Transparency International Ireland Integrity at Work Conference: “Speaking up safely”

Emily O’ Reilly’s keynote speach at Transparency International Ireland’s Integrity at Work Conference 2017. The Conference aims to explore how law, policy and practice work together on whistleblowing and whistleblower protection.

Mr President, Distinguished guests, Ladies and gentlemen.

Let me begin by thanking Transparency International Ireland and John Devitt, in particular, for inviting me to address you this morning. I have to congratulate TI Ireland on the work it has been doing in this area and on its decision to convene this important event. I should also mention that Transparency International’s EU Office in Brussels has been particularly active on this topic in Brussels and encouraged my Office, among others, to do more to protect whistleblowers in the EU administration.

But before I talk about whistleblowing I want to share with you some reflections from a visit I made earlier this week to Denmark where I met with the Danish Ombudsman, some political and other senior administration officials as well as students, NGOs and academics.

Unlike this country, or indeed unlike many of the EU institutions, Denmark is relatively light touch when it comes to the regulation of what we consider to be ethical issues. They don’t have a lobbying register as we do, they don’t have rules on ‘revolving doors’ and neither do they have rules for the protection of whistleblowers. While their general administrative practices are heavily codified, this does not extend into some of the areas we are talking about today, areas in which we in Ireland have begun to strongly regulate in the last decade or so.

The first hint of the cultural disparity came when I was describing to a Danish journalists cases I had dealt with involving senior EU civil servants moving into the private sector at times into areas very close to those that had been regulating as civil servants. I also spoke about the case of former Commission President Barroso and his decision last year to take up a senior position with Goldman Sachs bank. ‘And what”, responded the journalist , ‘is wrong with any of that”.

And while of course he was playing to some extent devil’s advocate, the ‘what’s wrong with that’ mantra did stalk me during the rest of my Danish visit.

Later, during my visit to the Ombudsman and a number of senior civil servants working on good administrative practice in the Danish public service, I remarked on the absence of regulation in the areas I mentioned earlier. In a nutshell, I was told that this hasn’t happened because there is a high degree of trust in Danish society, a high degree of expectation the people will do their work in the public interest, and a belief that people’s skills and talents should be used wherever they are most needed at any particular time and if this means revolving between the public and private sector, then as long as no harm is seen to be done then there isn’t a problem.

I should say that a member of Transparency International who was also at the meeting wasn’t quite as starry eyed about the vision of Danish society laid before me but nonetheless when I was telling a student group later that day about the description of trust levels in Danish society, I noticed quite a lot of young heads nodding in agreement.

I don’t know enough about the inner workings of the Danish administration to assess any or all of that, but the fact remains that there was, at the very least, no sense of urgency in bringing in the sort of ethical reforms that we and others have brought in over the last while.

When I did, on the way home, scrutinise the Danish phenomenon a little more through some reading, I learned that trust is something that is a societal norm in Danish and other Nordic cultures, that it is something inculcated from infancy through the family and school systems and something that is hard to shift even when Danish people and others from those cultures migrate to vastly different ones. It is, like their DNA, something embedded. Trust, it has been written is the Danish gold.

And so I think that whenever we do consider issues such as whistleblowing, or conflicts of interests, or transparency , we need to reflect on the deeper forces that have pushed us into a time or a culture where we feel that the best way of making people behave is through the adoption of rules, is through tighter control. And while such controls are generally welcomed, as very often they emerge in response to a scandal, perhaps we should also feel uneasy that we have not yet become the sort of people who culturally, can be trusted to do the right thing. It also underlines of course the overarching importance of culture when it comes to evaluating the trustworthiness of a public institution, and that culture — good or bad — is invariably people by the people at the top.

I will talk this morning about the work my Office has done and continues to do to help protect whistleblowers who report serious irregularities in the EU institutions, bodies, offices and agencies. But let me start with a few thoughts about whistleblowing in general.

It might help to start out with something very simple:

“Everything you need to know about whistleblowing, you learned in kindergarten.”

This is according to Professor of Government at the University of Maryland, C Fred Alford, author of Whistleblowers: Broken Lives And Organizational Power and what he is trying to get across, I think, is that generally whistleblowers are driven by a simple, even innate, sense of right and wrong. Those of you with young children will often hear them talk about something being ‘fair’ or not ‘fair’. Sometimes they may not be able fully to articulate precisely why, they simply feel that something in their universe isn’t right.

Recent high-profile events across the globe have generated significant public interest in this issue but while the word conjures up deep political intrigue the day-to-day reality is often far removed from the drama of Julian Assange and Wikileaks or Edward Snowden or Chelsea Manning and is much more mundane.

We tend only to hear the stories of whistleblowers who are threatened with custodial sentences and large fines, whose careers lie in tatters, whose lives are ruined, families devastated.

