General Assembly 4: Special Political and Decolonisation. Whistleblower protection policy. Kerem Üzdiyen & Kaan Özdemir

Transcription

1 General Assembly 4: Special Political and Decolonisation Whistleblower protection policy Kerem Üzdiyen & Kaan Özdemir Alman Lisesi Model United Nations 2017

2 Committee: General Assembly 4 (Special Political and Decolonisation) Issue: Student Officer: Position: Whistleblower protection policy Kerem Üzdiyen President Chair Introduction Today, we live in a society where keeping information confidential seems to be the norm for all nations and organisations. In this world, one task becomes crucial to keep society informed and ensure efficiency of law enforcement. That task is whistleblowing. A whistleblower is defined as someone who exposes any information or activity that is illegal or incorrect within an organisation or a nation. Whistleblowers can reach out to media, government or law enforcement through many different ways. This is a highly efficient way for these organisations to reach information on cases. It is a relatively new concept for many and people have extremely different opinions on it. Before discussing those views, it is important to realise that there are many different types of whistleblowing activity. Firstly, there are passive and active whistleblowers, as classified by Daniel P. Westman. While passive whistleblowers do the act based on a request by law enforcement, active whistleblowers disclose a previously unknown case. Passive whistleblowing is more common than active whistleblowing, as it has better incentives and is seen as a more innocent act by the society. There is also the categorisation between third-party and internal whistleblowers. This is the distinction between whistleblowers from outside and inside organisations, and for this topic, we will mostly talk about internal whistleblowers. Finally, there are Federal Whistleblowers and Corporate Whistleblowers. Federal whistleblowers expose public sector information, while Corporate Whistleblowers are workers of private businesses who report misconduct made by their company to the authorities. Therefore, both types get different reactions in the public eye. For the public sector, this mostly comes down to the differences between pro-government control and anti-government control ideologies. As it has become a norm for nearly all government to keep most information private from citizens, whistleblowing is not favoured by governments. Those who share confidential federal information are therefore seen as traitors by pro-government parties and heroes by antigovernment parties. On the other hand, private sector whistleblowing is encouraged by government institutions. However, lack of incentives and problems whistleblowers face later in their careers means that whistleblowers in this field face many roadblocks. Whistleblowers are not seen as loyal workers, and in addition to unsurprisingly getting terminated from the job they already have, they have a hard time getting new jobs. To get a better idea of what kind of struggles whistleblowers face, we can look at the Edward Snowden incident, one of the biggest events concerning a whistleblower in recent history. Snowden is a former NSA contractor, who decided the job he was doing with the government was doing more harm than good when working in the CIA. After seeing the change of government didn t change government policies, he revealed great internet and phone surveillance by US intelligence and left the US for Hong Kong. After the US had charged Snowden with theft of government property, unauthorised communication of national defence information and wilful communication of classified communications intelligence, the US asked ALMUN 2017 Study Guide - GA4: Special Political and Decolonisation 1

