Nov 27, 2014
Re: Legal opinion on the protection afforded a would-be whistleblower on Revenue matters under the protected disclosures legislation.
Clerk to the Committee: We discussed this issue last week. There are two conflicting opinions, but both are simply opinions. We will not get a definitive answer until the issue is tested in the courts. One of the key concerns last week was the scope of the protection. It was decided a risk analysis, covering both the committee and [a whistleblower], would be carried out before any decision was made on bringing [the whistleblower] before the committee. This was the decision taken last week and it still obtains.
We will hear from Revenue next week and we have the letter from the Minister on the information Mr. Ryan gleaned from the Companies Acts, which has all gone to Revenue. Therefore, Revenue should have all the information. It is for the committee to decide if it wants to or not. In looking at the risks, which is what the committee decided to do last week, we will have to see what the Protected Disclosures Act 2014 protects this individual from. This is especially so in the context of the Companies Acts because they have specific penalties in terms of giving information to anyone other than designated people.
This is my understanding of the situation. I have had just a preliminary discussion with those in the Office of the Parliamentary Legal Adviser. When the Parliamentary Legal Adviser was here, we asked if we could forward the dossier to Revenue. We were told we could not. The Chairman then wrote to the Minister about this. It is information gathered under an investigation under section 19. The Act offers very limited scope on where it can be sent. All of this will have to be thrashed out with our legal people. Whether the Protected Disclosures Act 2014 applies and whether it protects the individual will have to be examined again.
Deputy John Deasy: Sometimes I feel like it is groundhog day in here. We made decisions as a committee last week. It seems that when a decision is made, we come back the following week and question that decision and find ourselves on a completely different course. Some of us raised the point that, regardless of how the legislation is written, there will always be different opinions on different laws. We received one opinion. The senior counsel acting on behalf of the whistleblower gave a completely different take on the legislation. There might be two other completely different takes on both those legal opinions if a person tried hard enough to find them.
We should wait and see what the Revenue Commissioners have to say on this issue before spending taxpayers' money on getting a second opinion. Ultimately, it will come down to the interpretation of the Act. I thought we had made a decision last week; we cannot continue coming back and redrawing decisions that have already been made. My understanding of what happened last week was that the legal advisers were to be here today to reiterate their advice on the specific issue of the whistleblower's attendance and the implications for him personally.
We did it that way because the Comptroller and Auditor General made the point that if we had the whistleblower before the committee it might compound things negatively. For that reason, we wanted clarification from our legal advisers and the parliamentary legal advisers. It is like Groundhog Day here. I am experiencing a bit of déjà vu and I do not know why we are turning back on decisions we made last week.
Chairman: We are not turning back on decisions. We are just trying to clarify the position on this legislation by requesting an opinion from the Attorney General.
Deputy John Deasy: My point is that we are never going to get definitive opinions on a piece of legislation that is entirely up to someone's subjective interpretation.
Chairman: We have to try and get the best advice on this because it is the first case. The person in question has made what appears to be a significant disclosure and his position is now in difficulty. There is no harm in asking the Attorney General if we do not want to ask the legal advisers.
Deputy John Deasy: That is fine, but I do not think our job here is to interpret legislation. Our primary role is to deal with entities such as the Revenue Commissioners and question them on this issue and their investigation of it. We should make decisions after the Revenue Commissioners have been at this committee and let members decide then.