Yet not every act of whistleblowing is calamitous for the whistleblower and I note that you have a session this afternoon entitled ‘Getting it Right”, during which participants will hear what I would hope are “success stories”” from the public, private and not-for-profit sectors.

There are risks, of course, that need to be suitably addressed but it’s a complex issue and acknowledging its complexity is vital. To be a whistleblower on one level is to cast oneself outside of your tribe, be it your personal, community or work tribe. The very act risks ostracisation and worse.

Colleagues of whistleblowers, even those not directly affected by his or her actions, are reported frequently to turn on the whistleblower, begging the question set out in an excellent 2014 article in the Guardian by Andrew Smith: “why do we idealise whistleblowers in the abstract, yet turn on them so readily in the flesh?“

Could it be the insecurity caused by the breaking of the unspoken community omerta? Is the threat to the institution seen also as a threat even to non involved individuals? In certain circumstances people are affected by the outcome of whistleblowing allegations even if they themselves personally have done nothing wrong.

Experience suggests that what frequently motivates an individual to come forward is simple loyalty to the institution allied to deep frustration that their concerns are not being adequately dealt with by those in charge. They feel therefore compelled to seek external help.

The challenge therefore is to prevent the need to drive the whistleblower out by developing structures not only to protect people who speak up about serious irregularities, but also to ensure that the substance of their complaint is fully investigated and that they are kept informed of what action will be taken to rectify the situation. And it is a challenge because it forces institutions to set aside institutional self-interest and to make some brave moves, which may have significant consequences for individuals and for the institution itself.

In 2014, one of my first strategic or own-initiative inquiries, after taking up office, covered whistleblowing.

The context, in part, was the EU’s first ever Anti-Corruption Report which noted that “[…] whistleblowing faces difficulties given the general reluctance to report such acts within one’s own organisation, and fear of retaliation. In this regard, building an integrity culture within each organisation, raising awareness, and creating effective protection mechanisms that would give confidence to potential whistleblowers are key […].”

The context was also shaped by new provisions in the EU Staff Rules covering all EU civil servants that entered into force in January 2014. These new provisions covered (i) the need to provide information to officials on the handling of matters reported by them; (ii) the protection of the legitimate interests of those officials and of their privacy; (iii) the procedure for handling of complaints by officials concerning the way they were treated.

Complaints

The importance of these particular provisions is evidenced by my experience in dealing with complaints from whistleblowers. Most cases I have dealt with come from individuals who allege that they have not been taken seriously enough, that their administration has not adequately followed up on their reports, that they have not been kept informed of any follow up action (in other words, they have no feedback as to whether they were right to blow the whistle in the first place or not) and that they have faced retaliation.

Let me give you two examples.

In the first, the complainant, an engineer, raised safety and conflict of interest concerns with the European Aviation Safety Authority (EASA) as regards a particular type of aircraft, the design of which he had been involved. EASA certified the aircraft but replied only to part of the complainant’s concerns.

During our inquiry, EASA provided the complainant with appropriate replies to some of his previously unanswered arguments. My Office nevertheless criticised EASA for not having adequately addressed the complainant’s concerns about the existence of a conflict of interest in the certification procedure. My Office also noted that EASA’s internal rules for handling whistleblower information only allow generic feedback to be provided to whistleblowers, which is insufficient. We encouraged EASA to amend those rules or interpret them in a way which ensures that whistleblowers receive meaningful feedback as regards the outcome of EASA investigations based on their concerns.

The second case also involved EASA but focused on the actions of the European Anti-Fraud Office (OLAF) after it received a whistleblowing report linking EASA to the alleged manipulation of an aviation security inspection report. Following a preliminary assessment, I was concerned about what appeared to be OLAF’s decision to dismiss the case and to refer the matter back to EASA despite the fact that the whistleblower had consciously chosen to make his report to OLAF rather than to the Aviation Safety Authority. I took the preliminary view that such a decision might impact negatively on the effectiveness of the whistleblowing provisions in general and decided to inquire into the matter.

Following an inspection of OLAF’s files, I noted that OLAF had appropriately considered whether to open an investigation. It also emerged that OLAF had not in fact closed the case but had asked the Aviation Safety Authority to examine the matter and to report back on the results of its investigation. Furthermore, OLAF had reserved the right to open a formal inquiry at a later stage. Against this background, I found that OLAF had dealt appropriately with the complainant’s whistleblowing report. I noted that OLAF should have informed the complainant more explicitly that its referral of the matter to EASA did not mean that OLAF would not be taking any further action on the matter and made this point to OLAF.

Internal rules

Given the Ombudsman’s experience dealing with complaints, I felt that it was particularly important for my Office to take the lead in giving effect to the new provisions in the EU Staff Rules.

In devising internal rules, my Office was guided by the following:

· An effective whistleblowing policy should deter and detect wrongdoing before it is too late.