3 for extradition and Snowden fled to Russia where he now lives in a secret location. Even though some people regard him as a hero, his government sees him as a traitor who committed treason. Because of the way they are treated by law enforcement, very few people are willing to do the necessary task of Federal Whistleblowing. When tackling the topic of Increasing opportunities for whistleblowing actions and protecting the whistleblowers", it is important to realise that the issue is seen very differently by all member nations. But it is important to realise that whistleblowing does carry substantial importance in an era where information is so easily reachable. For a nation, whistleblowing in public sector ensures that the government runs as smooth as possible while maintaining transparency. It also makes sure that the people are knowledgeable about their government. This is especially vital for democracy. For businesses, early reporting of misconduct limits their financial and reputation risk. Inappropriate workplace behaviour is caught, loss of revenue to fraud is detected, good corporate governance is maintained, the workplace becomes safer, all thanks to whistleblowing. These are reasons why we should try to increase opportunities for whistleblowing actions. To blow the whistle inevitably means suspension... It means seclusion, suspicion and colleagues put under huge pressure to take sides. The evidence shows that most whistleblowers lose their jobs, For employees, there just aren't enough incentives to become a whistleblower, and those who are brave enough are not getting the protection they deserve by law enforcement. Some laws may have been put in place to protect whistleblowers, but they are not adequate and more effective laws must be implemented. Definition of Key Terms Whistleblower: A whistleblower is anyone who has and reports insider knowledge of illegal activities occurring in an organisation. Whistleblowers can be employees, suppliers, contractors, clients or any individual who somehow becomes aware of illegal activities taking place in business either through witnessing the behaviour or being told about it. Retaliation: Punishment of an employee by an employer for engaging in legally protected activity such as making a complaint of harassment or participating in workplace investigations. Retaliation can include any negative job action, such as demotion, discipline, firing, salary reduction, or job or shift reassignment. Misconduct: In law, misconduct is wrongful, improper, or unlawful conduct motivated by a premeditated or intentional purpose or by obstinate indifference to the consequences of one's acts. Misconduct can be considered an unacceptable or improper behaviour, especially or professional person. Law Enforcement: Law enforcement is any system by which some members of society act in an organised manner to enforce the law by discovering, deterring, rehabilitating, or punishing people who violate the rules and norms governing that society. Although the term may encompass entities such as courts and prisons, it is most frequently applied to those who directly engage in patrols or surveillance to dissuade and discover criminal activity, and those who investigate crimes and apprehend offenders, a task typically carried out by the police or another law enforcement agency. ALMUN 2017 Study Guide - GA4: Special Political and Decolonisation 2

4 Fraud: Deliberately deceiving someone else with ways such as mispresenting a fact with the intent of causing damage. This damage doesn t need to be physical harm, in fact, it is often financial. Transparency: A lack of any hidden agendas with all information being available. A situation when the degree of disclosure is the minimum for all verified agreements, practices and dealings. It is the required condition for an open and free exchange Corruption: Generally speaking as the abuse of entrusted power for private gain. Corruption can be classified as grand, petty and political, depending on the amounts of money lost and the sector where it occurs. Grand corruption consists of acts committed at a high level of government that distort policies or the central functioning of the state, enabling leaders to benefit at the expense of the public good. Petty corruption refers to everyday abuse of entrusted power by low- and mid-level public officials in their interactions with ordinary citizens, who often are trying to access basic goods or services in places like hospitals, schools, police departments and other agencies. Political corruption is a manipulation of policies, institutions and rules of procedure in the allocation of resources and financing by political decision makers, who abuse their position to sustain their power, status and wealth. Incentive: Something that motivates or encourages someone to do an act. Disclosure: Making new or secret information known. Major Parties Involved Australia: Protection is only offered for some corporate disclosures. At the federal level, whistleblowers face possible imprisonment for making disclosures about certain subjects such as national security and immigration. Laws are different depending on states. Tony Lauer, a former Police Commissioner, summed up official government and police attitudes as: "Nobody in Australia much likes whistleblowers, particularly in an organisation like the police or the government." To oppose this approach, there is an association called Whistleblowers Australia for those who have exposed corruption or any form of misconduct, especially if they were then hindered or abused. Canada: The Office of the Public Sector Integrity Commissioner of Canada (PSIC) provides a safe mechanism enabling public workers and the general public to disclose misconduct committed in the public sector. It also protects employees who have disclosed wrongdoing and those who have cooperated in investigations from retaliation. The Office's goal is stated as enhancing public confidence in Canada's federal public institutions and the integrity of its public workers. Mandated by the Public Servants Disclosure Protection Act, PSIC is a permanent and independent Agent of Parliament. The Act, which came into force in 2007, applies to most of the federal public sector. This includes government departments and agencies and other national public sector bodies. The Act also established the Public Servants Disclosure Protection Tribunal (PSDPT) to protect public workers from hearing retaliation complaints referred by the PSIC. The Tribunal can grant remedies for complainants and order disciplinary action against persons who take reprisals. The Canadian model is one that can be taken into consideration when finding a universal model to protect federal whistleblowers. ALMUN 2017 Study Guide - GA4: Special Political and Decolonisation 3

