WIN is supporting this campaign by the Green/EFA Group in the EU Parliament because we have a massive opportunity to end the fear, silence, loneliness and bullying that some people suffer from just telling the truth. The European Union is on the verge of enacting new legislation that would change the lives of people who reveal the truth about illegalities, corrupt practices and other dodgy dealings – otherwise known as “whistleblowers”.
The first of its kind, the new European Whistleblower Directive would oblige all EU governments to introduce minimum standards of protection for truth-tellers. These protections would include penalties for people that retaliate against whistleblowers or try to shut them up; an obligation for public and private bodies to set up channels for receiving reports and to keep the identity of the whistleblower confidential; and legal shields for whistleblowers so that, if for example they breach a confidentiality agreement, they would not be held liable for it.
06/02/19 – It is now crunch time as the European Commission, the European Parliament and the European Council engage in trilogue negotiations to agree the final text of the EU draft directive on the protection of whistleblowers.
WIN presents, courtesy of Tom Devine, Legal Director of the Government Accountability Project, an analysis of the European Council’s agreed position published on the 29th January 2019. This is what the Council is taking into the negotiations and it is much further away from the European Parliament’s position on the fundamental issue of protecting those who report information directly to competent authorities than we had hoped or can understand.
This Legal Brief explains exactly what the problems are and why enforcing mandatory internal reporting is as bad for business as it is for individuals who want to speak up about wrongdoing, even directly to their employers!
Not only does the European Council retain and reinforce the structural problems of mandatory internal reporting – originally included by the Commission but removed by Parliament in its proposal! – it has added its own poison pills:
restoring vulnerability to obstruction of justice by canceling the clear right to make external disclosures to government authorities immediately;
adding an unprecedented subjective test as a prerequisite for the liability shield: the whistleblower not only must prove a reasonable belief of misconduct but also that his or her specific whistleblowing was necessary to reveal it;
effectively cancelling the liability shield while adding an unprecedented prerequisite for protected speech — that evidence was lawfully obtained, not just lawfully disclosed. Significantly, this will put the whistleblower on trial in every case, having to win that battle before being able to challenge any retaliation against them for having reported the actual wrongdoing; and
finally, by imposing a subjective, unreviewable, open-ended national security loophole giving each nation the option to cancel the Directive’s public freedom of expression rights
WIN’s Legal Briefs have been updated to include a response to the EU Council which is now scrutinising the draft directive. This update highlights growing concern that the much welcome improvements to the EU draft directive recently voted through the Parliamentary Committee will not replicated by the EU Council.
The main problem, which the EU Council seems set to embrace and which was recently rejected by the JURI Committee in its Report, is that the draft directive reinforces employer control over the reporting of wrongdoing. It does so by making it a requirement for all those in a work-based relationship to report their concern to their employer first. While reporting internally will remain the default for the vast majority of whistleblowers and it makes sense for employers to do all they can to encourage their staff to speak up early, it is dangerous to make it a legal obligation.
Further, making staff use the channels that employers “officially” set up is almost worse. The vast majority of whistleblowers raise concerns as a normal part of doing their jobs and typically it is only as a result of the response they get, that they realise that something is really wrong. Formal reports of wrongdoing via official employer channels set up for that purpose will only ever capture the tip of the information the Directive seeks to protect; the iceberg is the routine reports of discovered problems though the supervisory chain of command and in sensitive assignments such as audits, inspection reports and reports of investigations. Very few people who report problems are doing so specifically to denounce misconduct or as dissidents.
We, the undersigned, join the Government Accountability Project in expressing our concern about the decision of the Dutch Government to award the 2018 Human Rights Tulip to outgoing UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, on 3 September 3 in The Hague. Our concerns are based on the responses to individual OHCHR whistleblowers who disclosed information about serious human rights violations, including the sexual abuse of children by French peacekeeping forces in the Central African Republic. We urge the Minister to reconsider proceeding with the award until the UN High Commissioner resolves the outstanding cases of retaliation against the publicly vindicated whistleblowers in his own office.