Protected Disclosures (Amendment) Act 2022

Protected Disclosures (Amendment) Act 2022 Skip to content Disclaimer Feedback Helpdesk Gaeilge Léim go dtí an t-ábhar Séanadh Aiseolas Deasc chabhrach English Gaeilge English Produced by the Office of the Attorney General Táirgthe ag Oifig an Ard-Aighne Home Legislation Acts of the Oireachtas Statutory Instruments Pre-1922 Legislation Constitution External Resources Bills (Houses of the Oireachtas) Iris Oifigiúil / Official Gazette Revised Acts (LRC) Classified List of Legislation (LRC) Translations (acts.ie) Translations (Houses of the Oireachtas) Government Publications for Sale EU Law (EUR-Lex) FAQ Disclaimer Feedback Helpdesk Search Baile Reachtaíocht Achtanna an Oireachtais Ionstraimí Reachtúla Reachtaíocht Réamh-1922 Bunreacht Acmhainní Seachtracha Billí (Tithe an Oireachtais) Iris Oifigiúil Achtanna Athbhreithnithe (CAD) (An Coimisiún um Athchóiriú an Dlí) Liosta Rangaithe Reachtaíochta Aistriúcháin (achtanna.ie) Aistriúcháin (Tithe an Oireachtais) Foilseacháin Rialtais ar Díol Dlí AE (EUR-Lex) CCanna (Ceisteanna Coitianta) Séanadh Aiseolas Deasc chabhrach Cuardach TitleTeideal Year(s) or rangeBliain nó blianta nó raon TypeCineál All Legislation Acts Statutory Instruments Advanced SearchCuardach Casta HomeBaile ActsAchtanna 2022 Protected Disclosures (Amendment) Act 2022 Protected Disclosures (Amendment) Act 2022 Permanent Page URL View by SectionAmharc de réir Ailt View Full ActAmharc ar an Acht Iomlán Bill History Stair Bille Commencement, Amendments, SIs made under the Act Tosach Feidhme, Leasuithe, IRí arna ndéanamh faoin Acht Open PDFOscail PDF Print Full ActPriontáil an tAcht Iomlán Number 27 of 2022 PROTECTED DISCLOSURES (AMENDMENT) ACT 2022 CONTENTS PART 1 Preliminary and General Section 1. Short title and commencement 2. Definition 3. Repeals PART 2 Amendments to Principal Act Chapter 1 Application of Principal Act 4. Amendment of section 3 of Principal Act 5. Orders and regulations 6. Amendment of section 5 of Principal Act 7. Anonymous reports Chapter 2 Internal and external reporting channels and follow-up 8. Amendment of section 6 of Principal Act 9. Internal reporting channels and procedures 10. Amendment of section 7 of Principal Act 11. External reporting channels and procedures 12. Amendment of section 8 of Principal Act 13. Amendment of section 10 of Principal Act Chapter 3 Office of the Protected Disclosures Commissioner 14. Office of the Protected Disclosures Commissioner 15. Provisions relating to Protected Disclosures Commissioner Chapter 4 Provisions applicable to internal and external reporting 16. Duty of confidentiality 17. Protection of identity of persons concerned 18. Data protection 19. Record keeping 20. Amendment of Freedom of Information Act 2014 Chapter 5 Protection measures 21. Amendment of section 12 of Principal Act 22. Amendment of section 13 of Principal Act 23. Tort action for damage caused by report of false information 24. Offences and penalties 25. Amendment of Schedule 2 to Principal Act Chapter 6 Miscellaneous and supplementary 26. Provision for further review 27. Amendment of section 17 of Principal Act 28. Amendment of section 21 of Principal Act 29. Support measures 30. Information to Minister and reports 31. Interaction of Directive with other enactments 32. Transitional provisions 33. Annex to Directive 34. Amendment of Ombudsman Act 1980 35. Amendment of Workplace Relations Act 2015 SCHEDULE 1 Schedule 5 to Principal Act SCHEDULE 2 Annex to Directive SCHEDULE 3 Schedule 7 to Principal Act Acts Referred to Comptroller and Auditor General Acts 1866 to 1998 Data Protection Act 2018 (No. 7) Data Protection Acts 1988 to 2018 European Communities Act 1972 (No. 27) Freedom of Information Act 2014 (No. 30) Ombudsman Act 1980 (No. 26) Protected Disclosures Act 2014 (No. 14) Unfair Dismissals Act 1977 (No. 10) Workplace Relations Act 2015 (No. 16) Number 27 of 2022 PROTECTED DISCLOSURES (AMENDMENT) ACT 2022 An Act to give effect to Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 20191 on the protection of persons who report breaches of Union law and for that purpose to amend and extend the Protected Disclosures Act 2014 ; to provide for the establishment of the Office of the Protected Disclosures Commissioner and to confer functions on it; to amend the Freedom of Information Act 2014 , the Ombudsman Act 1980 and the Workplace Relations Act 2015 ; and to provide for related matters. [21st July, 2022] Be it enacted by the Oireachtas as follows: PART 1 Preliminary and General Short title and commencement 1. (1) This Act may be cited as the Protected Disclosures (Amendment) Act 2022. (2) This Act shall come into operation on such day or days as the Minister for Public Expenditure and Reform may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions. Definition 2. In this Act, “Principal Act” means the Protected Disclosures Act 2014 . Repeals 3. The following provisions of the Principal Act are repealed: (a) section 5(7A); (b) section 7(3); (c) section 12(9) and (10); (d) paragraph 4 of Schedule 3. PART 2 Amendments to Principal Act Chapter 1 Application of Principal Act Amendment of section 3 of Principal Act 4. Section 3 of the Principal Act is amended— (a) in subsection (1)— (i) in the definition of “employer”— (I) by the deletion of “or” before paragraph (d), (II) in paragraph (d), by the substitution of “training,” for “training;”, and (III) by the insertion of the following paragraphs after paragraph (d): “(e) in the case of an individual who is a worker by virtue of paragraph (e) of the definition of that term, the undertaking of which the worker is or was a shareholder, (f) in the case of an individual who is a worker by virtue of paragraph (f) of the definition of that term, the undertaking, the administrative, management or supervisory body of which the worker is or was a member, (g) in the case of an individual who is a worker by virtue of paragraph (g) of the definition of that term and who is a volunteer, the person for whom the individual is or was a volunteer, (h) in the case of an individual who is a worker by virtue of paragraph (h) of the definition of that term, the person by whom or on whose behalf the recruitment process concerned is or was carried out, or (i) in the case of an individual who is a worker by virtue of paragraph (i) of the definition of that term, the person by whom or on whose behalf the pre-contractual negotiations are or were carried out;”, (ii) by the substitution of the following definition for the definition of “penalisation”: “‘penalisation’ means any direct or indirect act or omission which occurs in a work-related context, is prompted by the making of a report and causes or may cause unjustified detriment to a worker, and, in particular, includes— (a) suspension, lay-off or dismissal, (b) demotion, loss of opportunity for promotion or withholding of promotion, (c) transfer of duties, change of location of place of work, reduction in wages or change in working hours, (d) the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty), (e) coercion, intimidation, harassment or ostracism, (f) discrimination, disadvantage or unfair treatment, (g) injury, damage or loss, (h) threat of reprisal, (i) withholding of training, (j) a negative performance assessment or employment