5 Switzerland: Swiss Council of States agreed to a change of the Swiss Code of Obligations in The amendment introduces an obligation for employees to report misconduct to their employer first and only directly report to an authority if they can prove that the employer would be ineffective or there is a direct and severe health, safety or environmental hazard. However, the amendment does not improve on protection against retaliation for employees who report misconduct to their employer. The amendment does not aid employees anonymously filing their observations of irregularities. United Kingdom: Whistleblowing in the UK has so far been covered by the Public Interest Disclosure Act that was introduced in As a result of the Act, many businesses have instituted whistleblowing procedures, although only 38 percent of individuals surveyed worked for a company with such proceedings. The problems with the Act are that it fails to force businesses to implement such procedures, does not prevent the "blacklisting" of whistleblowers and does not preclude whistleblowers whose allegation turned out to be false. A report called Freedom to Speak Up Review on whistleblowing in the National Health Service was also published in It tries to make raising issues a standard part of a well-led NHS organisation, eradicate bullying in work environment, train employees on whistleblowing, designate someone that takes reports on misconduct from employees and help whistleblowers find alternative jobs if they cannot continue their current job. United States: In the United States, legal protections differ according to the matter of the whistleblowing. Still, a variety of federal laws protect employees who call attention to violations, help with law enforcement proceedings, or refuse to obey unlawful directions. However, the Espionage Act causes whistleblowers to be unjustly trialled for treason because the Act is so broadly written. Whistleblowers such as Edward Snowden and Chelsea Manning have been convicted of violating this law. European Court of Human Rights: In 2008, it was ruled that whistleblowing was protected as freedom of expression. Whistleblowing International Network: WIN connects civil society organisations and NGOs from all around the world working to defend and support whistleblowers. They provide counselling, tools, and expertise needed by those working in different countries to address corruption, waste, fraud, abuse, illegality and threats to the public good. They want to protect the interest of those at risk. They believe transparency in public institutions is vital to ensure they are accountable to the citizens they are meant to serve and protect and that accountability extends beyond government institutions, to private companies and to charitable organisations on whom the public also rely on. They want to make sure individuals speak up knowing the consequences and awards of doing so. They support the freedom to reach information and free speech. In addition to many other things, they want to ensure that no federal or private organisation is acting above the rule of law. The WIN should be used for help in solving this issue. Background The practice of whistleblowing goes back to the United Kingdom in the 1800s when the government, in the form of local unarmed police would "blow the whistle" so that good citizen could be alerted to help chase and capture pickpockets and shoplifters. Whistleblowing done by ALMUN 2017 Study Guide - GA4: Special Political and Decolonisation 4

