Whistleblowing from an international perspective: A comparative analysis of institutional arrangements

Loyens, Kim; Vandekerckhove, Wim Article Whistleblowing from an international perspective: A comparative analysis of institutional arrangements Administrative Sciences Provided in Cooperation with: MDPI – Multidisciplinary Digital Publishing Institute, Basel Suggested Citation: Loyens, Kim; Vandekerckhove, Wim (2018) : Whistleblowing from an international perspective: A comparative analysis of institutional arrangements, Administrative Sciences, ISSN 2076-3387, MDPI, Basel, Vol. 8, Iss. 3, pp. 1-16, https://doi.org/10.3390/admsci8030030 This Version is available at: https://hdl.handle.net/10419/239846 Standard-Nutzungsbedingungen: Die Dokumente auf EconStor dürfen zu eigenen wissenschaftlichen Zwecken und zum Privatgebrauch gespeichert und kopiert werden. Sie dürfen die Dokumente nicht für öffentliche oder kommerzielle Zwecke vervielfältigen, öffentlich ausstellen, öffentlich zugänglich machen, vertreiben oder anderweitig nutzen. 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If the documents have been made available under an Open Content Licence (especially Creative Commons Licences), you may exercise further usage rights as specified in the indicated licence. https://creativecommons.org/licenses/by/4.0/ administrative sciences Article Whistleblowing from an International Perspective: A Comparative Analysis of Institutional Arrangements Kim Loyens 1,*ID and Wim Vandekerckhove 2 1School of Governance, Utrecht University, Bijlhouwerstraat 6, 3511 ZC Utrecht, The Netherlands 2Department of Human Resources and Organisational Behaviour, University of Greenwich, London SE10 9LS, UK; [email protected] *Correspondence: [email protected] Received: 27 April 2018; Accepted: 2 July 2018; Published: 5 July 2018   Abstract: While there appears to be consensus amongst policy makers that legislation to protect whistleblowers is needed, the emerging policy question addresses what institutional framework is most fit to implement whistleblowing legislation. However, the institutions to whom whistleblowers report—which are in the literature addressed as internal or external recipients of whistleblowing concerns—have been given limited scholarly attention. Research has instead focused on motives, behaviour, and experiences of whistleblowers on the one hand, and whistleblowing legislation on the other. Particularly the role of external agencies, like ombudsmen, anti-corruption agencies, and Inspector General offices, in dealing with whistleblowing concerns has been under-studied. With the aim of starting to fill this research gap, this paper reports the findings of a comparative study of governmental whistleblowing agencies (other than courts) and non-governmental whistleblowing protection organizations (NGOs), as important examples of external recipients of whistleblowing concerns, in 11 countries with whistleblowing legislation. The study aimed to find similarities and differences between these agencies, and to identify challenges and dilemmas that the installation of whistleblowing agencies bring about. Data collection was done by means of 21 interviews with academic experts and high-ranking officials within the selected countries, and in-depth analysis of available (policy) documents and reports. This paper finds that in the studied countries, there is a trend to install governmental whistleblowing agencies that combine various tasks to implement whistleblowing legislation (e.g., advice, psychosocial care, investigation of wrongdoing or retaliation, and prevention of wrongdoing). When such agencies are absent or considered weak, NGOs may step in to fill the need. Whereas most governmental whistleblowing agencies have investigative tasks, in Belgium and in the Netherlands, investigations of wrongdoing and retaliation are done within the same department for the reason that these issues cannot be easily separated. Other agencies have separated these tasks to avoid conflict of interest or because different expertise is claimed to be needed for both. Further research is needed to analyze the effects of each institutional approach, and how to avoid conflict of interest, particularly the risk of partial investigations of wrongdoing. Our study also shows that while not many countries provide government funds for specific psychosocial care for whistleblowers, most governmental whistleblowing agencies do give advice to whistleblowers and invest in the prevention of wrongdoing or training of those who implement whistleblowing legislation. While providing important insights into the role of whistleblowing agencies in 11 countries, this study also develops questions for further research. Keywords: whistleblowing; institutions; reporting wrongdoing; comparative study Adm. Sci. 2018,8, 30; doi:10.3390/admsci8030030 www.mdpi.com/journal/admsci Adm. Sci. 2018,8, 30 2 of 16 1. Introduction Many scholars have studied the motives and experiences of whistleblowers (e.g., Ayers and Kaplan 