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Enemies of the people: whistleblowers usually get destroyed

VILLAGE IS about nothing if it isn’t giving space to whistleblowers. Reflecting this, the magazine has several times illustrated articles with a cartoon whistleblower, cheeks inflated to bursting, typically to no political avail. It’s a good image for the magazine in general, Village’s frustrated sympathy is nearly always with those prepared to blow and it remains confounded by official concealments.

The success of the whistleblowers covered by Village in getting the recalcitrants held to account has been variable. George McLoughlin figured on the cover of the last edition of the magazine for his insider allegations that the Workplace Relations Commission is systemically biased against employees but there was no pick-up by other media or the body politic. Meanwhile he is enmired in a miasma of legal actions with his employer, itself the WRC, about its failure to renew its contract with him after his retirement.

Village has gone nuts about diverted funding at the long-dysfunctional Irish Red Cross, about a heavyweight Ansbacher cover-up, about Jonathan Sugarman, about the abuse of its dominant position in the market by Ireland’s biggest company – CRH, about the illegal dumping of 10 million tyres in the Donegal bog, about corruption in local authorities around the country, led by a former county manager in Donegal, about the role of MI5 in promoting compromising paedophilia in Northern Ireland; all to little avail.

There’s a vague glamour to whistleblowing. It has been the centrepiece of works of art from Henrik Ibsen‘s ‘An Enemy of The People’, (1882) and Nobelist Halder Laxness’s ‘Independent People’, (1934) to Elia Kazan’s ‘On The Waterfront’, (1952) and Steven Soderbergh’s ‘Erin Brockovich’ (2000).

But the glamour mostly attaches to journalists. Unless they’re from Village.

Englishman WT Stead is considered to be the founding father of investigative journalism and the inventor of the sensationalism that gave rise to tabloid newspapers. His famous investigation into the trafficking of young girls in 1885 earned him a jail sentence but precipitated passage of a law raising the age of consent, and indeed Shaw’s play ‘Pygmalion’.

Journalistic whistleblowing became a phemonenon with Emile Zola who was convicted by a French court for criminal libel for his campaign to establish the innocence of Jewish army officer Albert Dreyfuss of passing secrets to Germany in the late 1890s. Nellie Bly, a pseudonym used by journalist Elizabeth Cochrane Seaman around the same time, famously feigned insanity as part of her 1887 undercover exposé of the Women’s Lunatic Asylum in New York City. But modern investigative journalism took forensic shape in 1960s Britain.

From Ludovic Kennedy’s 1960s re-examining of cases such as the murder convictions of Timothy Evans and Derek Bentley to Harold Evans’ 1970s exposé of thalidomide in the Sunday Times to Pilger and Hitchens and the crusades of Paul Foot on James Hanratty hanged in 1962 for the A6 murder, journalists in Britain have in a de facto sense acted as whistleblowers even if there is scant legislative protection for them.

They are never legislatively classified as whistleblowers. These journalists attained a measure of respect, especially among the cognoscenti. We should nevertheless be clear that with the demise of the likes of Don McCullin and Peter Hitchens and even ‘Prime Time Investigates’ and the rise of the plutocratic oligarchs in the press, that intrepid investigation is under threat and in decline.

The underlying characters who break from their peers to tell tales on their institutions, that’s a different matter. Most of them finish up destroyed. An excellent recent book by NUIG academic Kate Kenny, ‘Whistleblowing: Towards a New Theory’ (2019, Harvard University Press), makes the case that journalists make life more difficult for whistleblowers by spotlighting them and making them targets for scrutiny “We see this clearly in the recent media obsession with well-known whistleblowers such as Edward Snowden, Julian Assange and Chelsea Manning in which more attention is given to the individuals, their private selves and their personalities than to the information they report“.

There is much literature on the dynamic and motivation of whistleblowing. Elements of vanity are often to the fore, proponents are rarely comfortable team players. Antagonists can often have a field day at their expense.