reference, (k) failure to convert a temporary employment contract into a permanent one, where the worker had a legitimate expectation that he or she would be offered permanent employment, (l) failure to renew or early termination of a temporary employment contract, (m) harm, including to the worker’s reputation, particularly in social media, or financial loss, including loss of business and loss of income, (n) blacklisting on the basis of a sector or industry-wide informal or formal agreement, which may entail that the person will not, in the future, find employment in the sector or industry, (o) early termination or cancellation of a contract for goods or services, (p) cancellation of a licence or permit, and (q) psychiatric or medical referrals;”, (iii) by the substitution of the following definition for the definition of “worker”: “‘worker’ means an individual working in the private or public sector who acquired information on relevant wrongdoings in a work-related context and includes— (a) an individual who is or was an employee, (b) an individual who entered into or works or worked under any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertook to do or perform (whether personally or otherwise) any work or services for another party to the contract for the purposes of that party’s business, (c) an individual who works or worked for a person in circumstances in which— (i) the individual is introduced or supplied to do the work by a third person, and (ii) the terms on which the individual is engaged to do the work are or were in practice substantially determined not by the individual but by the person for whom the individual works or worked, by the third person or by both of them, (d) an individual who is or was provided with work experience pursuant to a training course or programme or with training for employment (or with both) otherwise than under a contract of employment, (e) an individual who is or was a shareholder of an undertaking, (f) an individual who is or was a member of the administrative, management or supervisory body of an undertaking, including non-executive members, (g) an individual who is or was a volunteer, (h) an individual who acquires information on a relevant wrongdoing during a recruitment process, (i) an individual who acquires information on a relevant wrongdoing during pre-contractual negotiations (other than a recruitment process referred to in paragraph (h)), and (j) an individual who is deemed to be a worker by virtue of subsection (2)(b), and any reference to a worker being employed or to employment shall be construed accordingly.”, and (iv) by the insertion of the following definitions: “‘Annex’ means the Annex to the Directive, the text of which for ease of reference is set out in Schedule 6; ‘breach’ means an act or omission— (a) that is unlawful and to which one or more of the following subparagraphs applies: (i) the act or omission falls within the scope of the Union acts set out in the Annex that concern the following areas: (I) public procurement; (II) financial services, products and markets, and prevention of money laundering and terrorist financing; (III) product safety and compliance; (IV) transport safety; (V) protection of the environment; (VI) radiation protection and nuclear safety; (VII) food and feed safety and animal health and welfare; (VIII) public health; (IX) consumer protection; (X) protection of privacy and personal data, and security of network and information systems; (ii) the act or omission affects the financial interests of the Union as referred to in Article 325 of the Treaty on the Functioning of the European Union and as further specified in relevant Union measures; or (iii) the act or omission relates to the internal market, as referred to in Article 26(2) of the Treaty on the Functioning of the European Union, including breaches of Union competition and State aid rules, as well as breaches relating to the internal market in relation to acts which breach the rules of corporate tax or to arrangements the purpose of which is to obtain a tax advantage that defeats the object or purpose of the applicable corporate tax law; or (b) that defeats the object or purpose of the rules in the Union acts and areas referred to in paragraph (a); ‘Commissioner’ means the person who, for the time being, holds the office of Protected Disclosures Commissioner established by section 10A; ‘data protection law’ means— (a) the Data Protection Acts 1988 to 2018, (b) the General Data Protection Regulation, (c) all law of the State giving further effect to the General Data Protection Regulation, (d) Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 20162 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA, and (e) all law of the State giving effect or further effect to Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 referred to in paragraph (d); ‘Directive’ means Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 20193 on the protection of persons who report breaches of Union law, as amended by Regulation (EU) 2020/1503 of the European Parliament and of the Council of 7 October 20204 ; ‘enactment’ means— (a) an Act of the Oireachtas, (b) a statute that was in force in Saorstát Éireann immediately before the date of coming into operation of the Constitution and that continued in force by virtue of Article 50 of the Constitution, or (c) an instrument made under an Act of the Oireachtas or a statute referred to in paragraph (b); ‘European Union’ has the same meaning as it has in the European Communities Act 1972 ; ‘facilitator’ means an individual who assists, in a confidential manner, a reporting person in the reporting process in a work-related context; ‘feedback’ means the provision to a reporting person of information on the action envisaged or taken as follow-up and on the reasons for such follow-up; ‘follow-up’ means any action taken by— (a) the recipient of a report made in the manner specified in section 6 or 7, or (b) a person to whom a report is transmitted under section 7A, 8, 10C or 10D, to assess the accuracy of the information contained in the report and, where relevant, to address the relevant wrongdoing reported, including, but not limited to, actions such as an internal inquiry, an investigation, prosecution, an action for recovery of funds or the closure of the procedure; ‘General Data Protection Regulation’ means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 20165 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC; ‘Ombudsman’ means the person who holds the office of Ombudsman in accordance with the Ombudsman Act 1980 ; ‘person concerned’ means a natural or legal person who is referred to in a report as a person to whom the relevant wrongdoing is attributed or with whom that person is associated; ‘prescribed’ means prescribed by order or regulations made by the Minister under this Act; ‘prescribed person’ means a person prescribed by order under section 7; ‘report’ or ‘to report’ means the oral or written communication of information on relevant wrongdoings; ‘reporting person’ means a worker who makes a report in accordance with this Act; ‘work-related context’ means current or past work activities in the public or private sector through which, irrespective of the nature of those activities, persons acquire information concerning a relevant wrongdoing and within which those persons could suffer penalisation if they reported such information;”, and (b) by the insertion of the following subsection after subsection (2): “(3) A word or expression that is used in this Act and which is also used in the Directive has, unless the contrary intention appears, the same meaning in this Act as it has in the Directive.”