6 local police was copied by local shopkeepers who themselves began to carry whistles around their necks. Whistleblowers were now alerting the cops about crimes. The use of whistles soon spread out to the US. Some claim that the word was first used by Ralph Nader as a replacement of "snitch". The term "whistleblower" is considered neutral, because most of the other words used to describe exposing misconduct carry a negative meaning, e.g. "snitch". This is because integrity has been made to look like a bad habit by many big corporations. Never mind external whistleblowers who almost always end up getting terminated, internal whistleblowers are always getting humiliated and isolated by the companies when they should be getting Employee of the Month awards instead. The paragraph above was the history of the word whistleblowing, but how did the action come about and how did it change through the years? Governments spend massive sums on areas such as healthcare, infrastructure and military to keep their nation running safely and efficiently. Corrupt individuals and businesses, even in the government sometimes, take advantage of the government by stealing, cheating or overbilling to maximise their profits. Because this is so hard to detect, governments have relied on individuals, who are now called "whistleblowers" to report on corruption and misconduct. This was being done by lawmakers as early as the 7 th century, and the fundamental principle of rewarding the individual with some part of what they uncovered stays the same. The term qui tam, which translates into suing a corrupt organisation or individual on behalf of your government, came up back then in England. In the next few centuries, people would make qui tam cases, and if their claims turned out to be true, they would get bounties as rewards. However, those were the days when extremely few people realised that the government itself could also be corrupt. As what we see as the peak of civilisation shifted from Europe to America, the history of whistleblowing also did. What we know of as the key events concerning whistleblowing mostly occurred in the United States. The first whistleblower in American history was the famous Benjamin Franklin, who exposed a governor for misleading the Parliament. However, the incentives given to whistleblowers were still the same with qui tam cases of a thousand years ago. Soon, these laws would stop being used until the Civil War of As war profiteering and fraud hurt both the Union and Confederacy, the Congress passed the False Claims Act (FCA) in It followed the same logic; individuals would be allowed to sue those engaged in fraud on behalf of the government and receive half the money that was recovered. As Departments of Justice took over in most nations and corruption led to criminal penalties rather than civil cases, whistleblowing declined. Because so many people wanted to open cases that the government itself was already taking care of, the bounty was removed from FCA, and qui tam cases disappeared because of a lack of incentive. In 1948, the Universal Declaration of Human Rights was adopted by the General Assembly (GA). However, it didn't offer much help to whistleblowers as the action had become so uncommon by then. But as military spending increased once again in the 1980s because of the Cold War, massive sums of money was being spent with little oversight. The government barely realised that its contractors were guilty of fraud. This led to the FCA to be amended once again with restoring the original rewards and putting up better protection. Since then many nations have tried putting up such laws, but most still prove inadequate. Worse yet, laws such as the Espionage Act in the US make Federal Whistleblowing nearly impossible. But whistleblowing is becoming more and more vital with each passing day, and the progression that is being made in ALMUN 2017 Study Guide - GA4: Special Political and Decolonisation 5

7 more developed nations need to be sped up and should be followed on by the less developed countries. Past Relevant Resolutions There is a UN Secretary-General Bulletin on the protection of whistleblowers called ST/ SGB/2017/2, which was published in January It is a set of guidelines by the SG to protect whistleblowers. mentions whistleblowing but isn t entirely on it. takes measures towards an accountability system and takes steps such as protection against retaliation. However, the resolution only manages to take small steps. There are mostly clauses about whistleblowers in UN resolutions, and there aren't many large UN documents except the UN whistleblower policy that tackles this issue. Many nations see whistleblowing, especially public sector whistleblowing, as a national issue and do not want to be influenced by other countries in making decisions on this matter. This can be seen as a reason why there aren't many UN resolutions tackling the issue. Measures Already Taken There are two types of measures used to increase whistleblowing opportunities and protect whistleblowers' rights. There are national laws and internationally accepted methods. More and more nations are passing laws on whistleblowers with passing time, but the US and UK are still seen as leaders in this area. The United Kingdom passed the Public Interest Disclosure Act in 1998, which has been amended many times since then. It attempts to protect workers from detrimental treatment or victimisation from their employer if, in the public interest, they blow the whistle on wrongdoing. However, the term public interest is debatable when it comes to federal whistleblowing. The US passed many important laws on this issue. In 1970, they passed the Occupational Safety and Health Act which governs health and safety standards in the US. They created OSHA, which is charged with the protection of whistleblowers who report legal violations under the act. The Act prohibits retaliation against whistleblowers who report safety and health-related workplace or environmental violations by an employer. There is also obviously the False Claims Act, which we previously mentioned and has been a very effective Act with its rewards. Then, there is the Sarbanes-Oxley Act of 2002, which contains significant protections for corporate whistleblowers. It mandates the implementation of anonymous whistleblowing channels as one of its critical sections along with specifying internal whistleblowing as an appropriate way of reporting misconduct. The laws in the United States and the United Kingdom can be taken as significant but still inadequate. Internationally accepted methods of encouraging whistleblowing include whistleblowing programs and ALMUN 2017 Study Guide - GA4: Special Political and Decolonisation 6