Indeed though you’ll mostly recognise one when you see one in fact there are divergent views as to who should be classified as a whistleblower in the first place. Certainly an employee but what about a consultant or an associate or an independent journalist? Does criminal behaviour lose you the status?

And what sectors? Certainly blowing the whistle on crime, terrorism, national security, and corruption are protected in most jurisdictions. Beyond that there is a definite ambivalence, reflected in official inertia.

This is manifest in the fact that legislation is not in general effective and the whistleblower may expect to be subjected to what the literature deems reprisals or retaliation. This typically means internal disciplinary sanctions on a spectrum from an informal warning to dismissal on fabricated grounds. Bullying, harrassment, termination of career prospects or employment and threats are common but some have paid even higher prices. A notable such casualty was journalist, Daphne Anne Caruana Galizia, who led the Panama Papers investigation into corruption, targeting widely from the Prime Minister to the Mafia, in Malta.

She was killed last year by a car bomb. Her experience was the worst but nearly all whistleblowers suffer for their stance. This is shown by a review of the best known.

Before his recent eviction and jailing for skipping bail, Julian Assange was forced to seek refuge in London’s Ecuadorian embassy after facing an investigation by Swedish prosecutors into rape offences centring on his refusal to use a condom or have a STD test with two woman he stayed with while he was giving talks in Stockholm in 2010.

Meanwhile, the US is applying for his extradition. Assange is not charged with anything related to Russia or Russiagate or even with breaking a law. Assange is charged with being in a conspiracy with Chelsea Manning “to commit computer intrusion” over the Collateral Murder video, the Afghanistan war logs, the Iraq war logs, and CableGate which leaked diplomatic exchanges.

The charge is not that Assange succeeded in hacking a government computer and obtaining classified information. It merely says that Assange discussed the possibility with Manning and had an intention to hack a computer. If the US government had any evidence that Assange actually hacked a government computer, he would have been charged with that.

His extradition from the Ecuadorian embassy after US pressure on 11 April 2019 evoked a Howard Hughes figure: bearded, jagged and aged dragged in a semi-recumbent position and clearly terrified. Meanwhile, Edward Snowden, who copied and leaked highly classified information from the National Security Agency in 2013 when he was a Central Intelligence Agency employee and contractor, has parked himself in Russia against the baying American hounds.

Though not all are destroyed, most are assailed. Ralph Nader is the US’s best-known whistleblower. Indeed he appears to have invented the term. His 1965 bestseller ‘Unsafe at Any Speed’ was a crushing critique of the safety record of American automobile manufacturers.

Nader led a group of volunteer law students—dubbed “Nader’s Raiders”—in an investigation of the Federal Trade Commission, leading directly to its overhaul. In the 1970s, Nader instigated a number of advocacy and watchdog groups including the Public Interest Research Group, the Center for Auto Safety, and Public Citizen. General Motors (GM) tapped Nader‘s phone in an attempt to uncover some sleaze about the ascetic Nader, and, when that failed, hired prostitutes in an attempt to catch him in a compromising position. Nader sued GM for invasion of privacy, settling the case for $425,000 and using the proceeds to establish a legal centre.

Nader is credited with legislation including the Clean Water Act, the Freedom of Information Act, the Consumer Product Safety Act, the Foreign Corrupt Practices Act, the Whistleblower Protection Act, and the National Traffic and Motor Vehicle Safety Act.

Turning to Ireland, one of the authors of this piece offered a reward that was important in bringing about the planning tribunal and the other instigated the Irish Innocence project which challenges miscarriages of justice including death-row convictions; and you can get addicted to this sort of stuff. One feels he hasn’t really suffered for his involvement (and his co-conspirator became a judge in a European court), the other left the jurisdiction for a new career as a UK barrister after coming under pressure. His experience is the more typical.

Former risk manager in Ireland with Italy’s biggest bank, Unicredit, Jonathan Sugarman is important as, at least arguably, if he had been listened to Ireland might have avoided the liquidity crisis that grounded its solvency crisis and its decade-long economic immiseration. You might expect Sugarman, a half Israeli, half-South African who worked for years in Germany but now regards himself as largely Irish, would be a national hero.