. Orders and regulations 5. The following section is inserted after section 4 but in Part 1 of the Principal Act: “4A. (1) The Minister may by regulations provide for any matter referred to in this Act as prescribed or to be prescribed. (2) Without prejudice to any provision of this Act, regulations made under this Act may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations. (3) Every order made under section 6(6) or 7(2) and regulation made under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order or regulation is passed by either such House within the next 21 days on which that House sits after the order or regulation is laid before it, the order or regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.”. Amendment of section 5 of Principal Act 6. Section 5 of the Principal Act is amended— (a) in subsection (1), by the substitution of “subsection (6) ” for “subsections (6) and (7A)”, (b) in subsection (2)(b), by the substitution of “in a work-related context” for “in connection with the worker’s employment”, (c) in subsection (3)— (i) in paragraph (g), by the substitution of “mismanagement,” for “mismanagement, or”, (ii) by the substitution of the following paragraph for paragraph (h): “(h) that a breach has occurred, is occurring or is likely to occur, or”, and (iii) by the insertion of the following paragraph after paragraph (h): “(i) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed or an attempt has been, is being or is likely to be made to conceal or destroy such information.”, (d) by the insertion of the following subsection after subsection (5): “(5A) A matter concerning interpersonal grievances exclusively affecting a reporting person, namely, grievances about interpersonal conflicts between the reporting person and another worker, or a matter concerning a complaint by a reporting person to, or about, his or her employer which concerns the worker exclusively, shall not be a relevant wrongdoing for the purposes of this Act and may be dealt with through any agreed procedures applicable to such grievances or complaint to which the reporting person has access or such other procedures, provided in accordance with any rule of law or enactment (other than this Act), to which the reporting person has access.”, and (e) in subsection (7), by the substitution of “The motivation” for “Subject to subsection (7A), the motivation”. Anonymous reports 7. The following section is inserted after section 5 of the Principal Act: “5A. (1) Without prejudice to the provisions of any other enactment relating to anonymous reporting of wrongdoing, nothing in this Act shall oblige any person to accept and follow-up on anonymous reports made in the manner specified in section 6 but a person may, if he or she considers it appropriate to do so, follow-up on a matter the subject of an anonymous report. (2) A worker who makes a disclosure in the manner specified under section 6, 7, 8, 9 or 10 by way of an anonymous report and who is subsequently identified and penalised for having made the disclosure shall be treated for the purposes of this Act as having made a protected disclosure and shall be entitled to the same protections under Part 3 as a worker who has been penalised for having made a protected disclosure.”. Chapter 2 Internal and external reporting channels and follow-up Amendment of section 6 of Principal Act 8. Section 6 of the Principal Act is amended by the insertion of the following subsections after subsection (2): “(3) Subject to subsections (5) to (8), for the purposes of enabling the making of reports, an employer with 50 or more employees shall, in accordance with this section and section 6A, establish, maintain and operate internal reporting channels and procedures for the making of such reports and for follow-up (in this Act referred to as ‘internal reporting channels and procedures’). (4) The threshold of 50 employees provided for by subsection (3) shall not apply where the employer— (a) is a public body, or (b) falls within the scope of the Union acts referred to in Parts I.B and II of the Annex. (5) Subsection (3) shall not come into effect for employers, other than public bodies and entities who fall within the scope of the Union acts referred to in Parts I.B and II of the Annex, with not less than 50 but not more than 249 employees until 17 December 2023. (6) (a) Following the carrying out, by or on behalf of the Minister, of an appropriate risk assessment taking into account the activities of the class or classes of employers concerned and the ensuing level of risk for, in particular, the environment and public health, the Minister may, by order, provide that subsection (3) shall apply to such class or classes of employers with less than 50 employees as the Minister may specify in such order. (b) Before making an order under this subsection, the Minister shall publish or cause to be published on a website maintained by or on behalf of the Minister and which is accessible to the public— (i) a copy of the proposed order, (ii) a copy of the risk assessment referred to in paragraph (a), and (iii) a notice— (I) stating that the Minister intends to make the proposed order, (II) stating where, on the website concerned, the documents referred to in subparagraphs (i) and (ii) can be accessed, (III) inviting the making, during the period specified by the Minister for this purpose, of submissions to the Minister in relation to the proposed order, and (IV) stating the date of publication of the notice, and having considered any submissions made in response to the invitation referred to in clause (III) may make the order, with or without amendment. (c) Submissions made under paragraph (b)(iii)(III) shall be published or caused to be published by the Minister on a website maintained by or on behalf of the Minister and which is accessible to the public. (d) The Minister shall notify the Commission of the European Union of the making, amendment or revocation of an order under this subsection, and the notification shall include the reasons for making, amending or revoking the order and the criteria used in carrying out the risk assessment referred to in paragraph (a). (7) (a) The Minister may by regulations provide that the internal reporting channels and procedures required to be established, maintained and operated by employers to whom subsection (3) applies shall also enable the making of reports by other persons or such class or classes of other persons, as the Minister may prescribe, referred to in points (b), (c) and (d) of Article 4.1 and Article 4.2 of the Directive, who are in contact with the entity concerned in the context of their work-related activities. (b) Where regulations are made under paragraph (a), this section shall apply, with any necessary modifications, to such other persons or class or classes of such other persons referred to in paragraph (a) as may be so prescribed, as if a reference in this section to employees