2005;De Graaf 2010 ; Loyens 2012 ; Miceli et al. 1991 ; Near and Miceli 1996 ; Roberts 2014 ; Rothschild and Miethe 1999 ). Whistleblowing policies and legislation in different countries have also been studied extensively either by scholars using a comparative law perspective (see e.g., Dworkin and Brown 2013 ; Fasterling and Lewis 2014 ; Lewis and Trygstad 2009 ; Morvan 2009 ; Vaughn 2012 ), or by international organisations ( BluePrint for Free Speech 2015 ; OECD 2011 ; Osterhaus and Fagan 2009 ; PACE Parliamentary Assembly of the Council of Europe ; UNODC 2015 ). However, the agencies that receive reports made by whistleblowers—in the whistleblowing literature referred to as internal or external recipients ‘who can effect action’ (Miceli and Near 1992, p. 16 )—have been given much less attention in academia ( Brown et al. 2014 ; Moberly 2014 ). Several scholars (Miceli and Near 1992;Miceli et al. 2008) have argued that it is important to study the role of internal and external recipients of whistleblowing concerns. Their responsiveness and how that is perceived by would-be whistleblowers can affect the decision to report or not. This study focuses on external recipients, particularly on (1) government agencies (other than courts) that receive reports about alleged wrongdoing in other organisations and/or alleged retaliation against those who blew the whistle—which may include Ombudsmen, anti-corruption agencies, Inspector General offices, and the Securities and Exchange Commission (Moberly 2014; Roberts and Brown 2010); and (2) civil society organisations or non-governmental organisations (NGOs) that receive whistleblower disclosures and—often in a more activist way—try to enhance whistleblower protection. We do not focus on the media in their role as an external recipient of concerns (Bosua et al. 2014;Vandekerckhove 2010). Research suggests that whistleblowing reports are an important source of information to uncover wrongdoing within organizations (Brown, Mazurski and Olsen 2008, cited in Lewis et al. 2014). External recipients of concerns are considered crucial for effectively ending the wrongdoing, because internal recipients (like a supervisor) may be more inclined to cover up or ignore the problem (Dworkin and Baucus 1998;Mesmer-Magnus and Viswesvaran 2005;Moberly 2014). At the same time, organisations often prefer whistleblowers to use internal reporting channels (see also Meerts, THIS ISSUE), as to avoid possible damage to reputation and disruption of employer-employee relations if concerns are discussed outside the organisation (Moberly 2014). The few studies that have analyzed the role of external recipients have focused on the effectiveness of whistleblowers to stop the wrongdoing (Miceli and Near 2002) and recipients’ satisfaction with whistleblowing processes linked to procedural and distributive justice of whistleblowing channels (Near et al. 1993). However, not much empirical evidence is available about the actual role and tasks of these recipients in practice (Brown et al. 2014). The Australian ‘Whistling While They Work’ (WWTW) study is one of the very few examples in which valuable insight into the role of external recipients is presented. Based on an analysis of a number of different agencies, like ombudsmen, auditor generals, and public service commissions, Annakin (2011) found that the common approach of these agencies to not investigate the wrongdoing independently, but instead referring it back to the whistleblower’s own department (similar to the approach in citizen complaint investigations), decreases the effectiveness of these agencies in stopping the wrongdoing or indeed forcing organizations to start detoxing their organizational cultures (see Van Rooij & Fine, THIS ISSUE). Moreover, this practice leads to the identity of the whistleblower—who often wants to remain anonymous—being revealed within his or her organization. Other problems include the lack of expertise and skills of staff in dealing with whistleblowing cases, and the lack of coordination between the various external recipients, resulting in agencies shoving responsibility onto others. Given the rather little empirical data available for external recipients—compared to internal recipients—Moberly (2014, p. 295) calls for more research to “better understand the role external recipients can play in the whistleblowing process”, not only in investigating wrongdoing, but also in protecting whistleblowers. Likewise, Brown and colleagues (Brown et al. 2014, pp. 489–90) express “the strong need for the study of whistleblowing protection efforts to shift beyond comparative legal Adm. Sci. 2018,8, 30 3 of 16 studies or attempts to identify good and bad features of whistleblowing laws and procedures, in the abstract, to also include [ . . . ] data on how the systems established under those laws are operating in practice”. Although this study does not go as far as examining whether whistleblower concerns are effectively resolved by external agencies, as further suggested by