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On March 31 2015, Transparency International (TI) Ireland published their first report. Speak Up is based on “anonymised data collected from over 500 people” who sought out TI’s helpline “for information, referrals or support since 2011”.

TI are an anti-corruption group who strive for a country “where entrusted power is used in the interest of everyone”. Their role is primarily advisory; they provide help and support to those who report on wrongdoing. They occasionally, when they feel it is beneficial to public interest and the client, liaise with members of the Oireachtas, or the media.

The report notes the importance of the recent story of Sgt Maurice McCabe and former Garda John Wilson in the shaping of the Protected Disclosures Act 2014, during the drafting of which, TI had an advisory role.

In the main, Speak Up aims to outline some weaknesses in the legislation as it stands, and make recommendations based on this.

While the figures suggest that there is a particular level of corruption and wrongdoing in certain areas, in terms of geography and industry, it does not mean that those areas are more or less corrupt than others. TI Ireland’s Chief Executive John Devitt said of the report:

“The report is not a league table of the most and least corrupt organisations or the most honest counties in Ireland. Instead, we’re highlighting the kind of risks that policy makers and senior executives need to be aware of and the measures we think will help address corruption, fraud and other forms of wrongdoing. No organisation or professional sector is immune from malpractice”.1

Run-through of the main figures

In the first fifteen months of operations (up until August 2012), 38% of callers were witness to the wrongdoing (8% of these could be categorised as “whistleblowers”). 37% of callers claimed to be the direct victim of wrongdoing.

By 2014, witnesses accounted for 42% (with whistleblowers up to 15% of this) and victim figures held steady, at 38%.

The majority of these calls were made from Dublin, with 16.6% originating in the capital. The next highest was Cork at 5.66%, nearly two-thirds that of Dublin. TI note that this is congruent with population density in those areas.

Over half the calls were made by men (59%); women accounted for 35%, and 6% did not provide information. Again, TI note that this may be due to the fact that there is a higher presence of men in the areas most likely affected by corruption, such as the economic and professional sectors.

23% of callers were aged 40–54. However, 52% did not state their age.

As of 2012, 13% of calls related to Local Government; 12% related to Social Services including Charities; 11% to Health. In 2015, Local Government is still the most frequently reported at 12%; Health overtook Social Services at 10% and 9%, respectively.

A large majority of callers report a Lack of Transparency (25.7%), with the next most frequently reported issue (Fraud and False Accounting) receiving about half as many calls (13.4%).

Corruption and most reported offences:

“The risk of corruption (or any form of wrongdoing) can be determined by a combination of factors”.

  

“It usually follows that the biggest risk of corruption lies where there are significant financial incentives involved and little chance of being caught”.

However, bribery and other corruption-related offences amount to only 4% of reports while fraud is the second highest category.

Despite prosecution for these practices being low, they are red-flagged often enough to warrant investigation by such bodies as the Local Government Audit Service and the Moriarty Tribunal, and therefore “warrant stringent measures aimed at preventing, detecting and prosecuting any abuse of the public contracting system”.

Allegations regarding misuse of information are on the rise, particularly in relation to the collection of information by private detectives. “Given that the public are compelled to share information with public bodies, the abuse of data for commercial gain could do irreparable damage to public trust in government.

20% of calls to the helpline relate to what TI call “softer” forms of corruption, namely cronyism, nepotism, patronage or clientelism, and favouritism.

Local Government

The place of Local Government at the top of the chart warranted deeper examination by TI. They undertook a focused assessment of the sector.

The largest complaint was Lack of Transparency. Examples of lack of transparency in local government would concern instances of government providing too little information, or failing to publish information.

“Local Government has been the subject or source of allegations of corruption for some time and has been the most complained about sector on the helpline”.

The report makes mention of the Mahon Tribunal, which investigated the corruption of elected officials during the mid-1980s and 1990s. It found evidence of “systemic” corruption where land rezoning was concerned.

The following chart shows the frequency and percentage of specific complaints in the Local Government sector.

Whistleblowers

One main “source of concern among complainants (17%) is from staff who report that they have suffered as a result of blowing the whistle on wrongdoing”.

Whistleblowing is one of the most effective ways of identifying and preventing wrongdoing; more cases of fraud and corruption are exposed by whistleblowing than by the Gardaí or mainstream media, according to the report.2

Not only can whistleblowers identify the issue, but the presence of whistleblowers in an organisation can act as a deterrent to future wrongdoing. Later, whistleblowers can act as witnesses by prosecutors.

“Encouraging workplace whistleblowing therefore allows organisations to address wrongdoing at an early stage, before it leads to loss of reputation, stakeholder investment and profit. It also aids the prosecution of crimes such as fraud, leading to a healthier economy and society as a whole”.

Speak Up undertakes a case study of Sgt Maurice McCabe and former Garda John Wilson, who blew the whistle on widespread abuse of the traffic penalty points scheme. They both faced discrimination in the workplace as a result of their reporting the issue. TI Ireland was there to aid them in that regard, drawing public and official attention to the treatment of whistleblowers. “Around 50% of Speak Up callers categorised as whistleblowers reported that they had suffered ‘whistleblower retaliation’ … 40% of these callers … had been dismissed and 30% reported intimidation and/or harassment”.

TI Investigative Procedure

In  the report, TI outline their investigative procedure and the drawbacks of such, this mainly lies in the fact that “the majority of callers highlighted potential systemic inadequacies”.