were a reference to such other persons or class or classes of such other persons so prescribed. (8) The Minister may, for the purpose of the calculation of the number of employees an employer has for the purposes of the application of this section, by regulation, provide for the methods to be applied by such class or classes of employers and in respect of such class or classes of employees as may be prescribed. (9) Internal reporting channels and procedures may be— (a) operated internally by a person or department designated for that purpose by an employer, or (b) provided externally by a third party authorised in that behalf by an employer. (10) (a) Subject to paragraph (b), employers with less than 250 employees (including employers in respect of whom an order has been made under subsection (6)) may share resources as regards the receipt of reports under this section and any investigation to be carried out as part of the process of follow-up. (b) This subsection shall apply without prejudice to the obligations imposed on an employer to— (i) maintain confidentiality in accordance with section 16, (ii) diligently follow-up in accordance with section 6A(1)(d), and (iii) provide feedback in accordance with section 6A(1)(e) and (f). (11) Subject to subsection (12), section 6A shall apply to a report made to an employer. (12) Where— (a) a worker, who is or was an employee of a public body, makes a disclosure of relevant information to the public body, in the manner specified in this section, before the commencement of section 8 of the Protected Disclosures (Amendment) Act 2022, and (b) the public body— (i) has established procedures under section 21 (being that section as it stood before the commencement of section 28 of the Protected Disclosures (Amendment) Act 2022), and (ii) has not completed its consideration of such disclosure in accordance with those procedures before the commencement of the said section 8 , then, where the worker so requests in writing, the public body shall, no later than 3 months after the date of such request, provide information to the worker on any actions taken or to be taken by that public body in relation to the relevant information concerned.”. Internal reporting channels and procedures 9. The following section is inserted after section 6 of the Principal Act: “6A. (1) Internal reporting channels and procedures shall include the following: (a) channels for receiving reports that shall be designed, established and operated in a secure manner that ensures that the confidentiality of the identity of the reporting person and any third party mentioned in the report is protected and prevents access thereto by persons other than those referred to in section 6(9) and any designated person; (b) acknowledgement, in writing, to the reporting person of receipt of the report not more than 7 days after receipt of it; (c) the designation of an impartial person or persons who are competent to follow-up on reports (who may be the same person or persons as the recipient of the report) (in this section referred to as a ‘designated person’) who will maintain communication with the reporting person and, where necessary, request further information from, and provide feedback to, that reporting person; (d) diligent follow-up by the designated person, which shall include at least the following: (i) the carrying out of an initial assessment, including seeking further information from the reporting person if required, as to whether there is prima facie evidence that a relevant wrongdoing may have occurred; (ii) if, having carried out an initial assessment, the designated person decides that there is no prima facie evidence that a relevant wrongdoing may have occurred— (I) closure of the procedure or referral of the matter to such other agreed procedures applicable to grievances to which a reporting person has access or such other procedures, provided in accordance with a rule of law or enactment (other than this Act), to which a reporting person has access, and (II) notification of the reporting person, in writing, as soon as practicable, of the decision and the reasons for it; (iii) if, having carried out an initial assessment, the designated person decides that there is prima facie evidence that a relevant wrongdoing may have occurred, the taking of appropriate action to address the relevant wrongdoing, having regard to the nature and seriousness of the matter concerned; (e) the provision of feedback to the reporting person within a reasonable period, being not more than 3 months from the date the acknowledgement of receipt of the report was sent to the reporting person under paragraph (b) or, if no such acknowledgement was sent, not more than 3 months from the date of expiry of the period of 7 days after the report was made; (f) the provision to the reporting person, where he or she so requests in writing, of further feedback at intervals of 3 months until such time as the procedure relating to the report concerned is closed, the first such period of 3 months commencing on the date on which feedback is provided to the reporting person under paragraph (e); (g) the provision to workers of clear and easily accessible information, in such form and manner as the employer considers appropriate for the purposes of this paragraph, regarding— (i) the procedures applicable to the making of reports using the internal reporting channels and procedures, (ii) where the employer accepts anonymous reports, the conditions pursuant to which those reports may be accepted and follow-up undertaken, and (iii) the procedures for making a report to a prescribed person or the Commissioner, as the case may be, in the manner specified in section 7, and, where relevant, to institutions, bodies, offices or agencies of the European Union. (2) Internal reporting channels and procedures shall enable reports to be made— (a) in writing or orally, or both, and (b) in the case of a report made orally, by telephone or through other voice messaging systems and, upon request by the reporting person, by means of a physical meeting with the employer or a designated person, as the case may be, within a reasonable period from the making of the request. (3) Where, subject to the conditions referred to in subsection (1)(g)(ii), an employer accepts an anonymous report, unless prohibited by any other enactment, this section shall apply, with any necessary modifications, to such a report as if references in this section to a report were a reference to an anonymous report. (4) Subject to this section, the internal reporting channels and procedures shall be accessible by workers of the entity concerned and of its subsidiaries and affiliates (in this subsection referred to as ‘the group’), where applicable, and, to any extent possible, by any of the group’s agents and suppliers and by any persons who acquire information on a relevant wrongdoing though their work-related activities with the entity and the group. (5) This section shall apply, with any necessary modifications, to a third party referred to in paragraph (b) of section 6(9) to the extent to which such third party is authorised as referred to in that paragraph as it applies to an employer who establishes internal reporting channels and procedures.”