Draft Law on Protecting Whistleblowers (LV0025)

Status quo: Negative perceptions among the general public about whistleblowers and a mechanism for their practical protection. Main objective: Creating positive perception of whistleblowers among society and public officials in order to establish an atmosphere of mutual trust.

8. Draft law on the protection of whistleblowers

Commitment Text:

Status quo: Negative perceptions among the general public about whistleblowers and a mechanism for their practical protection. Main objective: Creating positive perception of whistleblowers among society and public officials in order to establish an atmosphere of mutual trust.

Responsible institution: State Chancellery

Supporting institution(s): Ministry of Justice, Ministry of the Interior, Ministry of Welfare, Supreme Court, Prosecutor General’s Office. NGO Delna Free Trade Unions Organisation of Latvia

Start date: 2014.................... End date: 2014

Editorial Note: The end date above is from the original action plan. In the updated action plan published in 2017, the closing date is revised to 31 December 2016.

Context and Objectives

This commitment was designed to develop a law to protect whistleblowers. The issue was on the agenda of NGOs and government institutions during implementation of the first action plan. The State Chancellery had created an inter-ministerial working group to develop a concept note on whistleblower protection, which resulted in the 2014 decision to develop a draft law.

Whistleblower protection is a major public policy issue in Latvia. So far there are no regulations in force to protect such persons, hence, no incentive to inform on corruption cases. Whistleblowers are punished in other legal ways, such as decreasing their pay, rotating them to other jobs, reorganizing an institution to fire them, and stalling career development. Eurobarometer data show that 92% of respondents in Latvia did not report corruption of which they were aware (EU countries report an average of 74%). ^{Special Eurobarometer 397 (2014), http://ec.europa.eu/public_opinion/archives/ebs/ebs_397_en.pdf.}  The survey also reveals that people do not trust institutions they could inform on; these include the police, courts, prosecutor’s office, and trade unions. Only 29% of those surveyed would report to the police and only 7% to the legal system.

Despite the importance of this issue, the language of the commitment is vague. For example, it does not specify the content of the proposed regulation or how it will achieve the stated objective of creating a better perception of whistleblowers in society. As a result, it is difficult to determine the possible impact of the proposed legislation. The annotation to the draft law shows that several NGOs have participated in its working group. These NGOs include the local chapter of Transparency International, “Delna,” (which provided expertise and methodological materials), the Latvian Free Trade Union Confederation, and the Association of Large Cities (which gave written comments on the drafts). ^{http://tap.mk.gov.lv/lv/mk/tap/?pid=40377799&mode=vss&date=2016-12-15.}  While the quality of experts in the working group is high, the draft law’s development is inclusive, and whistleblower regulations are of national importance, the IRM researcher considers the potential impact of the commitment to be moderate.

Annotations to the regulations (which are not publically available) and information on the Cabinet of Ministers website ^{http://www.mk.gov.lv/lv/content/trauksmes-celeji.}  suggest that the law will contain the following principles:

• Identify institutions to which a person can submit a report in oral, written, or electronic format;
• Establish legal protection measures for whistleblowers, to be enacted if deemed necessary;
• Enable the Corruption Prevention and Combating Bureau to initiate discipline cases against civil servants who have tried to act against whistleblowers;
• Allow whistleblowers to be compensated for material and/or moral loss suffered as a result of the unlawful actions of a civil servant.

As written, the commitment is relevant to public accountability. If properly designed and implemented, it would allow citizens to raise concerns, inform the government of the misuse of public resources and unlawful actions of public servants or institutions, and be confident of their subsequent protection and well-being.

Completion

During the first year of implementation of the action plan, the draft law was discussed by the working group. The Cabinet of Ministers extended the deadline for approval of the draft to 31 December 2016. A harmonization meeting took place in July 2016 and the draft law was approved by the Cabinet of Ministers in March 2017. However, these two events took place after the close of the period evaluated by this report (July 2015 – June 2016). As a result, the commitment had only a limited level of completion at the midpoint of the action plan.

Early Results (if any)

Though the government published information online on the draft law, ^{Please see http://bit.ly/2piXWYl and http://www.mk.gov.lv/lv/content/trauksmes-celeji } this updated information was not available until after the first year of implementing the plan. This information will be fully assessed in the IRM end-of-term report. The draft law was not publically available at the time of the writing of this report. Participating NGOs approve of the draft, which they believe contains all the principles required for effective whistleblower protection. However, early results were limited at the time of this evaluation, given the draft’s pending approval by government and Parliament.

Next Steps

The IRM researcher suggests adopting the draft while preserving principles in accordance with transparency standards, such as:
 

·  A requirement to build whistleblower protection systems within organisations;

·  A joint framework for dealing with submissions for all institutions involved in handling reports; and

·  Protection measures for whistleblowers, including anonymity, a prohibition on applying measures against the person, and a burden of proof on the side of the employer.

The next action plan could focus on monitoring the implementation of the new law and evaluating how it changes the culture of reporting on corruption cases and misconduct in other areas such as fraud, public health, and construction.

Commitment 8. Whistleblower Protections

Commitment Text:

Draft law on the protection of whistleblowers

Negative perceptions among the general public about whistleblowing. Comparatively small number of persons who are ready to report irregularities. The whistleblower protection mechanism is not efficient.