       Procedure: Gardaí state that only a victim of fraud can report said fraud. In cases where the “victim” is also the perpetrator, this presents a procedural issue for those wanting to report the wrongdoing.

      State agencies can be reluctant to look into allegations of wrongdoing. When dealing with issues such as alleged cover-ups or government failures, TI suggest a new approach may be warranted.

      There is a gap in resources, what TI call a “regulatory no man’s land”. This exists when there are no clear protocols regarding who should receive complaints, or where there is an oversight by an independent body.

Legislation

In 2010, TI Ireland produced a report entitled An Alternative to Silence. It called for “new, comprehensive legislation”; the publication prompted the Department of Public Expenditure and Reform to invite the group to provide “expert input and advice” on legislation which would “protect workers in all sectors of the economy”. This legislation would become the Protected Disclosures Act 2014.

TI advocated for the inclusion of a “statutory right to seek compensation for damages” not just for whistleblowers but also for third parties (as reflected in s.13 of the Act).

They also argued for a definition of “worker”, as defined in the Act, to include all contractors.

While legislation in other jurisdictions provides only for reports made in “public interest” or “good faith”, TI advised that this was unnecessary, as a few provision in the new legislation “help ensure that only appropriate matters are covered”. These include the provision that breaches of worker’s own contracts cannot be reported; the worker must have genuine and reasonable belief that wrongdoing is occurring; and wrongdoing which impacts the public, such as “damage to the environment and waste of public money”, are the focus of the list of reportable wrongdoings.

A longer time limit to report wrongful dismissal as a result of whistleblowing was also extended in the new legislation. The “interim relief” period was increased from seven days to twenty-one days.

However, even under the new legislation, volunteer whistleblowers are not covered.

The report comments that, even where a wrongful act can be reported under the Act, it may not cover “soft law” mechanisms such as professional codes or ethics guidelines, for example, “mismanagement of conflicts of interest”, “improper staff recruitment”, “breaches of public sector codes”, and “the cover ups of such activities”.

The Act also does not compel employers or regulatory to act on the information they receive.

TI Ireland’s report highlights some shortcomings of the Protected Disclosures Act 2014. They are as follows:

Organisations must “ensure that thorough, timely and independent investigations are undertaken on receipt of protected disclosures”;

They should also be compelled to “inform workers of the outcome of any investigation following the making of a protected disclosure”;

“[A]ppropriate resources should be allocated to ensure that these bodies are able to receive protected disclosures and deal with them effectively”;

“[C]onditions for reporting [externally] should be examined again”;

There should be a reconsideration of the policy of revelation of whistleblower’s identity;

“[U]nder the Act, only employees are able to seek remedies for whistleblower retaliation through the employment law system … Other types of workers must sue for damages through courts … steps should be taken to include all workers” in the reviewed legislation;

Consideration should be paid to the fact that, although whistleblowers are protected by “immunity” under the Act, they are still subject to defamation proceedings. Similarly, while s.15 protects against criminal liability, there is still room for “severe criminal sanctions … for the disclosure of confidential information”;

A hardship fund should be established to aid those whose future employment prospects are compromised, as well as to aid those who have lost wages due to suspension for living and legal costs.

Recommendations

Recommendations made by the report “would not only be cheap to implement, but could help build public confidence in the ability of agencies to spend public resources wisely and serve the public interest effectively”. The six recommendations aim to improve on the strong base of the Protected Disclosures Act 2014, at its next review stage. They are as follows:

“1.       Proactive intelligence sharing among law enforcement agencies and other state bodies needs to improve if corruption and white collar crime are to be properly detected and prosecuted. Either a national anti-corruption agency or an inter-agency task force on corruption and white-collar crime should be established. Such a measure should be introduced as part of a long-term national strategy aimed at preventing corruption and white-collar crime.

2.       Provide agencies such as the Standards in Public Office Commission, the anticipated Planning Regulator and the Health Inspection Quality Authority with powers and resources to gather intelligence and investigate allegations of wrongdoing with or without a prior complaint from a member of the public.

3.       While Local Government auditing standards appear to have improved in recent years, there appears to be little or no promotion by local authorities of their statutory Fraud and Anti-Corruption Alert Plans. Promotion of these and other anti-corruption measures, including training and education, should be introduced as part of an overhaul the local government ethics framework.

4.       Increase education and awareness-raising on corruption and anti-corruption across all sectors. More emphasis should be placed on education and awareness-raising on the risks and costs associated with corruption and measures aimed at stopping corruption across Irish society. This should include sustained public-awareness raising initiatives involving civil society organisations; ongoing ethics training and advice for public officials including elected representatives; and continuous research on the efficacy of existing anti-corruption measures.

5.       Any changes to national ethics legislation should introduce a ban on any public official receiving gifts or entertainment during the course of their employment. Any new requirements to make declarations of interest should also cover any liabilities, as well as income and assets of public officials and their families.

6.       The Protected Disclosures Act will not protect whistleblowers on its own. TI Ireland will launch a new initiative in 2015 titled ‘Integrity at Work’ that will bring employers, trade unions and regulators together to subscribe to standards by which workers will be treated when speaking up about wrongdoing. The initiative will allow workers to approach the Speak Up helpline in seeking legal advice and for TI Ireland to monitor employer or regulator compliance with the Integrity at Work standard. The goal is to move beyond the law and ensure that employers and workers are able to make the most of the new legislation”.3