. Amendment of section 7 of Principal Act 10. Section 7 of the Principal Act is amended— (a) in subsection (1)— (i) in paragraph (a), by the insertion of “or the Commissioner” after “subsection (2)(a)”, and (ii) in paragraph (b)(i), by the substitution of “in the case of a disclosure made to a person prescribed under subsection (2)(a), that the relevant wrongdoing” for “that the relevant wrongdoing”, and (b) by the insertion of the following subsections after subsection (2): “(2A) For the purposes of enabling the making of reports by workers, prescribed persons and the Commissioner shall establish, maintain and operate independent and autonomous external reporting channels and procedures for receiving and handling such reports and for follow-up (in this Act referred to as ‘external reporting channels and procedures’). (2B) Section 7A shall apply to a report made to a prescribed person. (2C) Section 10B shall apply to a report made to the Commissioner.”. External reporting channels and procedures 11. The following section is inserted after section 7 of the Principal Act: “7A. (1) External reporting channels and procedures shall include the following: (a) acknowledgement, in writing, to the reporting person of receipt of the report not more than 7 days after receipt of it, save where the reporting person explicitly requested otherwise or the prescribed person reasonably believes that acknowledging receipt of the report would jeopardise the protection of the identity of the reporting person; (b) diligent follow-up by the designated person, which shall include at least the following: (i) the carrying out of an initial assessment, including seeking further information from the reporting person if required, as to whether— (I) there is prima facie evidence that a relevant wrongdoing may have occurred, and (II) the report concerns matters that fall within the scope of the matters for which the prescribed person has responsibility by virtue of the functions conferred on the prescribed person by or under this or any other enactment; (ii) if, having carried out an initial assessment, the prescribed person decides that there is no prima facie evidence that a relevant wrongdoing may have occurred— (I) closure of the procedure, and (II) notification of the reporting person, in writing, as soon as practicable of the decision and the reasons for it; (iii) if, having carried out an initial assessment, the prescribed person decides that there is prima facie evidence that a relevant wrongdoing may have occurred, but that the relevant wrongdoing is clearly minor and does not require further follow-up— (I) closure of the procedure, and (II) notification of the reporting person, in writing, as soon as practicable of the decision and the reasons for it; (iv) having carried out an initial assessment— (I) closure of the procedure in the case of repetitive reports where the prescribed person decides that the report does not contain any meaningful new information about a relevant wrongdoing compared to a previous report (including any report made before the commencement of section 11 of the Protected Disclosures (Amendment) Act 2022 (in this clause referred to as a ‘past report’)) made or transmitted to the prescribed person or to any other person in respect of which the relevant procedures (including any procedures that applied at the time any past report was made) were concluded, unless new legal or factual circumstances justify a different follow-up, and (II) notification of the reporting person, in writing, as soon as practicable, of the decision referred to in clause (I) and the reasons for it; (v) if, having carried out an initial assessment, the prescribed person decides that there is prima facie evidence that a relevant wrongdoing may have occurred and the report concerns matters that fall within the scope of the matters referred to in subparagraph (i)(II), the taking of appropriate action, in accordance with the functions conferred on the prescribed person by or under this or any other enactment, to address the relevant wrongdoing, having regard to the nature and seriousness of the matter concerned; (vi) having carried out an initial assessment, if the prescribed person decides that the disclosure concerns matters that are not within the scope of the matters referred to in subparagraph (i)(II)— (I) transmission of the report to— (A) such other prescribed person or persons as the prescribed person considers appropriate, or (B) where there is no such other prescribed person as referred to in subclause (A), the Commissioner, and (II) notification of the reporting person, in writing, as soon as practicable of the decision and the reasons for it; (c) where the procedure has not otherwise been closed under subparagraph (ii), (iii) or (iv) of paragraph (b) and the report has not been transmitted to any other prescribed person or persons or the Commissioner, as the case may be, under subparagraph (vi)(I) of paragraph (b), the provision of feedback to the reporting person within a reasonable period, being not more than— (i) where acknowledgement of receipt of the report was sent to the reporting person under paragraph (a)— (I) 3 months from the date of such acknowledgement, or (II) 6 months from the date of the acknowledgement in duly justified cases due to the particular nature and complexity of the report, or (ii) where no acknowledgement of receipt of the report was sent to the reporting person under paragraph (a)— (I) 3 months from the date of expiry of the period of 7 days after the report was made, or (II) 6 months from the date of expiry of the period of 7 days after the report was made in duly justified cases due to the particular nature and complexity of the report; (d) where feedback is not or is not likely to be provided to the reporting person within the period of 3 months referred to in paragraph (c)(i)(I), notification of the reporting person, in writing, as soon as practicable of the extension of that period under paragraph (c)(i)(II); (e) the provision to the reporting person, where he or she so requests in writing, of further feedback at intervals of 3 months until such time as the procedure relating to the report concerned is closed, the first such period of 3 months commencing on the date on which feedback is provided to the reporting person under paragraph (c); (f) save as provided for by or under any enactment or rule of law and subject to subsection (4), communication, in writing, to the reporting person of the final outcome of any investigation triggered by the report; (g) where a report concerns a breach, transmission as soon as practicable of the information contained in the report to relevant competent institutions, bodies, offices or agencies of the Union, as appropriate, for further investigation, where provided for under Union law or the law of the State. (2) A reporting person shall, in respect of the report concerned and any follow-up procedures, without prejudice to his or her rights under this Act and to such extent as may reasonably and lawfully be required for the purposes of this Act, cooperate with a prescribed person in relation to the performance by the prescribed person of the functions conferred on that prescribed person by or under this Act. (3) Without prejudice to the period referred to in subparagraph (i)(I) or (II) or subparagraph (ii)(I) or (II) of paragraph (c), as applicable, of subsection (1), if necessary and appropriate, having due regard to the number of reports received by a prescribed person, the prescribed person may deal with reports of a serious relevant wrongdoing as a matter of priority. (4) Subsection (1)(f) shall operate without prejudice to any legal obligations applying to the prescribed person concerned as regards confidentiality, legal professional privilege, privacy and data protection. (5) External reporting channels and procedures shall be considered to be independent and autonomous if they meet the following criteria: (a) they are designed, established and operated in a manner that ensures the completeness, integrity and confidentiality of the information concerned and prevents access thereto by persons other than designated persons and any other members of staff duly authorised in that behalf; (b) they enable the durable storage of information in accordance with section 16C to allow further investigations to be carried out. (6) External reporting channels and procedures shall enable reports to be made to a prescribed person— (a) in writing and orally, and (b) in the case of a report made orally, by telephone or through other voice messaging systems and, upon request by the reporting person, by means of a physical meeting with the prescribed person or a designated person, as the case may be, within a reasonable period from the making of the request. (7) Each prescribed person shall designate one or more than one member of staff (in this section referred to as a ‘designated person’) to be responsible for handling reports and, in particular, for— (a) providing any person with information on the procedures for making a report in the manner specified in section 7, (b) receiving and follow-up on reports made to the prescribed person, and (c) maintaining communication with the reporting person for the purpose of providing feedback and, where necessary, requesting further information from that reporting person. (8) Each prescribed person shall ensure that where a report is received by the prescribed person through channels and procedures other than those referred to in subsections (5) and (6) or is received by a member of staff other than a designated person— (a) it shall be forwarded promptly and without modification to the designated person, and (b) any information that might identify the reporting person or the person concerned shall not be disclosed by such member of staff. (9) Each prescribed person shall ensure that designated persons receive specific training for the purposes of handling reports. (10) Each prescribed person shall publish on a website maintained by or on behalf of such prescribed person in a separate, easily identifiable and accessible section at least the following information: (a) the conditions for qualifying for protection under this Act; (b) the contact details of the prescribed person to whom a report may be made in the manner specified in section 7, in particular the electronic and postal addresses and the telephone numbers for making the report, indicating whether the telephone conversations are recorded; (c) the procedures applicable to the making of reports using the external reporting channels and procedures, including the manner in which the prescribed person may request the reporting person to clarify the information reported or to provide additional information, the period for providing feedback (including further feedback) and the type and content of such feedback; (d) the confidentiality regime applicable to reports and, in particular, the information in relation to the processing of personal data in accordance with section 16B and under applicable data protection law; (e) the nature of the follow-up to be given in relation to reports; (f) the remedies and procedures for protection against penalisation and the availability of advice pursuant to Article 20.1(a) of the Directive for persons contemplating making a report; (g) a statement clearly explaining the conditions under which persons making a report using the external channels and procedures are protected from incurring liability for a breach of confidentiality pursuant to sections 14 and 15; (h) contact details for the support services provided under section 21A; (i) such other information as the Minister may specify in guidance under section 21. (11) (a) Each prescribed person shall review the external channels and procedures regularly but at least once within 3 years after the date of first publication of information under subsection (10) and at least once in every period of 3 years after the first such review. (b) In reviewing the external channels and procedures, the prescribed person shall take account of their operation and may consult with other prescribed persons in relation to the operation of external channels and procedures established, maintained and operated by them and adapt the external channels and procedures accordingly as the prescribed person considers necessary and appropriate. (12) Where a report made to a prescribed person is an anonymous report, unless prohibited by or under any other enactment, this section shall apply, with any necessary modifications, to such a report as if references in this section to a report were a reference to an anonymous report. (13) The provisions of this section (other than paragraphs (b)(vi) and (c) of subsection (1) and subsections (10) and (11)) shall apply, with any necessary modifications, to reports transmitted to a prescribed person under subsection (1)(b)(vi)(I) as those provisions apply to a report made to a prescribed person. (14) Where a report is transmitted to a prescribed person under subsection (1)(b)(vi)(I), feedback shall be provided to the reporting person not later than— (a) where acknowledgement of receipt of the report was sent to the reporting person under subsection (1)(a) (in this subsection referred to as the ‘original acknowledgement’)— (i) 3 months from the date of the original acknowledgement, or (ii) 6 months from the date of the original acknowledgement in duly justified cases due to the particular nature and complexity of the report, or (b) where there was no original acknowledgement— (i) 3 months from the date of expiry of the period of 7 days after the report was made, or (ii) 6 months from the date of expiry of the period of 7 days after the report was made in duly justified cases due to the particular nature and complexity of the report.”