Moberly (2014), this paper will provide a descriptive analytic comparison of the various roles whistleblowing agencies have in the studied countries, which is a first step towards bringing these agencies (and not just the legislations) to the forefront, and providing insights into their role in whistleblowing protection. In this sense, the current study is a first step to broadening the disciplinary lens on whistleblowing institutions beyond legal scholarship towards cross-disciplinary study, similar to what Perwati (THIS ISSUE) argues for in the context of corruption. This study more precisely aims to address a gap in the literature by analyzing the role of whistleblowing agencies in 11 countries, focusing on their advisory, psychosocial care, investigative, and preventive tasks. The central research question is: “What are the most important similarities and differences between whistleblowing agencies that perform advisory, psychosocial care, investigative, and/or preventive tasks?” Based on the experiences in these whistleblowing agencies, we will also identify the dilemmas and challenges that the installation of these agencies bring about, in addition to the lessons that can be drawn from that. By answering this question, the current paper not only commences to fill a research gap; its contribution is also of practical importance. The driving question for policy makers is no longer whether whistleblowing legislation is needed, nor what key aspects such legislation must encompass (Devine 2015,2016). Rather, the growing number of countries with whistleblowing legislation suggests that the emerging policy question for the next decade will be through what institutional framework whistleblowing legislation can best be implemented (Council of Europe 2014; European Commission 2018 ). Our paper lays the groundwork for further research to answer this policy implementation question, by presenting a comparative study of external recipients of concerns that provide services to whistleblowers in different countries. In the next section, this paper will describe the research design, sampling of the cases, data collection methods, and analysis. Then, the main findings will be discussed, which respectively relate to the legal framework, the existence of government agencies and/or NGOs that support whistleblowers, investigative tasks of governmental whistleblowing agencies and NGOs (focusing on wrongdoing and retaliation investigations), ways in which governmental whistleblowing agencies and NGOs provide psychosocial care and advice for whistleblowers, and to what extent such agencies invest in the prevention of wrongdoing. The final part concludes the paper with a discussion and recommendations for future research. 2. Methods This paper reports the results of a comparative study of whistleblowing agencies in 11 different countries that was conducted in the period of June 2017 to February 2018. The research was carried out as part of a broader project (Loyens and Vandekerckhove 2018) commissioned by the Dutch Whistleblowing Authority (‘Huis voor klokkenluiders’), established in July 2016. The sampling was carried out at the country level. By means of a purposeful maximum variation sampling technique (Patton 1990), we started with a selection of countries within the Council of Europe and G20 with designated whistleblowing legislation and with institutions that have a certain level of comparability with the Dutch Whistleblowing Authority (being the commissioner of this study), mainly shown in the combination of advisory, psychosocial, investigative, and/or preventive tasks. Given that the Dutch Whistleblowing Authority is an external recipient of disclosures, we focused on those institutions. We aimed for a mix of early-movers and late-movers to include both countries with established institutional frameworks around whistleblowing and countries that are undergoing institutional rearrangements. During the study, some countries on our initial list were omitted (Slovakia and Sweden, respectively because of non-cooperation with key stakeholders and perceived lack of implementation of the law). We later added Australia and Israel, mainly because of their recent Adm. Sci. 2018,8, 30 4 of 16 efforts to further develop the institutional framework to implement the whistleblowing legislation. This resulted in the final sample shown in Table 1below. Table 1. Final sample of countries included in this study. Country Whistleblowing Legislation Dates Council of Europe countries UK Belgium France Norway Serbia Ireland The Netherlands 1998 (2013) 2004; 2013 2004; 2016 2007 2014 2014 2016 G20, but not CoE countries USA Republic of Korea Australia 1978 (2012); 2010 2001 (2014); 2011 (2015) 2004; 2009; 2013 Other countries Israel 1997; 2008 Within these countries, we studied both government agencies and NGOs that perform advisory, psychosocial care, investigative, and/or preventive tasks concerning whistleblowing. Data collection methods included: (1) analysis of policy and legislative documents