitions.
I make an appeal to Deputy Rabbitte, who stated in the Lower House and in various newspaper articles——
An Cathaoirleach: The Senator’s time is exhausted.
Senator David Norris: ——that in his view there is an argument to be advanced in respect of this matter under Article 29 of the Constitution. The Deputy may be the appropriate person to take the constitutional action to which I refer——
An Cathaoirleach: The Senator should respect the Chair by concluding his comments.
Senator David Norris: ——and I hope he does so.
An Cathaoirleach: Decisions relating to Standing Order 30 are made by the Chair, not the Leader. I made the decision in respect of the matter raised yesterday.
Senator David Norris: Is the Cathaoirleach quite sure that is the case?

Private Members Motion on the National Recovery Plan 2011-2014 - 30th November 2010

Private Members Motion on the National Recovery Plan 2011-2014 - 30 November 2010
Senator David Norris: I welcome the Minister of State, Deputy Kelleher, to the House, with which he is very familiar. I do not propose to score partisan political points, but that does not mean I will not have some criticisms to make. If the Minister of State’s speech was his last in the House, he should note it was a fine one, although I did not agree with some of it. It was very clear that he spoke from the heart, particularly when he invoked the future of his family. Few of us in the House could remain unmoved by the genuine sentiments he expressed. However, I support the motion. I had not anticipated speaking at this point, but I am happy to do so.

The first point of the motion states Seanad Éireann “notes that the Government’s four year plan published on 24 November 2010 contains nothing by way of concrete measures to restore employment”. It does not contain very much and I am not saying this in a partisan way. The plan certainly does not appear to contain enough. I do not make this charge for the purpose of gaining political advantage in that this comment has been made by a number of financial experts. For that reason, it is worrying. It is a central point in the remarks made by Dr. Krugman who certainly does not share the Minister’s view on bondholders. He holds what appears to be a majority view which is shared by the directors of some of the largest bond-holding companies. All economists admit that what has happened here is unjust, immoral and indefensible on ethical grounds. I asked on the Order of Business whether it was possible to sustain an appropriate financial system, or a just and decent civil society, on grounds that were universally acknowledged as being immoral, unjust, unethical and, according to Dr. Krugman, a mistake. I agree with that point.

It is true the Government is feeling overwhelmed. Who would not? I certainly would feel under considerable pressure. I have a degree of sympathy with the Government members as human beings. All of us have seen repeated on a number of occasions in the past few days the extraordinary scanning shot of the Government Front Bench in the Dáil. Body language is very instructive. There is no doubt the Members shown were beaten people. One only had to look at the expressions on their faces to realise they were really concerned.

My Labour Party colleagues have called on the Government to establish a strategic investment bank to fund viable businesses. This is absolutely desirable and who could possibly disagree? However, from where will they get the money? I do not know. We have actually frittered away our resources. Therefore, this good idea is not sustainable. Like the Minister of State who was engaging in his frankness, I am not an economist.

I welcome some of the points made by the Minister of State. I did not have time to read his speec, but I was listening to it in my office. I am glad the issue of upward-only rent reviews has been addressed and is continually under review. I refer, in particular, to the working group on commercial rents. This is a vital issue. However, why is it taking so long to address it? I have been talking about it for years in this House. I highlighted what I had seen in our most fashionable streets. I walk up O’Connell Street and Grafton Street and through the Hibernian Way and could see what was happening. It was blindingly bloody obvious. It was insanity to have upward-only rent reviews. It was also insanity to increase our VAT rates when the British did not. We share a land border with a part of the disunited kingdom which was lowering its rate when we were increasing ours. There was a certain amount of daftness in that regard. Let me welcome the provision to address this issue.

I welcome the scrutiny of legal costs, in respect of which there is a scandal. The most glaring example concerns the tribunals. Some members are commanding salaries of €2,500 per day, day after day. Let us have itemised accounts from lawyers. The Minister of State should get his colleagues to consider this. One simply never receives itemised accounts. One receives a bundled-up bill referring to stationery, postage, research, secretarial work and so forth. It is a load of nonsense and only one bald figure is listed. Since we are down to our last brass farthing, let the unfortunate people who have to pay legal bills know how much is spent on stamps, correspondence and secretarial time. I am not making any charges against individual legal practitioners because the practice to which I refer is followed throughout the profession. One never receives an itemised bill. I have never received one, although I am a very litigious man. I have never in my entire life received an itemised bill from any legal source. Let us address this issue.

The interest rate of 5.8% does not represent generosity. We have been good citizens of the European Union throughout our membership. We have taken very hard medicine and are being rewarded with punitive rates. The interest rate is an average figure; the actual figure for part of the loan will be considerably higher. No good deed goes unpunished. Let the people in Europe read this and realise there is at least one person here who recognises the lack of collegiality.