· It should demonstrate that senior management wants to hear about concerns early and will respond appropriately.

· It should signal to staff the appropriate way to raise concerns.

· It should reassure staff that they will be protected if they raise concerns.

· It should indicate that there are safe external routes to raise concerns (in the case of the EU institutions that is first and foremost the European Anti-Fraud Office, OLAF).

· And it should reduce the risk of wider public disclosures.

I worked closely with staff in drawing up the rules. Our Staff Committee consulted all staff to help them feel ownership of the rules, so that staff understand them and feel confident in the protection they provide. We sought the advice of our internal Data Protection Officer and of the European Data Protection Supervisor. I then published the draft rules for public comment. After the public comments were reviewed, a staff meeting was held and the Staff Committee was informed again. As part of our efforts to inform and involve staff, we invited Nicole Marie Meyer from Transparency International France to our staff meeting to share her experience as a whistleblower in the French public administration and to explain the work she has been doing to improve the protection of whistleblowers in France.

The final version of the rules was adopted in February 2015 and is available on our website.

Our rules are intended to enable whistleblowers to fulfil their duty to speak up if they become aware of serious misconduct or wrongdoing within the Ombudsman’s Office, thus serving the public interest, by fostering integrity, transparency, accountability, and ultimately legitimacy in and of the Ombudsman’s Office.

The rules reflect the idea that integrity is an essential principle of the European civil service. The public expects members of staff of the EU institutions, bodies, offices and agencies to behave with the highest degree of integrity. Therefore, it is not only desirable, but essential that staff should report any reasonable suspicion of serious misconduct or wrongdoing within the Ombudsman’s Office.

The rules define the most important terms like whistleblower and serious misconduct. They set out, in detail, the procedure for whistleblowers to follow. They describe the rights a whistleblower enjoys, namely guidance and support, information guarantees, protection, confidentiality, mobility, appraisal and promotion and remedies. They mention penalties for individuals who retaliate against whistleblowers. Lastly, the Ombudsman’s rules contain articles on the abuse of the whistleblowing process, the rights of persons implicated, training and reporting, data protection and external whistleblowers.

Strategic inquiry

After launching the process to complete our own rules, I conducted an own-initiative investigation to see if nine EU institutions, including Parliament, the Commission, Council and the External Action Service, had taken similar action.

I noted that only the European Commission and the European Court of Auditors had adopted the necessary rules; when I closed the inquiry in February 2015, the other institutions were still in the process of preparing rules. In the meantime, the other 7 EU institutions introduced or updated the relevant rules.

With the rules and policies on whistleblowing now in place, we are now reflecting on the next steps. For example, one possibility could be to find out more about EU institutions’ experience implementing the rules as regards protecting its own staff in such circumstances.

Before I conclude, I should mention also that the European Parliament is currently debating and drafting a report on how to protect whistle-blowers when disclosing the confidential information of companies and public bodies in Europe. As we know, the protection of whistleblowers is not yet guaranteed in many EU Member States, and so the result is one of fragmented protection, which makes it difficult for them to find out their rights and how to blow the whistle, and creates legal insecurity in cross-border scenarios which are becoming more common. The draft report calls on the European Commission to present a legislative proposal to effectively protect whistleblowers in the EU. It also calls on the Member States to introduce an independent body responsible for collecting reports, verifying their credibility and guiding whistleblowers, particularly in the absence of a positive response from their organisation.

And the European Commission is listening to these concerns of the parliament and civil society, and launched earlier this year a public consultation on the benefits and drawbacks of whistleblower protection; to find out the elements that are important for effective whistleblower protection; to learn about problems arising both at national and EU level from gaps and weaknesses of existing whistleblower protection as well as on the need for minimum standards of protection. They should be publishing the results of this public consultation soon.

Finally, in March earlier this year the Commission also launched a new tool to make it easier for Europeans to alert the Commission about secret cartels and other antitrust violations. People can choose to give their names or to use a whistleblower tool which guarantees their anonymity. The Commission explains its decision with reference to the obvious value of insider information in alerting it to anti-competitive practices.

So in conclusion, I would say that citizen trust in the public sector cannot be achieved in an environment where those with information about fraud or corruption are afraid to speak up. By stating precisely what can be expected of staff at each stage of the process, and by training managers on how properly to deal with the reported information, each person in the chain is afforded both certainty and protection.

Whistleblowers play an essential role in helping any type of organisation to deter breaches of the principle of integrity as well as to detect any breaches that may occur. They act as canaries in the mine, signalling danger so that others can be protected. Of course, if the poison in the mine is really bad, the canary often meets a sad end. So the real job is to prevent the build up of poison in an organisation in the first place.

Let me congratulate TI Ireland once again on this important initiative and I trust that you will have an enriching day of discussion.

Thank you.