concerning whistleblowing in the selected countries; 1 (2) analysis of existing research reports about agencies within the selected countries and implementation of whistleblowing legislation; and (3) 21 semi-structured interviews (17 by telephone and four face-to-face) with whistleblowing professionals, being high ranking officers working in the studied agencies, and academic experts who study whistleblowing in their country and who have been involved in recent legislative or institutional rearrangements. An interview protocol was used during the interviews (consisting topics like tasks, institutional arrangements, whistleblower protection, and implementation challenges), while remaining open for additional topics that interviewees considered relevant to discuss. Given the sensitive topic and to avoid social desirability bias, confidentiality of the respondents’ identity was guaranteed and interviews were not recorded. During the interviews notes were made, which were written out in full detail shortly after the interview. Data were collected by two researchers who had regular discussions to increase the comparability of data collection. Data analysis was done by first summarizing the data per country in Excel tables and structuring them in general categories like ‘institutional characteristics’ and ‘tasks’ (further subdivided in ‘advice’, ‘psychosocial care’, ‘investigation’, and ‘prevention’). The findings were then visualized in infographics (as shown in Figures 1and 2below), after which a comparison was made between agencies in the selected countries. To increase the validity of the findings, the interviewees reviewed the country summaries and infographics (as a form of member-checking), and their suggested revisions were taken into account. These revisions mainly consisted of providing further detail, and correcting omissions on our part. 3. Findings This part will start with a brief comparison of the whistleblowing legislation in the selected countries, which (although not the focus of this paper) is the framework within which the studied external recipients of whistleblowing concerns operate. The following four sections will discuss the main findings of this study, along the lines of four subthemes. First, while there is a clear 1 In the federal countries in our study, we focused on agencies at the state level, and only included regional agencies if interviewees referred to important differences between state and regional arrangements. Adm. Sci. 2018,8, 30 5 of 16 trend to install governmental whistleblowing agencies that deal with individual whistleblowing cases, this is more common for public sector than private sector whistleblowing. In countries with no or weak governmental whistleblowing agencies or with a fragmented institutional landscape, NGOs sometimes step in to provide whistleblowing protection. Second, we find that, in most countries, the investigation of alleged wrongdoing and the investigation of alleged retaliation are done by separate agencies to avoid conflict of interest, because the investigation of wrongdoing is considered to require more neutrality towards the whistleblower than retaliation investigations. Nevertheless, some whistleblowing agencies combine both investigative tasks. Third, only in a few of the selected countries are government funds available to provide specific psychosocial support for whistleblowers. While most whistleblowing agencies advise whistleblowers about the procedure and the decision to report, only the Dutch Whistleblowing Authority gives continuing support through the entire procedure, not unlike whistleblower protection by NGOs in some of the studied countries. Fourth, most whistleblowing agencies invest in the prevention of wrongdoing in public and/or private sector organizations, but only a few of them have the ambition to perform as a center for knowledge and expertise. The main findings are summarized in Table 2. 3.1. Legal Framework in Selected Countries When comparing whistleblowing arrangements in the selected countries, two important differences can be observed, respectively relating to the sectoral scope of the legislation and the type of wrongdoing for which the legislation offers protection if reported by whistleblowers. With regard to sectoral scope, whilst some countries have separate whistleblowing regulations for the public and private sector (Australia, Israel, the Republic of Korea, and the USA) or whistleblowing provisions that only cover the public sector (Belgium), there is a clear trend to install stand-alone whistleblowing legislation covering both public and private sectors (Ireland, France, The Netherlands, Serbia, Norway, and the UK). Federal countries like the USA and Australia tend to have a fragmented legal framework, with not only separate pieces of whistleblowing legislation for the public and private sector, but also different regulations and agencies at various levels of the public sector. This has, in the USA, resulted in “a patchwork of more than 60 laws in different