The Council of Europe Parliamentary Assembly has adopted a resolution to protect whistleblowers. Drafted by the Assembly’s Committee on Legal Affairs and Human Rights, the resolution expresses appreciation for whistleblowers who “stop wrongdoings that place fellow human beings at risk, … strengthen accountability and bolster the fight against corruption and mismanagement, both in the public and private sectors.” The resolution responds to the fear of reprisals, and the risk of official inaction after wrongdoings are disclosed. The Parliament looked favorably on a recent British law protecting whistleblowers, and on the laws of the United States (apparently unaware of the patchwork nature of our laws). By a vote of 21 to 0, the representatives agreed that:
Whistle-blowing has always required courage and determination. But “whistle-blowers” should at least be given a fighting chance to ensure that their warnings are heard without risking their livelihoods and those of their families. Relevant legislation must first and foremost provide a safe alternative to silence, whilst avoiding offering potential “whistle-blowers” a “shield of cardboard” which would entrap them by giving them a false sense of security.
Europe now calls for protection of media sources and “against criminal prosecution for defamation, breach of official or business secrecy, and protection of witnesses.” The full text of the resolution, and a few of my comments, are in the continuation of this posting.
The resolution calls on governments to enact comprehensive legislation that protects warnings on any illegality, including “all serious human rights violations which affect or threaten the life, health, liberty and any other legitimate interests of individuals as subjects of public administration or taxpayers, or as shareholders, employees or customers of private companies.”
The European Parliament also calls for a “positive evolution of the general cultural attitude” towards “whistle-blowing”, “which must be freed from its former association with disloyalty or betrayal.” I appreciate that the resolution adds recognition for:
the important role of non-governmental organisations in contributing to the positive evolution of the general attitude towards “whistle-blowing” and in providing counselling to employers wishing to set up internal “whistle-blowing” procedures, to potential “whistle-blowers” and to victims of retaliation.
When I speak about whistleblower laws in the U.S., I am often surprised that others are surprised that the U.S. has no all-encompassing whistleblower law. Our law still comes up short on this standard set by Europe. While we have dozens of laws that prohibit retaliation for raising specific types of concerns, there are still gaping holes in our patchwork. Federal employees, like Robert MacLean, have no access to jury trials but instead an administrative remedy at MSPB that is truly “a shield of cardboard.” Workers in the healthcare industry have no national protection for raising concerns about patient care. The recent Consumer Product Safety Improvement Act (CSPIA) excludes whistleblowers who raise concerns about pharmaceuticals, automobiles and food.
I was also interested in the Parliament’s debate on this resolution (which begins about 3/4 of the way down the linked page). Members felt that whistleblowers should have broad protection for internal whistleblowing, but should meet a higher standard for establishing grounds for their concerns if they choose to blow the whistle to the media. Thankfully, U.S. laws generally protect all lawful activities that seek to promote the objectives of the law, respecting a whistleblower’s privilege to choose among the lawful means of disclosure to find what will be most effective. As the parliamentarians noted, sometimes official responses to whistleblower disclosures are less energetic than desired. The warm glow of media attention can help.
Other parliamentarians noted a number of recent scandals that could have been mitigated by more effective whistleblowing. These include the role of Lehman Brothers in the recent financial crises, nuclear dumping in the Baltic, and even corruption within the European Union.
This European resolution is a helpful tool in evaluating proposed legal protections for whistleblowers. The National Whistleblowers Center has a proposed Model Law that provides more specific examples of how to protect whistleblowers.
Here now is the full text of Resolution 1729 (2010) on the protection of “whistle-blowers.”
1. The Parliamentary Assembly recognises the importance of “whistle-blowing” – concerned individuals sounding the alarm in order to stop wrongdoings that place fellow human beings at risk – as an opportunity to strengthen accountability and bolster the fight against corruption and mismanagement, both in the public and private sectors.
2. Potential “whistle-blowers” are often discouraged by the fear of reprisals, or of the lack of follow-up given to their warnings, to the detriment of the public interest in effective management and accountability of public affairs and private business.
3. A series of avoidable disasters has prompted the United Kingdom to enact forward-looking legislation to protect “whistle-blowers” who speak up in the public interest. Similar legislation has been in force in the United States of America for many years, with globally satisfactory results.
