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.
‘Ireland had the strongest whistleblower law in the EU and had inspired reform with its legislation around the world. It looks like the government has broken something that didn’t need to be fixed. Irish whistleblowers, business and the Irish public will be the real losers here.’
Anna Myers Whistleblowing International Network (WIN)
04/07/2018 – WIN Director Anna Myers has joined several expert organisations, legal advisors and practitioners in signing a letter from Transparency International Ireland urging the Irish Government to amend the EU Protection of Trade Secrets Regulation (SI 188) on the basis of its creation of a new test for whistleblowers. Unlike the existing Protected Disclosures Act 2014 (PDA), SI 188 requires whistleblowers to demonstrate that their disclosure was motivated by a general public interest concern even if the disclosure is later deemed to be true, related to a criminal offence, or they reported it to their employer or the appropriate authorities.
Whilst the EU Trade Secrets Directive (passed in July 2016) is supposed to provide strong safeguards for intellectual property holders, there is no requirement in the Directive for any EU Member State to create an additional test for whistleblowers. Under the terms of the Irish proposals, whistleblowers reporting offences to the Office of the Director of Corporate Enforcement or to law enforcement will not only be required to show they believed a crime was or about to be committed but will also have to prove they were motivated to protect the general public interest in reporting the crime.