states, at different levels, for different sectors (including the private sector), and for different purposes” (Loyens and Vandekerckhove 2018, p. 25). The situation in Australia is similar (albeit with a lower number of whistleblowing laws), but discussions about unifying the legislation to cover both the public and the private sector are ongoing. Recently, Ireland and France made the shift from fragmented whistleblower protection towards a unified stand-alone legislation, which has the advantage that protection measures and whistleblowing statutes are the same for both public and private sector whistleblowers (Loyens and Vandekerckhove 2018). Adm. Sci. 2018,8, 30 6 of 16 Table 2. Summary of whistleblowing arrangements concerning external recipients of concerns in 11 countries. Countries Sectoral Scope Whistleblowing Agency Investigation Care & (Legal) Advice Prevention (Which Agency) Australia Separate for public and private sector Government: ombudsman Wrongdoing or referral Government: information Ombudsman (government) Belgium Only public sector Government: ombudsman Wrongdoing and retaliation Government: information, advice / Ireland Public and private sector Government: prescribed persons No investigative agency NGO: advice, legal assistance Integrity@Work (NGO) Israel Separate for public and private sector Government: ombudsman Wrongdoing and retaliation in separate units Government: information, advice / France Public and private sector Government: ombudsman Retaliation / / The Netherlands Public and private sector Government: Dutch Whistleblowing Authority Wrongdoing and retaliation Government: psychologist, advice Dutch Whistleblowing Authority (government) Norway Public and private sector Government: clinic (only psychosocial support) No investigative agency Government: psychosocial care clinic / Republic of Korea Separate for public and private sector Government: ACRC Retaliation NGO: advice, legal assistance / Serbia Public and private sector NGO: Pistaljka Only investigative journalists (Pistaljka) NGO: advice, legal assistance Pistaljka (NGO) UK Public and private sector Government: prescribed persons & National Guardian Office (NHS) No investigative agency NGO: advice, legal assistance NHS (government); Public Concern at Work (NGO) USA Separate for public and private sector Government: OSC, SEC, OWB, MSPB; NGO: GAP Retaliation (OSC, MSPB) & wrongdoing in separate units (SEC); investigative journalists (GAP) Government: information, advice (OWB) OSC (government); GAP (NGO) Adm. Sci. 2018,8, 30 7 of 16 When comparing the type of wrongdoing for which whistleblowers receive protection if they report it, we find much variation in the wording and definitions used in the selected countries. Despite the differences, we can observe some patterns. First, most legislation covers all of the following types of wrongdoing: (1) breaches of law, (2) danger to the health and safety of people, and to the environment, and (3) integrity violations. In the third type, there is huge variation in the wording and scope. Some examples include: ‘shortcoming of public service duty’ (Belgium), ‘ abuse of public trust ’ (Australia), ‘abuse of authority’ (Republic of Korea, USA), ‘ breaches of ethical codes ’ (Norway), ‘gross mismanagement’ (Ireland, USA), and ‘violation of administration’ (Israel). Moreover, this category is omitted in the whistleblowing legislation in France and the UK. Some countries add other types of wrongdoing to broaden the scope of the legislation. Norway stands out by also including “negative culture, corruption, illegality and unethical or harmful incidents” ( Lewis and Trygstad 2009, p. 382 ). A noteworthy observation is that the scope of wrongdoing in private sector legislation tends to be less broad than the scope in public sector legislation (see e.g., Australia and USA), although the Republic of Korea is a possible exception. Only in a few countries does the legislation explicitly state that the wrongdoing should be in the public interest. In 2013, a ‘public interest test’ was introduced in the UK: a judge at an Employment Tribunal hearing considers whether the whistleblower had ‘a reasonable belief the disclosure was in the public interest’. Given the very broad and imprecise definition of wrongdoing in the Norwegian whistleblowing law (see above), the legislative committee that will suggest revisions to the law is considering introducing a public interest test as well. Although in the Netherlands no public interest test is installed, the Dutch law explicitly stipulates that whistleblowers can only be protected if they report wrongdoing that may harm the public interest. Of course, in all countries, whistleblowing legislation makes it possible for whistleblowers to make claims in court with regard to the wrongdoing they have observed and retaliation they have experienced. How these courts function is, however, outside of the scope of our research. In this paper, we concern ourselves with organisations other than courts that may facilitate successful whistleblowing (i.e., effective in stopping wrongdoing and safe for the whistleblower). 