8 policies by companies. However many companies do not use these because they are not aware that it will benefit them in the long run. A way to protect whistleblowers are the encryption methods employed by those at risk as a way of hiding themselves from those they are exposing by keeping themselves anonymous. Questions a Resolution Should Cover Will the solutions I offer change whistleblowing policies in the long-run? If I am providing short-term solutions, will they make an instant impact? Will member nations be willing to implement the decisions taken in the committee? Will governments be willing to sacrifice their national confidentiality? Am I putting the benefits of whistleblowers as a priority? Will my solutions help the public interest or just work as ways to increase whistleblowing or protect whistleblowers? Are my solutions infringing national sovereignty? What kind of economic consequences will my solutions create? Are my solutions realistic? Possible Solutions First and foremost, it must be realised that most of the public does not understand the issue of whistleblowing and both individuals and businesses prefer to refrain from whistleblowing. It is crucial to raise awareness on the issue of illegal activity being hidden from the public as confidential information. In addition to this, the society must understand a whistleblower is not a "snitch", but someone who wants to protect the public interest. That person is loyal to the public, not just one organisation. And if a whistleblower is exposing their government, it makes them a patriot because the government is temporary, people are permanent. These messages would make people better understand whistleblowing and promote it. It is also vital to make companies realise that whistleblowing programs, especially internal whistleblowing, will help the enterprises in the long run. Employees must be encouraged to bring the illegal action they realise upon their employers. A proper "stand up" culture should be created in the world. If whistleblowing were seen as a norm, it would be aided and protected. Workers should also be trained to stand up for their rights and beliefs from a young age. Retaliation against whistleblowers must be clearly disallowed. Encryption methods that ensure the anonymity of whistleblowers such be developed upon as they can still be broken through. Lastly, NGO's regarding the issue of whistleblowing should be put to good use and should be appropriately funded. ALMUN 2017 Study Guide - GA4: Special Political and Decolonisation 7

9 Bibliography Westman, Daniel P., and Schulman Janie F. Whistleblowing: The Law of Retaliatory Discharge. Arlington, VA: Bureau of National Affairs, "Profile: Edward Snowden." BBC News. December 16, Accessed April 03, "Benefits of Whistleblowing Programs." Your Call. Accessed April 03, Kline, Daniel. "Hear It From Employees First: Why Managers Should Encourage Whistleblowers." Benefits of Whistleblowing in the Workplace NAVEX Global. June 11, Accessed April 03, "Whistleblower." Wikipedia. March 29, Accessed April 04, wiki/whistleblower. "Whistleblowing International Network." Whistleblowing International Network. Accessed April 04, "What's the Origin of the Term "Whistleblower"?" Taxpayers Against Fraud Education Fund. Accessed April 06, "The History Of Whistleblowing in America." Whistleblowers International. Accessed April 06, "A Timeline of US Whistleblowers." A Timeline of US Whistleblowers GAP. Accessed April 06, Staff, Investopedia. "Whistleblower." Investopedia. July 30, Accessed April 06, Anonymous. "Retaliation." LII / Legal Information Institute. August 19, Accessed April 06, "Misconduct." Wikipedia. March 25, Accessed April 06, Misconduct. "Law Enforcement." Wikipedia. March 31, Accessed April 06, wiki/law_enforcement. Carlson, Mr. David. "Fraud." LII / Legal Information Institute. July 01, Accessed April 06, "What Is TRANSPARENCY? Definition of TRANSPARENCY (Black's Law Dictionary)." The Law Dictionary. March 02, Accessed April 06, E.V., Transparency International. "Thank You for Donating To Transparency International!" Transparency International - What Is Corruption? Accessed April 06, ALMUN 2017 Study Guide - GA4: Special Political and Decolonisation 8

10 "Ethics, Integrity, Accountability, Transparency, Respect, Fairness, Justice, Moral Code, Rules of Conduct, Standards, Righteousness, Rightfulness, Values, Discipline." United Nations. Accessed April 07, "The Public Interest Disclosure Act." The Public Interest Disclosure Act - GOV.UK. Accessed April 07, "Overview of Federal Whistleblower Regulations." Association of Corporate Counsel. Accessed April 07, University, Santa Clara. "Encouraging Internal Whistleblowing in Organizations." Resources - Business Ethics - Focus Areas - Markkula Center for Applied Ethics - Santa Clara University. Accessed April 07, encouraging-internal-whistleblowing/ ALMUN 2017 Study Guide - GA4: Special Political and Decolonisation 9