4. Most member states of the Council of Europe have no comprehensive laws for the protection of “whistle-blowers”, though many have rules covering different aspects of “whistle-blowing” in their laws governing employment relations, criminal procedure, media, and specific anti-corruption measures.
5. Whistle-blowing has always required courage and determination. But “whistle-blowers” should at least be given a fighting chance to ensure that their warnings are heard without risking their livelihoods and those of their families. Relevant legislation must first and foremost provide a safe alternative to silence, whilst avoiding offering potential “whistle-blowers” a “shield of cardboard” which would entrap them by giving them a false sense of security.
6. The Assembly invites all member states to review their legislation concerning the protection of “whistle-blowers”, keeping in mind the following guiding principles:
6.1. “Whistle-blowing” legislation should be comprehensive:
6.1.1. The definition of protected disclosures shall include all bona fide warnings against various types of unlawful acts, including all serious human rights violations which affect or threaten the life, health, liberty and any other legitimate interests of individuals as subjects of public administration or taxpayers, or as shareholders, employees or customers of private companies.
6.1.2. The legislation should therefore cover both public and private sector “whistle-blowers”, including members of the armed forces and special services, and
6.1.3. It should codify relevant issues in the following areas of law:
6.1.3.1. Employment law – in particular protection against unfair dismissals and other forms of employment-related retaliation;
6.1.3.2. Criminal law and procedure – in particular protection against criminal prosecution for defamation, breach of official or business secrecy, and protection of witnesses;
6.1.3.3. Media law – in particular protection of journalistic sources; and
6.1.3.4. Specific anti-corruption measures such as those foreseen in the Council of Europe Civil Law Convention on Corruption (ETS No. 174).
6.2. “Whistle-blowing” legislation should focus on providing a safe alternative to silence.
6.2.1. It should give appropriate incentives to government and corporate decision makers to put into place internal “whistle-blowing” procedures that will ensure that:
6.2.1.1. disclosures pertaining to possible problems are properly investigated and relevant information reaches senior management in good time, bypassing the normal hierarchy, where necessary, and
6.2.1.2. the identity of the “whistle-blower” is only disclosed with his or her consent, or in order to avert serious and imminent threats to the public interest.
6.2.2. This legislation should protect anyone who, in good faith, makes use of existing internal “whistle-blowing” channels from any form of retaliation (unfair dismissal, harassment, or any other punitive or discriminatory treatment).
6.2.3. Where internal channels either do not exist or have not functioned properly, or could reasonably not be expected to function properly given the nature of the problem raised by the “whistle-blower”, external “whistle-blowing”, including through the media, should likewise be protected.
6.2.4. Any “whistle-blower” shall be considered as acting in good faith provided he or she had reasonable grounds to believe that the information disclosed was true, even if it later turns out that this was not the case, and provided he or she did not pursue any unlawful or unethical objectives.
6.2.5. Relevant legislation should afford bona fide “whistle-blowers” reliable protection against any form of retaliation by an enforcement mechanism investigating the “whistle-blower”‘s complaint and seeking corrective action from the employer, including interim relief pending a full hearing and appropriate financial compensation if the effects of the retaliatory measures cannot reasonably be undone.
6.2.6. It should also create a downside risk for those committing acts of retaliation by exposing them to counter-claims from the victimised “whistle-blower” with the intention of having them removed from office or otherwise sanctioned.
6.2.7. Whistle-blowing schemes shall also provide for appropriate protection against accusations made in bad faith.
6.3. As regards the burden of proof, it shall be up to the employer to establish beyond reasonable doubt that any measures taken to the detriment of a “whistle-blower” were motivated by reasons other than the action of the “whistle-blower”.
6.4. The implementation and impact of relevant legislation on the effective protection of “whistle-blowers” should be monitored and evaluated at regular intervals by independent bodies.
7. The Assembly stresses that the necessary legislative improvements must be accompanied by a positive evolution of the general cultural attitude towards “whistle-blowing”, which must be freed from its former association with disloyalty or betrayal.
8. It recognises the important role of non-governmental organisations in contributing to the positive evolution of the general attitude towards “whistle-blowing” and in providing counselling to employers wishing to set up internal “whistle-blowing” procedures, to potential “whistle-blowers” and to victims of retaliation.
9. In order to set a good example, the Assembly invites the Council of Europe to put into place a strong internal “whistle-blowing” procedure covering the Council itself and all its Partial Agreements.