07/06/19 – Every time a national security whistleblowing story hits the headlines, a standard reaction is that the person who disclosed it should have spoken up using official channels rather than going to the media. For those of us working in the field of whistleblower protection, we know it is highly likely they did try to raise it internally, but for whatever reason the official channels failed. The real question we need to ask is can we make it safer to speak up about wrongdoing and have it addressed within the system. This WIN guest blog by Dr. Ashley Savage, an independent specialist on whistleblowing based in Vienna, is based on a recent conference he attended which explored the military whistleblower’s dilemma.
Voice and Dissent in the Military
Most, if not all, whistleblowers face uncertainty when deciding whether or not to blow the whistle. Will they be listened to? Will they be protected? Will they lose their job? Will they be retaliated against? These situations become all the more difficult when the culture of the organisation does not actively support whistleblowing. Military whistleblowers face particular challenges: a rigid command structure, rules on discipline, and restrictions on speech with potential criminal consequences for non-compliance.
In May 2019, the European chapter of the International Society for Military Ethics (EuroISME) hosted its annual conference at the National Defence Academy in Vienna, Austria. Significantly, the theme of the conference was “voice and dissent in the military” which allowed for in-depth consideration of whistleblowing in the armed forces, military ethics, and when and how it is appropriate, legal and ethical to disobey a direct order. This was a rare opportunity to focus specifically on military whistleblowing – bringing together a mix of academics, practitioners and military personnel providing a broad range of presentations and room for discussion.
A constant theme throughout was the notion of “loyalty”. Military whistleblowers are often considered disloyal for raising a concern, even though their motivation is to correct wrongdoing and malpractice. Being seen as disloyal can result in severe retaliation not only from superiors but also from colleagues, friends and even the wider community. This may stem, in part, from the unique nature of military organisations where commitment to service is built on camaraderie and a sense of shared purpose. Blowing the whistle is then perceived as a rejection of a shared way of life.
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.