. Amendment of section 8 of Principal Act 12. The following section is substituted for section 8 of the Principal Act: “8. (1) A disclosure is made in the manner specified in this section where the worker complies with the requirements specified in subsection (2) for making a report. (2) A worker may make a report to a relevant Minister if— (a) the worker is or was employed in a public body, and (b) one or more than one of the following conditions are met: (i) the worker has previously made a report of substantially the same information in the manner specified in section 6, 7 or 8, as the case may be, but no feedback has been provided to the worker in response to the report within the period specified in section 6A(1)(e), 7A(1)(c), 10C(7)(b), 10D(7)(b) or 10E(1)(c), as the case may be, or, where feedback has been provided, the worker reasonably believes that there has been no follow-up or that there has been inadequate follow-up; (ii) the worker reasonably believes the head of the public body concerned is complicit in the relevant wrongdoing concerned; (iii) the worker reasonably believes that the relevant wrongdoing concerned may constitute an imminent or manifest danger to the public interest, such as where there is an emergency situation or a risk of irreversible damage. (3) (a) The relevant Minister shall, without having considered the report or the information or any allegation contained therein, as soon as practicable but in any case not later than 10 days after receipt of a report, transmit the report to the Commissioner. (b) Section 10D shall apply to a report transmitted to the Commissioner under paragraph (a). (4) Each Minister of the Government shall make, or cause to be made, available clear and easily accessible information, in such form and manner as the Minister of the Government considers appropriate, including on a website maintained by or on behalf of the Minister of the Government concerned, regarding the making of reports in the manner specified in this section to the Minister of the Government or any Minister of State to whom any function vested in that Minister of the Government is delegated. (5) In this section— ‘head of the public body concerned’ means— (a) in relation to a Department of State, the Secretary General of the Department concerned, (b) in relation to the Office of the Director of Public Prosecutions, the Director of Public Prosecutions, (c) in relation to the Office of the Ombudsman, the Ombudsman, (d) in relation to the Office of the Information Commissioner, the Information Commissioner, (e) in relation to the Office of the Financial Services and Pensions Ombudsman, the Financial Services and Pensions Ombudsman, (f) in relation to the Houses of the Oireachtas Service, the Chairman of Dáil Éireann, (g) in relation to the Houses of the Oireachtas Commission, its chairperson, (h) in relation to the Office of the Ombudsman for Children, the Ombudsman for Children, (i) in relation to the Garda Síochána, the Garda Commissioner, (j) in relation to the Garda Síochána Ombudsman Commission, its chairperson, and (k) in relation to any other public body, the person who holds, or performs the functions of, the office of chief executive officer (by whatever name called) of the body; ‘relevant Minister’ means a Minister of the Government with responsibility for the public body concerned in whom functions, whether statutory or otherwise, as respects that public body, are vested, or a Minister of State to whom any such function is delegated.”. Amendment of section 10 of Principal Act 13. The following section is substituted for section 10 of the Principal Act: “10. A disclosure is made in the manner specified in this section if— (a) it is made otherwise than in the manner specified in sections 6 to 9, (b) the worker reasonably believes that the information disclosed in the report, and any allegation contained in it, are substantially true, and (c) the worker— (i) has previously made a disclosure of substantially the same information in the manner specified in section 6, 7 or 8, as the case may be, but no appropriate action was taken in response to the report within the period specified in section 6A(1)(e), 7A(1)(c), 10C(7)(b), 10D(7)(b) or 10E(1)(c), as the case may be, or (ii) reasonably believes that— (I) the relevant wrongdoing concerned may constitute an imminent or manifest danger to the public interest, such as where there is an emergency situation or a risk of irreversible damage, or (II) if he or she were to make a report in the manner specified in section 7 or 8, as the case may be— (A) there is a risk of penalisation, or (B) there is a low prospect of the relevant wrongdoing being effectively addressed, due to the particular circumstances of the case, such as those where evidence may be concealed or destroyed or where a prescribed person may be in collusion with the perpetrator of the wrongdoing or involved in the wrongdoing.”. Chapter 3 Office of the Protected Disclosures Commissioner Office of the Protected Disclosures Commissioner 14. The Principal Act is amended by the insertion of the following Part after section 10: “PART 2A Office of the Protected Disclosures Commissioner Establishment of Office of the Protected Disclosures Commissioner 10A. (1) There is hereby established an office to be known, in the Irish language, as Oifig an Choimisinéara um Nochtadh Cosanta and, in the English language, as the Office of the Protected Disclosures Commissioner and the holder of the office shall be known as the Protected Disclosures Commissioner (in this Act referred to as the ‘Commissioner’). (2) The holder of the office of Commissioner shall be the person who, for the time being, holds the office of Ombudsman. (3) The Commissioner shall be a corporation sole with perpetual succession and an official seal and with power— (a) to sue and be sued, and (b) with the consent of the Minister and the Minister for Finance, to acquire, hold and dispose of land or an interest in land, and to acquire, hold and dispose of any other property. (4) The Commissioner shall be independent in the performance of his or her functions. (5) The Commissioner shall have all such powers as are necessary or expedient for, or incidental to, the performance of his or her functions under this Act. (6) Subject to this section, Schedule 5 shall have effect in relation to the Commissioner. (7) The Commissioner shall perform the functions conferred on him or her by or under this Act or any other Act. (8) The Commissioner shall provide such administrative and support services to the Disclosures Recipient, appointed under Schedule 3 pursuant to section 18, as are necessary for the performance of the functions of the Disclosures Recipient. Provisions applying to reports made to Commissioner in the manner specified in section 7 10B. (1) The Commissioner shall ensure that the external reporting channels and procedures for making reports to the Commissioner in the manner specified in section 7 meet the following criteria if they are to be considered to be independent and autonomous: (a) they are designed, established and operated in a manner that ensures the completeness, integrity and confidentiality of the information concerned and prevents access thereto by persons other than designated persons and any other members of staff duly authorised in that behalf; (b) they enable the durable storage of information in accordance with section 16C to allow further investigations to be carried out. (2) External reporting channels and procedures shall enable reports to be made to the Commissioner in the manner specified in section 7— (a) in writing and orally, and (b) in the case of a report made orally, by telephone or through other voice messaging systems and, upon request by the reporting person, by means of a physical meeting, with the Commissioner or a designated person, as the case may be, within a reasonable period from the making of the request. (3) The Commissioner shall acknowledge, in writing, to the reporting person, receipt of a report made to the Commissioner not more than 7 days after receipt of it, save where the reporting person