I was listening to a German Green Party member doing his damnedest to say Ireland should immediately scrap its corporation tax rate of 12.5%. How neighbourly is that? The journalist Polly Toynbee is not a Member of Parliament, but the language employed by her in her article in The Guardian, a very good newspaper, was a disgrace.

Senator John Paul Phelan: Hear, hear.

Senator David Norris: It was a racist caricature and she should be ashamed of herself for describing us as beggars, cheats, liars and thieves. Is that the language used by a good neighbour? In spite of its not being so, Ms Toynbee’s view is widely held underneath the soft parlance of the British Conservative Party.

With regard to Mr. Chopra, in one jump we seem to have gone from snip to chop. His emollient tones did not fool me one bit, including comments to the effect that we were brave little soldiers and that the Irish had character. Why the hell should we accept the interest rate offered? We should be given the money by those concerned at a rate of 1% because we are saving their bacon.

I hope to God someone from the ECB reads this debate. The ECB flooded the market with cheap money. It did not care where that money went and, of course, it went into our half-baked banks. The ECB was then among those who carried out stress tests on those banks and it informed everyone that they were perfectly all right. Who is the ECB fooling? Why should taxpayers who had no part in what happened be penalised and placed in penury?

An Leas-Chathaoirleach: The Senator has one minute remaining.

Senator David Norris: That is just too bad. I wish I had more time. There are certain areas on which we can focus. I have just been listening to a news report on RTE regarding the Kerry Group, which is a splendid organisation. The Kerry Group began as a little co-op and it now provides 23,000 jobs worldwide. It is to businesses of this sort that we should provide encouragement.

The Minister of State said “It is clear the best way to support businesses and create jobs is to fix the banks”. He should return on Thursday when we will be debating the EU-IMF programme for Ireland and we can then discuss how to fix the banks. I know how I would fix them and I am aware of how the citizens of this country would like to see them fixed.

The Minister of State also referred to our export performance, which is fine. He also indicated that “the Government secured a commitment from the main lenders, AIB and Bank of Ireland, to make available not less than €12 billion in total for new or increased credit facilities to SMEs”. Is this happening now? Is it possible to believe a word those in these two banks say? Will the position in this regard be monitored? Let us consider the figures provided by Mr. John Trethowan in respect of current practice in the banks. These figures indicate that at least 25% of the applications from small and medium enterprises were improperly rejected. That is the only conclusion one can reach in respect of this matter.

The Minister of State referred to prompt payment by the Government within 15 days of receipt of invoices. It is about bloody time.

An Leas-Chathaoirleach: I ask the Senator to conclude.

Senator David Norris: I am doing so. What is being done with the National Pensions Reserve Fund is disastrous. There is a train crash coming down the line in respect of pensions and the EU and the IMF are being allowed to dip their nasty little fingers into this fund.

I had hoped to speak after my colleagues, Senators O’Toole and Mullen. I do not have permission to move their amendment to the motion but I am very interested in it. I would like a proper examination to be carried out in respect of the proposal for metro north. I hope this project proceeds and I was very much involved in progressing it in the early stages. The project must provide good value, however, and must give rise to the creation of the envisaged number of jobs.

The second part of the amendment in the names of Senators O’Toole and Mullen refers to the moral hazard created by narrowing the gap between welfare and wages giving rise to a need for an immediate reversal of the decision to reduce the minimum wage. I was not able to give my support to the amendment as a result of the inclusion of this stipulation. I want to protect people on the minimum wage. I have been lobbied by restaurant owners, however, who are going out of their minds in respect of this matter. If we could take account of the needs of the restaurant sector while protecting the minimum wage to the largest degree possible, progress could be made. An absolute disaster has been visited upon restaurant owners as a result of the kind of wages they are required to pay to, for example, those who work on Sundays.

Let us consider this matter sector by sector.

An Leas-Chathaoirleach: The Senator must conclude.

Senator David Norris: Is it not appalling that multibillionaires are buying petrol for their yachts in Monte Carlo at the expense of the weakest in society? This is being done by reducing the hourly rate of the minimum wage by €1 and it is an utter moral scandal. We in this House should stand for decency and principles and for those who are at the lowest point on the scale. From what he said at the end of his very moving contribution, I know that, in his heart, the Minister of State shares that view. I do not care if people read what I have said but I hope to God they do.

Senator Dan Boyle: I think the Senator just provided us with a preview of Thursday’s speech.

Senator David Norris: Senator Boyle has not heard the half of it yet.

Senator Dan Boyle: I look forward to hearing the remainder.

Senator David Norris: The Senator might agree with much of it.

