Establish legal whistleblower protections (ES0049)

What is the problem/need that is desired to resolve with the commitment? There are no minimum protection norms for people who, in the context of their activities, both in the public and private sector, are aware of infractions, violations or fraud against the law and want to be informed about them. Objectives of the commitment Establish a regulation to protect all whistleblowers who report corruption or fraud and violations of laws of the European Union, by establishing protected whistleblower channels and the prohibition of retribution against those who report irregularities in private companies and public organisations. Be able to exploit the potential of protection that is being denounced in order to reinforce the application and compliance with the legislation in all fields. Reinforce exercising the right to freedom of expression and information. As is set forth in the directive, establish an appropriate institutional apparatus to guarantee the protection of the whistleblower through the authority designated by the Member State.

Brief description of the commitment Transpose to the Spanish legal regulations the (EU) Directive 2019/1937 of 23 October 2019 on the protection of people who report legal violations in the EU. Approve a uniform legal framework that guarantees the protection of people who provide information to detect legal violations within an organisation, whether public or private, and contribute in this way to a better enforcement of the law.

How does the commitment contribute to solve the problem or cover the need? 83 This initiative should be a priority because it will be an especially useful tool in the fight against corruption, and the protection of people who report infractions and violations of the law, both in the public and private spheres.

Why is the commitment relevant with respect to the values of Open Government? It has a clear transformational impact on the citizenry and the openness of public policies, given that it involves raising the awareness of the citizenry on the fight against corruption, and transmission of the involvement of public administrations in it by obliging them to deploy whistleblower channels that facilitate the knowledge of the facts and protection measures that guarantee the indemnification of the whistleblower.

Additional information It must be noted that the transposition is subject to a deadline that ends 17 December 2021. In addition, the "minimal" nature must be pointed out as well as the possibility to expand the protection to areas not set forth by the Directive.

Activities of the commitment Date Start Date End 1. Approval of the draft bill Main milestones 1. Prior consultation and study of the contributions. Preparing the draft bill and impact analysis report 01/10/2020 31/12/2020 2. Submission to the Council of Ministers, so it can decide on the next proceedings, and particularly, the queries, opinions and reports that are appropriate (art. 26.4 Law 50/1997). 01/01/2021 30/06/2021 3. Processing of the hearing and public information. 01/01/2021 30/06/2021 4. Reports from other departments and bodies:  Office of Regulatory Coordination and Quality  Report from Autonomous Regions and FEMP  GTS Ministers 01/01/2021 30/06/2021 5. Request for other reports:  GD of Autonomous Region and Local Coordination  Spanish Data Protection Agency  Technical General Secretary 01/01/2021 30/06/2021 6. Opinion of the Council of State 01/07/2021 31/12/2021 7. Sending to the Committee of SS and Subsecretaries and Council of Ministers 01/07/2021 31/12/2021

Action Plan Review

Commitment 6: Whistleblower protection

Commitment cluster 5 and 6: public integrity systems

Lead agencies: Ministry of Land Policy and Public Administration; Ministry of Justice

For a complete description of this commitment, see: https://www.opengovpartnership.org/documents/spain-action-plan-2020-2024/

Context and objectives

The decision to include commitments in this area responds to citizen input gathered during the consultations and to government strategies to strengthen preventative public integrity systems from different angles. [45] This policy area was not included in Spain’s previous action plans.

Establishing a public integrity system for the central administration will strengthen the ethical values and integrity of public institutions, as well as build public trust. To this end, the process includes:

This cluster also aims to adopt two new legal frameworks: one to regulate lobby groups and create a lobby register; and one to draft a law for whistleblower protection in the public and private sectors. Lobby regulation and whistleblower protection have been constantly demanded by civil society organizations. [46] In Europe, regulations around lobbying, conflicts of interest, and whistleblower protection have been priority areas promoted as part of the open government framework. This cluster also includes reforms to reduce incompatibilities of individuals selected for public administration.

The open government lens is considered through participation by civil society stakeholders, including academia and other entities, in the analysis of new regulatory frameworks. The resulting regulation is expected to bring about greater transparency, encouraging access to information.

Potential for results: Substantial

Overall, these proposed actions could bring about substantial results, especially if the integrity system is successful in reducing corruption, [47] managing conflicts of interest in public administration, and building public trust.

Input gathered through assessments is the starting point to identify corruption risks and key points that need to be addressed through integrity management models and codes of conduct. The legal frameworks will provide tools to prevent crime and protect both public and private individuals who work with law enforcement.

An academic believes this commitment is an opportunity to create the necessary bodies, procedures, and instruments for integrity within the General State Administration. [48] This will facilitate control of undue influences and policy capture by private interests. [49] The academic also pointed out that this area has achieved various degrees of progress in the country; Castilla La Mancha and Catalunya, for instance, have laws that regulate lobbying. The varying levels of regulation across Spain make it necessary that all levels of government recognize the need and ensure the implementation of these systems. [50]

Opportunities, challenges, and recommendations during implementation

The regulatory nature of these commitments tend to lead to consultation processes with few opportunities for broader citizen participation beyond interest and specialized groups. To strengthen participation spaces, the IRM recommends integrating mechanisms to encourage participation, for example by using the Transparency Portal. According to OGP staff from Spain, on 28 April 2021, a consultation was held to gather proposals from citizens, interest groups, and stakeholders that will be considered during drafting the bill. Also on 28 April 2021, the government held a consultation on the bill to prevent conflicts of interest in the public sector. [51]

A challenge in this policy area is establishing proportional disciplinary mechanisms and strengthening regulatory entities, such as the Office for Conflicts of Interest. This means granting the office additional resources, adopting European best practices to manage conflicts of interest, and other recommendations from a comparative study by the Department for Citizen Rights and Constitutional Affairs of the European Parliament. [52] The IRM also recommends including, as part of the assessment and development of codes of conduct for the General State Administration, various disciplinary actions responding to the severity of the misconduct, incorporating the accountability dimension.

Finally, the results of this commitment will depend largely on the ability to pass the applicable reforms. The IRM recommends developing—from the beginning of the implementation—a strategy to reach consensus among political and social stakeholders so that proposed new instruments are effectively adopted and enforced.