Two embarrassing whistleblower retaliation cases, an unusually harsh report from the OECD, and an admission from a top public official that whistleblowers are “on your own” are seriously challenging the Netherlands’ commitment to protecting its own people from reprisals.
On top of this recent unflattering news, Dutch officials reportedly have little or no interest in updating its current whistleblower protection law to comply with the EU’s new mandatory standards. A public consultation that sought input from citizens on a potential new law has been labeled a sham by several people closely observing the process.
This all may come as a surprise in a country that Transparency International ranks as the eighth least-corrupt in the world, which Freedom House rates the fourth-best in terms of political rights and civil liberties, and that the World Justice Project places fifth in its Rule of Law Index.
But as has often been said, it is much easier to proclaim one’s values and principles than to actually uphold and fight for them.
Jonathan Taylor is British lawyer mired in a Kafkaesque stalemate that began in 2012, when he exposed bribery by Dutch fossil-fuel multinational SBM Offshore. Taylor’s disclosures led to SBM being fined more than $800 million in Brazil, the Netherlands and the US. Taylor now is being pursued under an Interpol criminal warrant originating in Monaco, where he worked for SBM. He is in limbo in Croatia, where a court has rejected Monaco’s extradition request. Taylor says a Dutch law firm is acting to cover up SBM’s alleged misdeeds. Though technically outside of the Netherlands’ jurisdiction, Taylor’s case has exposed chronic apathy and a lack of public support by Dutch officials.
Just as troubling, the International Court of Justice in The Hague ruled in September that the Dutch Ministry of Foreign Affairs “falsely fired” Fidelia Onoghaife. A senior policy advisor at the Dutch Embassy in Nigeria, Onoghaife reported that Ambassador Robert Petri leaked confidential information to Shell about a corruption investigation of the company. After promising to protect her from retaliation, the ministry fired her due to “management” issues. The Hague court soundly rejected the ministry’s claims and ordered Onoghaife to be paid two years’ salary. Petri was not dismissed and was able to keep his job.
Whistleblowers on their own
The Hague ruling coincided with a scathing report by the OECD on the Netherlands’ performance. “The much-awaited whistleblower protection regime has faced severe criticism and has yet to bear fruits as a source of detection,” the organization wrote. The OECD called the Dutch whistleblower protection law, the Whistleblowers Authority Act, “groundbreaking legislation that nevertheless fails to provide comprehensive protection.”
The OECD said the public agency responsible for assisting citizens, the Whistleblowers Authority, “is failing to meet expectations due to its limited mandate.” Specifically, the OECD concluded:
- the Whistleblowers Authority, though established four year ago, has not yet referred any whistleblower retaliation cases to civil courts for resolution
- the Whistleblowers Authority is not able to order employers to reinstate or compensate employees victimized for making a report; the agency can only write reports on cases
- victimized employees must seek remedies in court, where contrary to EU requirements they bear the burden of proving they were fired for blowing the whistle
- journalists told the OECD that the Whistleblowers Authority is not “what was initially expected,” and that it is “painful” for them to tell citizens “they are not safe to report in the Netherlands”
- there are no penalties for employers who punish whistleblowers
- conflicts may arise because the Whistleblowers Authority investigates retaliation by companies while also advising the same companies on whistleblower procedures.
In the face of these major shortcomings, the OECD has directed the Netherlands to submit a report by next October on its compliance with the new EU Directive.
Last week the head of the Whistleblowers Authority publicly acknowledged major weakness with the very system he is overseeing. “Society should not leave whistleblowers to their own devices,” said agency Chair Wilbert Tomesen. “A whistleblower can certainly go to court. But is it appropriate to say to people who do something in the interest of the entire society, ‘Find out for yourself [if you are protected]. You’re on your own’?”
‘Whistleblowers are not safe in the Netherlands’
Few legal professionals in the Netherlands know more about the opportunities and challenges of whistleblowing than Caroline Raat. It’s been 30 years since she first heard the Dutch term for whistleblowers – klokkenluiders (“bell ringers”) – from Leiden University Professor Mark Bovens. After working as a civil servant for several years, she went on to write her PhD thesis – Mensen met macht (“People in Power”) – on the need for whistleblower protection as a means to prevent irregularities and abuse of power.
Raat works under several brands, collaborates with many other organizations, and is an active author and blogger. Her firm Recht en Raat provides legal and organizational research, and training for public agencies with an emphasis on constitutional and administrative law, due process and public sector ethics. She also has collaborated with several anti-corruption NGOs, so her work has the added value of civil society perspectives. She was among the experts who provided input on the OECD’s critical report on the Netherlands’ whistleblower system.
Under the name Ratio Recht, Raat has worked on individual whistleblower and professional integrity cases since 2006, when she first encountered integrity issues in public administration. Her newest initiative BeslisGoed – “decide well” – focuses on removing biases from decision-making in order to prevent abuse of power and integrity lapses.
Raat says she has advised or represented upwards of 50 people on whistleblower issues, and she has formally filed six cases in court. Good outcomes, she says, are extremely difficult to achieve.
“At the moment whistleblowers are not safe in the Netherlands. It is very hard to get a successful result in court. There is such a high burden of proof on the side of the employee. It is nearly impossible to win a case. Most rulings by judges have been absolutely wrong.” She says, for example, that the Netherlands’ highest court in civil service cases (Centrale Raad van Beroep) ruled the Council of Europe’s official recommendation on whistleblowing did not apply in the country.
“There is very little literature on how to deal with a whistleblower case. I have learned a lot on the job,” Raat says. “You have to do it yourself.”
Given the strong biases against whistleblowers in the Netherlands, Raat often advises people to settle disputes quietly and within their workplaces. A whistleblower who pushes too hard and whose name becomes known can become “damaged goods” who has little choice but to find a new job. Since the Netherlands is relatively a small country, she says, this can be a difficult task after a “whistleblower career.”
“There is a kind of naiveté among employees. They try to make a report out of loyalty. They think, ‘My boss is only going to very happy that I came forward.’ But they aren’t. People cannot believe their employer can be so harsh. By the time people call me or another lawyer, the damage has usually already been done.”
The negative attitudes toward whistleblowers reflects a running theme in Dutch society, Raat observes. “The way whistleblowers are treated is not all that different from how citizens and companies that raise issues with the government are treated. They are a pain and they should shut up. But by treating people this way, the government is going to make things worse for itself.”
Deeper still, Raat says institutions can be biased against coming up with forthcoming responses when problems arise, which can lead to inaction and a lack of accountability.
“When the government makes a mistake, even and honest mistake, they refuse to fix the problem. They see their main task as sweeping it under the carpet. There is a lot of fear. People can get fired or bullied if they make a mistake.”
Strong whistleblower protections likely won’t address these engrained sociological issues overnight. Still, Raat says the Dutch whistleblower law is in urgent need of improvement.
“If I were in the legislature, I would start from scratch,” Raat says. “We should get rid of the old law completely and use best practices from all over the world.”