explicitly requested otherwise or the Commissioner reasonably believes that acknowledging receipt of the report would jeopardise the protection of the identity of the reporting person. (4) The Commissioner shall ensure that where a report is received by the Commissioner through channels and procedures other than those provided for in subsections (1) and (2) or is received by a member of staff other than a designated person— (a) it shall be forwarded promptly and without modification to the designated person, and (b) any information that might identify the reporting person or the person concerned shall not be disclosed by such member of staff. (5) The Commissioner shall designate one or more than one member of staff (in this section referred to as a ‘designated person’) to be responsible for handling reports and, in particular, for providing any person with information on the procedures for making a report in the manner specified in section 7. (6) The Commissioner shall ensure that designated persons receive specific training for the purposes of handling reports. (7) The Commissioner shall publish on a website maintained by or on behalf of the Commissioner in a separate, easily identifiable and accessible section at least the following information: (a) the conditions for qualifying for protection under this Act; (b) the contact details of the Commissioner for the purpose of making reports to the Commissioner in the manner specified in section 7, in particular the electronic and postal addresses and the telephone numbers for making such reports, indicating whether the telephone conversations are recorded; (c) the procedures applicable to the making of reports using the external reporting channels and procedures, including the manner in which the Commissioner may request the reporting person to clarify the information reported or to provide additional information, the period for providing feedback (including further feedback) and the type and content of such feedback; (d) the confidentiality regime applicable to reports and, in particular, the information in relation to the processing of personal data in accordance with section 16B and under applicable data protection law; (e) the nature of the follow-up to be given in relation to reports; (f) the remedies and procedures for protection against penalisation and the availability of advice pursuant to Article 20.1(a) of the Directive for persons contemplating making a report; (g) a statement clearly explaining the conditions under which persons making a report using the external channels and procedures are protected from incurring liability for a breach of confidentiality pursuant to sections 14 and 15; (h) contact details for the support services provided under section 21A; (i) such other information as the Minister may specify in guidance under section 21. (8) (a) The Commissioner shall review the external reporting channels and procedures regularly but at least once within 3 years after the date of first publication of information under subsection (7) and at least once in every period of 3 years after the first such review. (b) In reviewing the external reporting channels and procedures, the Commissioner shall take account of their operation and may consult with prescribed persons in relation to the operation of external channels and procedures established, maintained and operated for the purposes of enabling the making of reports to prescribed persons in the manner specified in section 7 and adapt the external channels and procedures accordingly as the Commissioner considers necessary and appropriate. (9) A reporting person shall, in respect of the report concerned and any follow-up procedures, without prejudice to his or her rights under this Act and to such extent as may reasonably and lawfully be required for the purposes of this Act, cooperate with the Commissioner in relation to the performance by the Commissioner of the functions conferred on the Commissioner by or under this Act. Commissioner to act as recipient of last resort in respect of certain reports 10C. (1) Subject to subsection (3), the Commissioner shall, within 14 days of receipt of a report made or transmitted to the Commissioner (other than reports transmitted to the Commissioner in the manner specified in section 8), or, in exceptional circumstances, due to the nature and complexity of such report, within such extended period as the Commissioner considers reasonable in those circumstances— (a) identify— (i) such prescribed person or persons (other than the Commissioner) as the Commissioner considers appropriate, or (ii) an other suitable person other than a prescribed person (in this section referred to as an ‘other suitable person’) who, in the opinion of the Commissioner, appears, by reason of the nature of such person’s responsibilities or functions, to be appropriate to be the recipient of the report, and to have the competence to provide feedback and follow-up and protect the identity of the reporting person and persons concerned in accordance with sections 16 and 16A, where— (I) there is no prescribed person whom the Commissioner considers appropriate to be the recipient of the report, or (II) having regard to the nature of the relevant wrongdoing concerned or the circumstances of the report, the Commissioner is of the opinion that the report should not be transmitted to a prescribed person because to do so would create a risk of serious penalisation against the reporting person or that evidence of the relevant wrongdoing would be concealed or destroyed, and (b) transmit the report to such prescribed person or other suitable person, as the case may be. (2) The Commissioner shall notify the reporting person, in writing, as soon as practicable, of the transmission of the report under subsection (1) and the reasons for the transmission. (3) Where the period specified in subsection (1) is extended as provided for by that subsection, the Commissioner shall notify the reporting person, in writing, as soon as practicable, of the extension or any further extension, as the case may be, and the reasons for that extension or further extension. (4) When transmitting a report to an other suitable person under subsection (1), the Commissioner shall inform such person, in writing, of the obligations imposed on the person by this Act. (5) Where a prescribed person or other suitable person cannot be identified under subsection (1), the Commissioner shall accept the report and notify the reporting person accordingly and of the reasons for accepting the report, in writing, as soon as practicable. (6) The Commissioner shall establish procedures for handling reports accepted under subsection (5) and for follow-up. (7) The procedures referred to in subsection (6) shall include the following: (a) diligent follow-up, which shall include at least the following: (i) the carrying out of an initial assessment, including seeking further information from the reporting person if required, as to whether there is prima facie evidence that a relevant wrongdoing may have occurred; (ii) if, having carried out an initial assessment, the Commissioner decides that there is no prima facie evidence that a relevant wrongdoing may have occurred— (I) closure of the procedure, and (II) notification of the reporting person, in writin …