In defence of whistleblowers

The European Commission is hoping to launch a directive to protect whistleblowers. Molly Scott Cato explains why this would protect us all.

This week the European Commission launched a proposal on a directive to protect whistleblowers and we have a coalition of NGOs, trade unions, journalists and progressive politicians to thank for making this happen.

Let’s for a moment imagine a world without whistleblowers, those people who have heroically taken a stand against the rich and the powerful.

Without the patriotism of Shahmir Sanni we couldn’t know that two cabinet ministers are implicated in a breach of the funding rules by the Vote Leave campaign. If it weren’t for the courage of Chris Wylie we’d be ignorant on how data was stolen from Facebook and used to manipulate people’s inner fears in a way that probably turned the Brexit vote. Without the Panama Papers exposing how Nawaz Sharif embezzled public money and gave it to his children to buy posh flats in London, he might still be Prime Minister of Pakistan. And then there is perhaps the best known and most widely reported whistleblower, Antoine Deltour, who courageously spilled the beans about sweetheart tax deals in Luxembourg.

Let’s also imagine examples of embezzlement, criminality, and electoral manipulation we don’t know about because the people who had the incriminating information did not have the courage to come forward to report it. Given recent events, we can only guess what might happen to anybody blowing the whistle on the nefarious ‘business’ activities of Russian oligarchs.

Greens in Europe have been pushing for EU-wide law to protect those who release information in the public interest, going as far as drafting our own directive on protecting whistleblowers. Now the Commission have come forward with their own proposal which acknowledges whistleblowers as essential in ensuring the proper application of EU law. It proposes EU-wide protection for blowing the whistle on breaches of legislation in areas such as financial services, money laundering, terrorist financing and data protection.

However, experience shows that this directive needs to go further. Two key recommendations from the Greens have not found their way into the draft legislation.

First there is the presumption that any revelations should first be raised internally with the employer before public disclosure. We can just imagine the conversation Shahmir Sanni might have had with his boss Matthew Elliott upon realizing he was being used as a patsy for illegal funding breaches, had he first to report his discoveries internally before making them public.

To emphasis the point, since revealing this information, which should be considered essential to protecting British democracy, Sanni has been sacked from his job at the Taxpayers’ Alliance. And who is the founder of this think tank campaigning for a low tax society? None other than archetypal Brexit bad boy Mathew Elliot, former CEO of Vote Leave.

Corruption rests on unequal power relationships; if whistleblowers could trust the organisation on whom they hold information they wouldn’t need to blow the whistle in the first place.

A second key requirement absent from the Commission’s proposal is the need to impose the burden of proof on the organisations whose data has been revealed rather than on whistleblowers themselves. It should be for the company or public body to show that the leak or disclosure was not of public importance.

The case of Hervé Falciani who leaked data on 100,000 HSBC Swiss bank accounts is instructive here. He believed these accounts, belonging to wealthy clients, were being used to launder the proceeds of drug trafficking and blood diamonds and to avoid paying tax. Falciani was recently sentenced to five years in jail for industrial espionage by a Swiss court. If we had EU-wide whistleblower protection which placed the onus on the organisation rather than the whistleblower it would be down to HSBC to prove that Falciani’s revelations would be against the public interest. Well, good luck with that HSBC. This is a live issue and a petition to support Falciani has close to 30,000 signatures.

Of course, as the UK prepares to leave the EU we don’t know what protection the UK will offer those disclosing information in the public interest. Some argue for a National Office for the Whistleblower with statutory powers to oversee all regulatory bodies dealing with cases of whistleblowing and offer protection, advise and support to those blowing the whistle.

Whistleblowers are the people’s champions defending all of us from corrupting forces. No wonder the rich and powerful fear whistleblower protection.

They also defend democracy by uncovering secrecy and exposing information that has led to a breakdown of trust between democratic representatives and those who vote for them.

They deserve not just our gratitude but also the strongest possible legal protection available.

Molly Scott Cato MEP is Green MEP for the South West and a member of the European Parliament’s special committee on financial crimes, tax evasion and tax avoidance.

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