Request to move Adjournment of Seanad under Standing Order 30 - 30th November 2010

Request to move Adjournment of Seanad under Standing Order 30
- 30th November 2010
Senator David Norris: I seek the adjournment of the Seanad under Standing Order 30 to discuss a matter of public importance: the need for Seanad Éireann to discuss the terms of the IMF bailout, the involvement of the Oireachtas in its approval and democratic accountability to the people. A deal has been done over the heads of the people by a discredited Government, which has lost the support of the electorate, with unelected and unaccountable financial interests. I urge the Cathaoirleach to take into account the views of Dr. Krugman, the Nobel prize winning economist, who said: “These debts were incurred, not to pay for public programmes, but by private wheeler-dealers seeking nothing but their own profit.”

An Cathaoirleach: Senator, please.

Senator David Norris: “Yet, ordinary Irish citizens are now bearing the burden of these debts——

An Cathaoirleach: Senator, please.

Senator David Norris: ——or, to be more accurate, they are bearing a burden much larger than the debt because the spending cuts have caused a severe recession.”

An Cathaoirleach: I will adjourn the House if the Senator does not resume his seat.

Senator David Norris: “So, in addition——

An Cathaoirleach: The Senator submitted the detail of the matter he wished to raise and has now——

Senator David Norris: ——to taking on the banks’ debts, the Irish are suffering from plunging incomes and high unemployment.”

An Cathaoirleach: I will adjourn the House if the Senator does not resume his seat. I ask him to respect the Chair. What was submitted to me should have been stated, not the rant in which the Senator engaged.

Senator David Norris: I do not think it was a rant.

An Cathaoirleach: I have given careful consideration to the matter raised by the Senator and do not consider it to be one contemplated by Standing Order 30. I regret, therefore, that I have to rule it out of order. Furthermore, there is an amendment to the Order of Business seeking a debate on the matter today.

Senator David Norris: It clearly demonstrates this House is a total farce. If it is not a matter of national importance, what on Earth is?

An Cathaoirleach: Will the Senator, please, resume his seat?

Senator David Norris: It is outrageous.

An Cathaoirleach: That is the Senator’s opinion.

Senator David Norris: I seek an explanation of why you do not think it is not a matter of national urgency. I appeal to you to rethink or advise the House——

An Cathaoirleach: There is an amendment to the Order of Business.

Senator David Norris: ——why it is not a matter of national urgency.

An Cathaoirleach: I ask the Senator to, please, resume his seat.

A Senator: Senator Norris is only seeking publicity.

Senator David Norris: We are in a really delicate situation.

An Cathaoirleach: Does the Senator want me to adjourn the House because of him?

Senator David Norris: I think the Cathaoirleach should adjourn House in order that he can reconsider his position because this is completely outrageous.

An Cathaoirleach: I call Senator Mullen on the Order of Business.

Senator David Norris: No wonder Senator O’Toole feels he has to withdraw——

An Cathaoirleach: That has nothing to do with this.

Senator David Norris: It is a complete and utter disgrace. It makes a farce of the Oireachtas.

Order of Business - 30th November 2010

Order of Business - 30th November 2010
Order of Business – 30th November 2010
Senator David Norris: I second the amendment moved by Senator Fitzgerald. Will the terms of the memorandum of agreement be laid before both Houses of the Oireachtas in order that the representatives of the people can vote upon them? If not, in what sense can this Parliament be described as a democracy? Are we in the Oireachtas the servants of the people or merely the lackeys of our own morally and financially bankrupt banks and international financial interests?
Is the Leader aware that every single economist and financial commentator, irrespective of whether he is in favour of burning the bondholders, acknowledges now that the process of not burning them is immoral and penalises the Irish people for the mistakes, stupidity and greed of the banks? Is it not the case that this process is immoral, unjust, unethical and unfair? Acknowledging these facts, will the Leader state whether, in these circumstances, a proper financial system or a proper and just civil society can be sustained on a foundation of immorality, unfairness and injustice? Is the Leader aware that the Nobel prize winning economist, Paul Krugman, said, “And you have to wonder what it will take for serious people to realize that punishing the populace for the bankers’ sins is worse than a crime; it’s a mistake.” In light of the fact that the director of the largest single bond investment group, Mr. El-Erian, whose name I put on the record of the House last week, has indicated that the bondholders should be burnt, will the Leader comment on this matter? Will he ensure the House will at least have an opportunity to vote on it?

Senator David Norris - My Blog

Friday, December 17, 2010

Prevention of Corruption (Amendment) Bill 2008 - Committee Stage - 1st December 2010

Order of Business - 1st December 2010

Private Members Motion on the National Recovery Plan 2011-2014 - 30th November 2010

Request to move Adjournment of Seanad under Standing Order 30 - 30th November 2010

Order of Business - 30th November 2010

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