Summary Young TI Event - Whistleblowing: Obstacles, Risks and Opportunities
Date : 26/04/2016
Whistleblowing is currently a very topical issue with more and more cases of fraud, corruption, malpractice and secret documents being revealed to the general public. The issue had been making the headlines in the past few days with the beginning of the trial of Antoine Deltour as part of the LuxLeaks affair. It is in this context that Young Transparency International Belgium hosted their monthly meeting titled “Whistleblowing: Obstacles, Risks and Opportunities”.
Three experts were asked to share their knowledge on this very controversial issue. They opened the discussion by sharing a strong statement about whistleblowing, and commented further on them throughout the evening.
Principal Lecturer, University of Greenwich, Business School (UK)
“We should not encourage people to blow the whistle unless we have a better answer”.
With this statement, Mr. Vandekerckhove did not mean that whistleblowing should be stopped, but that less importance should be given to this practice until it is better framed. It is dangerous to encourage people to speak up if there are no resources to process the alerts. If whistleblowing is encouraged but nothing is done to follow up on the denunciation, this risks to cause disillusion among the population as speaking up brings no result.
Whistleblowing in Europe is still faced with important flaws today: it cannot be done anonymously for investigation purposes, as a result, whistleblowers are exposed to retaliation and sanctions against wrongdoers are often invisible, etc.
Wim Vandekerckhove suggested that organisations must enhance their response to whistleblowing, and that the appropriate measures need to be put in place within them to address issues, which would remove the need to have recourse to the media.
He also suggested that whistleblowing should not be necessary. Organisations should be encouraged to listen to people who raise concerns, and address the issues. An employee should be able to go to his/her superior and point out wrongdoing without the fear of negative consequences.
GUDRUN VANDE WALLE
PhD, Integrity Centre at Belgian Federal Ombudsman, Certified Fraud Examiner - Registered Fraud Auditor
“Reporters of integrity violations deserve full respect: they are the individuals that want to make the most out of their jobs and they are willing to contribute to a government with more integrity”
Ms. Vande Walle further raised the question of whistleblowers’ good faith, which is very important. She explained that whether the person who raised the alarm did so with good intentions or not, is not an important question for her when starting an investigation. Every whistleblower is treated with integrity. During the investigation, the intentions of the whistleblower automatically come to the surface.
ANNE SCHELTEMA BEDUIN
General Director TI The Netherlands & Associate Professor Human Rights at the University of Amsterdam
“To encourage whistle-blowers, they should receive a fair share of the revenues of the abuses as in the US”
This statement raises the question of making whistleblowing a lucrative activity like it is the case in the United States.It remains difficult for the legislature to combine an element of indemnification, just satisfaction or even reward with the country's history, culture and circumstances regarding whistleblowers.
WHAT IS BEING DONE IN THE NETHERLANDS?
Anne Scheltema Beduin explained the measures recently put in place in The Netherlands to protect whistleblowers. She pointed out that being a whistleblower came with high costs, both financially and personally and that there were too many channels of reporting and too little protection for the whistleblowers, which made the reporting very complex. It appears that 25% of the people who seek advice regarding potentially launching the alert will not dare to report a wrongdoing out of fear of negative consequences and lack of trust in the procedure. Another reason for not going further is also the expectation that someone else will report the same issue.
Developed with the support of Transparency International Netherlands, the new law aiming at protecting the whistleblowers had been in discussion since May 2012, before finally being agreed upon in March 2016. The plan includes setting up a House for Whistleblowers by next July. The aim of this House is to provide support to whistleblowers, offer them advice on the steps and costs (understood broadly) of raising the alert. The law also requests all companies, from both the public and private sectors, of more than 50 employees, to put in place whistleblowing legislation regulations.
Anne Scheltema Beduin pointed out some flaws in the law: it does not protect freelancers, interns and volunteers. This might be seen as an outcome of a strong lobby by employers' organisations, but is also due to the legalisation of the protection offered by the law. The law also seems to lack of power and resources, which will certainly make its enforcement limited.
The new regulations in place in the Netherlands are therefore not perfect, but, according to Ms. Schelteman Beduin, are going in the right direction and will certainly support whistleblowers in their very difficult crusade against those who have faulted and failed to address the issue.