3.2. Governmental Whistleblowing Agencies and NGOs Particularly in countries with separate whistleblowing legislation for the public sector, there is a trend to install governmental whistleblowing agencies that advise or support whistleblowers, investigate alleged wrongdoing and/or alleged retaliation, offer protection, and promote the prevention of wrongdoing. In our study, six countries have already installed such an agency, 2 but the combination of tasks differs (as shown in Figure 1). In four of the selected countries, this role is mandated to the Ombudsman (Australia, 3 Belgium, 4 Israel, and France). In the USA, the Office of Special Counsel (OSC) is the authorized whistleblowing agency for the public sector. Other whistleblowing agencies, such as the Securities and Exchange Commission (SEC) that implements the Dodd-Frank Act, offer protection for all whistleblowers who report security law violations. Within the SEC, the Office of the Whistleblower (OWB) investigates alleged retaliation, gives advice to whistleblowers, and promotes the prevention of wrongdoing. So far, only in the Republic of Korea and the Netherlands is a government agency installed to deal with both public and private sector whistleblowers. Since its establishment in 2001, the mandate of the Anti-Corruption and Civil Rights Commission (ACRC) in the Republic of Korea has grown from dealing with anti-corruption to dealing with whistleblowing cases on a broader range of wrongdoing in the public and private sector (covered by two separate pieces of legislation). 2 In France, the new legislation had mandated the ombudsman for the investigation of whistleblowing cases, but the executive decree implementing these new tasks for the ombudsperson had not been signed at the time of writing this paper (June 2018). Therefore, France is not included in Figure 1. 3As for Australia, this study focused on the Commonwealth Ombudsman at the national level. 4 As for Belgium, this study focused on the Flemish and Federal level. At both levels, the Ombudsman operates as the whistleblowing agency for the public sector. Adm. Sci. 2018,8, 30 8 of 16 Hence, only the Netherlands has a governmental whistleblowing agency that operates under a stand-alone whistleblowing legislation for both the public and the private sector. Other countries in our sample are exploring the same option (France, Norway, and Australia). Although the UK has the longest experience of a whistleblowing law that covers the public and private sector, it does not have a central whistleblowing agency linked to that law, which is also the case in Ireland. The legislations in both of these countries only provide a list of ‘prescribed persons’ that receive reports and investigate alleged wrongdoing. For Ireland, there is no information available as to how pro-active these regulating bodies are concerning whistleblowing cases. But in the UK, the National Audit Office recently conducted an audit (in 2015) that showed that staff within these ‘prescribed person’ bodies were often unaware that they were mandated as a recipient of whistleblower concerns. Specifically for the National Health Service (NHS) in the UK, a whistleblowing agency was established in 2016 (see below). Adm. Sci. 2018, 8, x FOR PEER REVIEW 8 of 17 public and the private sector. Other countries in our sample are exploring the same option (France, Norway, and Australia). Although the UK has the longest experience of a whistleblowing law that covers the public and private sector, it does not have a central whistleblowing agency linked to that law, which is also the case in Ireland. The legislations in both of these countries only provide a list of ‘prescribed persons’ that receive reports and investigate alleged wrongdoing. For Ireland, there is no information available as to how pro-active these regulating bodies are concerning whistleblowing cases. But in the UK, the National Audit Office recently conducted an audit (in 2015) that showed that staff within these ‘prescribed person’ bodies were often unaware that they were mandated as a recipient of whistleblower concerns. Specifically for the National Health Service (NHS) in the UK, a whistleblowing agency was established in 2016 (see below). Australia Belgium Israel the Netherlands Figure 1. Cont. Adm. Sci. 2018,8, 30 15 of 16 Devine, Tom. 2015. International best practices for whistleblower statutes. In Developments in Whistleblowing Research. Edited by David Lewis and Wim Vandekerckhove. London: International Whistleblowing Research Network, pp. 7–19. Devine, Tom. 2016. 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Available online: https://www.ad.nl/binnenland/huis-voor-klokkenluiders-stort-inelkaar~a264c38e.X (accessed on 22 June 2018). © 2018 by the authors. Licensee MDPI, Basel, Switzerland. This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution (CC BY) license (http://creativecommons.org/licenses/by/4.0/).