Main objective: Development of a single legal framework for whitleblowing [sic] and the protection of whistleblowers.

Responsible Institution: State Chancellery

Supporting Institutions: Ministry of the Interior, Ministry of Welfare, Ministry of Justice, Supreme Court, Corruption Prevention and Combating Bureau, Office of the Prosecutor General, NGO “Association for transparency—Delna,” Free Trade Union Confederation of Latvia (members of the working group for the development of the Whistle Blower Protection Law)

Start Date: 2014 ........ End Date: 31 December 2016

Editorial Note: The commitment text above is drawn from the updated version of the action plan, published in October 2016 and available at http://bit.ly/2EK34dH. The original version of the action plan is available at http://bit.ly/2ptZ0sq. To see the changes between the two versions, visit http://bit.ly/2FPvK4r.

Commitment Aim

The commitment aims to develop a regulation to achieve the legal protection of whistleblowers. This issue was on the agenda of NGOs and government institutions during the implementation of the first action plan. During the implementation of that plan, the State Chancellery created an interministerial working group to develop a concept note on whistleblower protection. The working group decided in 2014 to develop a draft law on whistleblower protection.

Although the original text of the commitment was vague, the government better specified the intended outcome of the commitment in the revised version of the second action plan. It is now clear that the goal of the commitment was the development of a single legal framework for whistleblowing. The updated version of the action plan additionally specified that the draft law was expected to be announced at a meeting of the state secretaries in December 2015, and submitted to the Cabinet of Ministers by December 2016.

Status

Midterm: Limited

During the first year of implementation of this action plan, the draft law was discussed in the working group. The Cabinet of Ministers extended the deadline for the approval of the draft to 31 December 2016. As a result, by the midpoint of the action plan, the commitment had limited completion. For more information, see the 2015–2016 IRM midterm report. ^{“Latvia Mid-Term Progress Report 2015–2017,” Open Government Partnership, https://www.opengovpartnership.org/documents/latvia-mid-term-progress-report-2015-2017.}

End of term: Complete

The commitment is technically implemented, since it aimed to develop—not implement—a draft law, which falls under the exclusive domain of the executive. Nonetheless, the law is not in force, nor has it been approved by Parliament, which began its review of the bill on 16 March 2017. ^{“Law on the Protection of Whistleblowers,” Legal Projects, Parliament, http://titania.saeima.lv/LIVS12/saeimalivs12.nsf/webAll?SearchView&Query=([Title]=*trauksmes+c%C4%93l%C4%93ju*)&SearchMax=0&SearchOrder=4.} At the time of writing this report, the bill remained under review.

During the second year of implementation, the State Chancellery led the process of drafting the law through coordination with public institutions and members of the public, which included a harmonisation meeting in July 2016. The draft law was approved by the Cabinet of Ministers in March 2017. ^{“Draft law ‘The Law on Protection of Whistleblowers’” Legislative Proposals, Draft Legislation of the Cabinet of Ministers of the Republic of Latvia, http://tap.mk.gov.lv/lv/mk/tap/?dateFrom=2016-09-06&dateTo=2017-09-06&text=trauksme&org=0&area=0&type=0.} The State Chancellery added a special section on whistleblower protection to the web page of the Cabinet of Ministers, explaining the main concepts and describing the process of developing the law. ^{“Whistleblowers,” Cabinet of Ministers, http://www.mk.gov.lv/lv/content/trauksmes-celeji.} On the official law portal, on social networks, and in the media, the State Chancellery also provided an explanation of the law and the need for it. ^{Inese Kuske, “Establishment of the Whistleblower Protection Mechanism in Latvia,” Par Likumu un Valsti, 6 February 2017, http://www.lvportals.lv/visi/viedokli/285003-trauksmes-celeju-aizsardzibas-mehanisma-izveide-latvija/.} The State Chancellery continues to raise public awareness, for example, by organising an international conference on the issue in November 2017. At the end of 2017, a Parliament committee working group was established to develop an alternative draft law. The group includes the State Chancellery, the Ministry of Justice, the NGO “Delna”, the Employers’ Confederation of Latvia, the Latvian Association of Free Trade Unions and the Civic Alliance of Latvia. In the previous IRM report, the IRM researcher suggested adopting the draft while preserving principles in accordance with transparency standards, such as

• A requirement to build whistleblower protection systems within organisations;
• A joint framework for dealing with submissions for all institutions involved in handling reports; and
• Protection measures for whistleblowers, including anonymity, a prohibition on applying measures against the person, and a burden of proof on the side of the employer.

The principles above were preserved during the review of the Cabinet. The IRM researcher recommends that they also be preserved during the parliament’s review.

Did It Open Government?

Public Accountability: Did Not Change

At this stage, although the commitment is technically completed, there are no changes in government practises, since the law is not in force.

Carried Forward?

The third action plan includes a commitment that envisages awareness-raising measures of whistleblower protections. The commitment’s implementation will depend on whether the draft law mentioned above is approved by Parliament. Moving forward, it will be important for civil society to remain engaged, since greater citizen demands for change will improve the chances that the law is adopted.