Greens propose new whistle-blower protection law for Belgium

Update 15/02/2017. The European Parliament yesterday voted to call on the European Commission to develop an “effective and comprehensive European whistle-blower protection programme”. Read more here: http://www.europarl.europa.eu/news/en/news-room/20170210IPR61823/meps-call-for-eu-wide-protection-for-whistle-blowers

Two NUJ Brussels branch officers attended a Brussels round-table on whistle-blower protection organised by the Belgian Groen and Ecolo parties on 21 December 2016. Groen and Ecolo (Belgium’s two green parties) are proposing a federal law to protect whistle-blowers in the private sector (there is already legislation affecting the public sector). The branch officers reported as follows.

Around 22 people attended in addition to the organisers, including representatives from: trade unions, Test Achats (consumer organisation), legal profession, academia, a magistrate from a magistrates’ association, a rep from the Ligue des Droits de l’Homme, two people from the Federal Ombudsman’s office, a Transparency International Belgium rep and a few others, including an ex-Belgian civil service whistle-blower and someone involved in a website to do with whatdotheyknow in the UK.

The “star” whistle-blower was David Renous, formerly with Omega Diamonds, who recounted his own experiences, some of which have been published elsewhere. Some of what he said may be actionable, if probably true. His attempts to do deals with the Belgian justice system suffered from both structural/legal problems and backroom pressures, including a failure to protect his identity.

Renous feels he did better with FBI and owes his life to them. He also fell victim to pressures in areas of his life that, strictly, had nothing to do with Omega. He came back to Belgium in Jan. 2012. He also referred to a Court of Human Rights judgements in relation to Romania (2013) and Turkey (2011) that we have not checked out.

Wim Vandekerkhove, a London-based Flemish academic, has published in English a very recent report for Public Services International, along with Tom Devine. This would appear to be the document he referred to:
http://www.world-psi.org/sites/default/files/documents/research/en_whistleblower_protection.pdf

He made the point that the issue is not just about corruption, but about a human right, although one that needs to be balanced with other rights. It needs to be seen in the context of work relationships. Legislation in most countries is too restrictive, generally only including employees – which is important now that many are not “standard” employees, including where work is contracted out (cf. Snowden).

Three tiers need to be provided for: 1) raising issues internally, protection from retaliation; 2) a regulator, representing the public interest – needs to be strong; 3) Media: it must be possible to force regulators to do their job. Parliaments are likely to favour No. 2.

Legislation should not address motives. It should be enough if the whistle-blower has a “reasonable belief” that something is true and that it is in the public interest to know about it. “Public interest”, however, needs to be broadened to include the spirit of the law. UK legislation in 1998 was progressive, but later legislation in Ireland (2014) and Serbia was better. Devine, he recalled, stresses that the burden of proof should be on the employer.

Laura Rottiers has authored a Master’s dissertation on the subject, with a particular focus on Belgium and Belgian law. Key concepts: whistle-blower has no explicit mandate, no personal gain, need to use internal procedure.

Existing Belgian law on freedom of expression doesn’t deal with whistle-blowers, but some provisions (also some provisions in labour law) are relevant and usable. (Belgian law of 10 May 2007 re discrimination is relevant).

The European Court judgement on 21 July 2011 (Heinisch case – see, e.g., http://www.epac-eacn.org/news/latest-news/36-unanimous-judgement-on-whistle-blowing-by-the-ehcr) sets out the framework. This related to an employee of an old folks’ home in Germany – who went to the European Commission because of a lack of German legislation.

There is a need for internal procedures in the private sector: the law must create a framework. She saw sectoral agreements between employers and employees as needed to supplement the law – but the trade union representative later disagreed strongly – he made the point that within a sector, workers and their employees may share an interest that is not, in fact, in the general interest of society.

An MEP (Ecolo?) urged avoidance of setting a restrictive framework of procedures to be followed by whistle-blowers, referring to ten years of trying to make progress against opposition from the majority in the Parliament. Referred to US model and to the need for a fund to help whistle-blowers. The general interest should be defined as European, not restricted to an individual state.

A Namur-based academic said a new law should provide for customers, not just “employees”. Also stressed need for an institution to oversee: new law wouldn’t work without it.

The branch secretary of NUJ Brussels (which had been invited to attend) outlined NUJ concerns: the need to include journalists, that the problem is multinational, a need for European legislation, need for protection of employees, stress on good governance, issues of corruption.

A representative from Belgian Federal Ombudsman’s office said they had no real experience yet of how the 2014 law works in practice [we think this refers to public service employees – have not checked). He stressed confidentiality as crucial.

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