Clock is ticking on transposition

Officials fear Ireland may struggle to implement the EU Whistleblowing Directive by the 17 December 2021. Minutes from board meetings at the Department of Public Expenditure and Reform highlight concern for meeting the deadline, stating that “…there are a number of implementation challenges facing transposition including having both the legislation enacted and the institutional arrangements in place by 17 December 2021…”

John Devitt, chief executive of Transparency International Ireland has said that COVID-19 has hampered progress: “The legislative agenda has put everything back nine to twelve months. That is to be expected. We were told they were aiming to have it in place by December 17,”.

A spokesperson for the Department of Public Expenditure said it intended for legislation to been enacted by the deadline, pointing out that there were several significant required amendments to the Protected Disclosures Act (PDA) arising from the Directive, including:

• Expanding of the personal scope of who can make a protected disclosure to include volunteers, unpaid trainees, shareholders and others;
• An obligation on all private sector organisations with 50 or more employees to establish formal channels and procedures for their staff to report wrongdoing
• In proceedings where a person has been penalised for reporting wrongdoing, the burden of proof to be reversed so that it is the employer, not the employee, who must prove that the penalisation did not occur because the employee reported wrongdoing.

Based on the latest state-of-the-art research and international best practice and standards, this policy paper offers recommendations concerning the most important aspects of implementation. This paper was written in the context of Ireland’s transposition of the Directive as a response to Ireland’s Department of Public Expenditure and Reform’s call for submissions, but has relevance for other Member States.

Transparency International Ireland has shared their views with the Department of Public Expenditure and Reform on Submission on the transposition of Directive (EU) 2019/1937 of the European Parliament and Council on the protection of persons who report breaches of Union law (EU Whistleblowing Directive).

Their submission responds to ten questions posed by the Department of Public Expenditure and Reform on considerations for transposing the EU Whistleblowing Directive, and includes a number of additional recommendations to address existing shortcomings in the Protected Disclosures Act 2014 advocated for in previous submissions.

Page 121 of the Programme for Government “Our Shared Future” details the Irish Governments commitment to ensure the effectiveness of new whistleblowing legislation during the transposition of the EU Directive on Whistleblowing. The Programme for Government notes ‘Use the opportunity of the EU consideration of reforms to European-wide whistleblowing provisions to review, update and reform our whistleblowing legislation and ensure that it remains as effective as possible.’

The Department of Public Expenditure and Reform has started a public consultation on the transposition of Directive (EU) 2019/1937 of the European Parliament and the Council of 23 October 2019 on the protection of persons who report breaches of Union law (EU Whistleblowing Directive)

‘The consultation is seeking views on the use of Member State options – i.e. those matters contained within the Directive in respect of which Member States can or must make a choice as regards implementation. Interested parties are asked to bear in mind that, except for the exercise of these options, Member States, including Ireland, are obliged to implement the Directive.’