Monday

21st Jan 2019

Opinion

Whistleblowers should be celebrated not persecuted

  • Whistleblowers are "the most important weapon in the fight against corruption", says Transparency International. (Photo: Michael Fleshman)

The term “whistleblower” brings to mind a dishevelled Al Pacino as Frank Serpico, a cop, who though ostracised and beaten up by his colleagues, exposed corruption in the New York Police Department in the 1970s.

In a recent interview, the real Serpico told the New York Times: “No matter how big or how much corruption there is, it’s never greater than the individual or the might of doing the right thing.”

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  • Luxembourg prosecutors are seeking 18-month jail terms for whistleblowers on trial over the "LuxLeaks" scandal. (Photo: Chris Tolworthy)

Unfortunately, doing the right thing still comes at a price.

The debate over Edward Snowden and Chelsea Manning in the US is ongoing - and in Europe, this week, there is a milestone court decision coming up.

Though Antoine Deltour, a former PriceWaterhouseCoopers employee, his former colleague Raphael Halet and Edouard Perrin, a journalist, haven’t faced a bullet like Serpico, they could face jail time for exposing tax avoidance at multinational companies in the LuxLeaks scandal.

Without sufficient legal protections and reliable avenues to report wrongdoing, employees throughout Europe face being fired, demoted or harassed if they expose corruption and other crimes.

On trial in Luxembourg

The LuxLeaks three are on trial for leaking or publishing documents that showed how the government of Luxembourg colluded with more than 300 multinational companies to lower corporate tax bills. The sweetheart deals deprived many countries of much needed tax revenues that could have been used to support public services.

Some of these tax arrangements – for instance the one granted to Fiat Chrysler – have since been ruled to be illegal state aid by the European Commission because they distort competition. Already the European Union is trying to close loopholes.

Clearly what Deltour and the others did was in the public interest. On Wednesday (29 June), however, they will receive a verdict and sentence from a court in Luxembourg that is prosecuting them for stealing private information. The prosecutor in the case is demanding 18 months of jail time for the former PwC employees and an unspecified fine for Perrin.

In the 18 months following LuxLeaks, more progress has been achieved on corporate tax transparency than in the last 10 years. Recently, the commission has taken steps on legislative proposals including the exchange of information on tax rulings between member states, measures aimed at tackling corporate tax avoidance and public country-by-country reporting.

Unfortunately, the legal side of protecting the whistleblowers has been less impressive.

Low priority

Despite mass support for Deltour from the public – there are more than 200,000 signatures on the petition – as well as European commissioners and NGOs for revealing flaws in the global financial system, current legislation in Luxembourg does not protect people like him from being prosecuted.

Whistleblower protection legislation is weak in many European countries, non-existent in some and a low priority everywhere.

This is a travesty. Whistleblowers should be supported and not persecuted; they are the most important weapon in the fight against corruption. But in a study, we found that only four countries out of the 23 we looked provided rudimentary protection for whistleblowers.

There has been some progress in recent years: Ireland and Netherlands have approved related legislation. Nevertheless, the picture is still dire in most EU countries.

The EU needs to enforce the Charter of Fundamental Rights, which lays a clear basis for whistleblower protection by supporting freedom of expression, protection from unjustified dismissal and a right to effective remedies.

It’s not as if we don’t know what good laws to protect whistleblowers should look like: We have published what we believe are the best-practice international guidelines, and multilateral institutions like the Council of Europe and the OECD have come up with similar guidance.

Ironically, given that Antoine Deltour is French and the French government has spoken out about having good whistleblower protection, the law going through the French legislature at the moment is not fit for purpose.

Transparency International France, along with other French civil society organisations, has launched a petition to give it some backbone.

Until we have really strong whistleblower protection across Europe, those who wish to expose wrongdoing should heed the words of Frank Serpico: “You have to go up against the odds to do the right thing.” Under current conditions, it’s hard to see too many people coming forward.

But in the fight against corruption, it is ordinary people who see wrongdoing who are the most important link to exposing that wrongdoing.

Carl Dolan is director of the Transparency International EU Office

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