The discussion in The Netherlands is still vivid; there seems to have been a shift from the early days of the discussion: the aim was first to protect whistleblowers, and seems that it is now aiming at protecting public assets and wastes. The debate and measures have thus shifted from a human perspective to a financial one.
CAN WHISTLEBLOWER PROTECTION MECHANISMS BE UNIVERSAL?
One of the issues raised during the discussion is the variety of measures in place throughout the world – some countries are only discovering what whistleblowing means. Nikoleta Arnaudova gave the example of Bulgaria where the term is slowly appearing on the local political scene. It seems difficult to develop a world-wide approach to the practice as national legislations, culture and work practices differ.
The possibility to create a European framework has been discussed for several months, but it is expected that if an agreement is reached, it would be very watered down in order to reach consensus.
For the moment, Wim Vandekerckhove explained, the Recommendation CM/Rec(2014)7 of the Council of Europe on the Protection of Whistleblowers is a first step. He, however, considers the recommendation to be too soft, and that it is only applicable to the public sector. In addition, there is no mention of “good faith” as it is a very controversial issue, notably when it comes to defining whether the alert was raised for the general interest or not.
Now seems to be the best time for a strong agreement within the EU, and it can be expected that France, Germany and The Netherlands will take an active part in the discussion. It is also the best time for Transparency International to use its recommendations as leverage.
What seems important for all speakers is the need to make information about whistleblowing available: it is necessary for everyone who believes they have something to report to know what will come with becoming a whistleblower: what is the cost, when to get a lawyer, who to report the affair to, etc.
WHAT ABOUT THE BELGIAN MODEL?
Gudrun Vande Walle explained that the Belgian system regarding whistleblowing cases works in two stages, the starting point being someone bringing their cases to the Integrity Centre at Belgian Federal Ombudsman to report a violation of integrity. These people must be part of the public administration who are currently in activity – this mechanism is therefore no applicable to the private sector.
The first step is a preliminary investigation where open sources are consulted in order to determine whether it is reasonable that something worth reporting had occurred. Then, the person who reported the case is asked whether they would like to make their claim official. If so, the second state starts: the official investigation begins. The whistleblower and all the people interrogated as part of the investigation are protected, and so until 2 years after the end of the judicial procedure.
This system is relatively new and therefore it is difficult to assess the effectiveness of this approach. It, however, seems to have brought satisfactory results so far.
EXPERIENCE OF A WHISTLEBLOWER
A whistleblower, Robert McCoy was in the audience and shared his experience. He exposed low level fraud and tempering with public procedures within the EU Committee of the Regions where he had worked as international auditor. He stated that the legislative framework of the EU does not work as there is a gap between the theory and the practice: in reality, whistleblowing is “hell paved with good intentions”.
After reporting the issues to his hierarchy who did not respond positively to his concerns, he then raised the issue to the media. He has consequently been fired from CoR and vilified.
Mr. McCoy explained that there is a universality of how whistleblowers are treated: they all faced negative consequences. The procedure is also extremely costly, both in terms of loss of income and legal fees. Usually, whistleblowers become unemployable. He then raised the issue of reputation: for him, organisations prefer to bury the case rather than address it and be praised for doing so.
All speakers seem to agree that blowing the whistle has long term consequences: the fight is long and difficult.
On a legislative perspective, much still needs to be done in order to encourage whistleblowing while being able to investigate and give appropriate answers to wrongdoings. A balance needs to be found between reward and encouragement, both for the whistleblower and the accused organisation.
In general, the speakers agree that an alternative to whistleblowing should be found: it should not have to go as far as involving the general public. Organisations should be able to question themselves and stop the malpractices. People’s scrutiny should be approached as a win-win situation where the whistleblower gets praised for pointing out the issue, and the organization for fixing it.
Thank you to the speakers for sharing their expertise with us. Thank you to Nikoleta Arnaudova for moderating this discussion. And thank you for everyone who participated in the discussion.
You can retrieve parts of the discussion on Twitter at #YoungTIchat.
Next month’s Young TI event will focus on Corruption in Sports. It will take place on May 28th at Mundo-J, Rue de l’Industrie, 10 – Brussels. For more information and registration, please click here.