He gave vivid testimony in 2017 to a clearly uninterested Dáil Committee on Finance which seemed to want him to move on now that his life had been destroyed, he was unemployable and he had not worked in many years. Ireland has “absolutely and completely destroyed the lives of every single whistleblower” that has dared reveal irregularities to officials, he claimed.

He had not been permitted to give evidence to the banking inquiry, itself the third of its type following two blame-non-attributing predecessors: The Preliminary Report on the Sources of Ireland’s Banking Crisis by Regling and Watson (2010); Peter Nyberg’s work for the government entitled Misjudging Risk: Causes of the Systemic Banking Crisis in Ireland (2011).

One of the 2017 inquiry‘s researchers herself subsequently became a whistleblower about the deliberate exclusion of Sugarman and the Central Bank’s Frank Browne, among other things. She was reputationally destroyed in the final report and the suggestion was made that she was delusional and a fabricator. She lost her job and in effect was run out of town for telling the truth.

All the determining tribunal documents were redacted and crucial witnesses not called in a process supervised by McCann Fitzgerald, a solicitors’ firm which had aggressively rubbished Sugarman’s reliability to one of the authors of this piece.

This was a governmental cover-up, facilitated by a naive press. Even the then governor of the Central Bank, Patrick Honohan, in correspondence with Village, had seemed to be more concerned about the Sugarman allegations. It is now unlikely they will ever be officially investigated.

In 2014 Gerard Ryan, who acted as an authorised officer inquiring into the Ansbacher offshore accounts between 1998 and 2004, claims there was evidence that ten high-profile former politicians had used the scheme to avoid tax. If true it too would be one of the biggest scandals in the history of the State.

He said he believed several agencies failed to investigate these claims properly and that his efforts to have them probed were obstructed at the highest levels. His allegations were never properly ventilated or investigated. The Garda received 5,500 pages of files relating to allegations of tax-evasion by holders of Ansbacher accounts but no prosecutions resulted. Ryan apparently remains in his job in the Department.

There has been a vast increase since Ryan came forward in the numbers of protected disclosures made about the financial services industry to the Central Bank: up from just 1 in 2014 to 113 in the year to the end of June 2018. It is not clear how all of these disclosures are resolved, as the Central Bank does not give a breakdown.

Moving away from the financial services industry, the principal whistleblowers at the planning tribunal were James Gogarty and Frank Dunlop. Gogarty, a wily obsessive, became a national hero though his reputation suffered latterly when it emerged he had given salacious evidence about irreproachable figures, attention to which should have been drawn by the tribunal in its dealings with others he had implicated. Dunlop served 18 months in jail for corruption of Councillors, having fallen from the great height of government press advisor and PR advisor to the builder community.

One-time supermarket honcho Ben Dunne blew the cocaine-fuelled whistle that led to the Moriarty Tribunal (1997-2011) investigating his substantial secret payments to the former Taoiseach Charles Haughey and Minister Michael Lowry. It discounted his evidence on the damning grounds that he was mentally unreliable as well as corrupt. However, he has made a comeback in the susceptible popular imagination as gym guru and plainspeaker. The same tribunal also investigated allegations that tycoon Denis O’Brien had paid money to Lowry for the award of the second mobile-phone licence in Ireland.

Olivia Greene, a former loan supervisor at Irish Nationwide Bank, appeared on RTÉ’s Prime Time in December 2009, and revealed that senior Fianna Fáil politicians had received “fast-tracked loans” from Nationwide’s controversial CEO Michael Fingleton. Kate Kenny writes that “in one instance an older colleague called her in her office and began to call her names and detail her failings…Suddenly she began to realise that she could hear faintly, a second voice in the background. He was being coached”. When she told the bully that she could hear this, “He was so embarrassed that he flung down the phone”. She lost her job and, unable to fine alternative employment, was reportedly facing eviction from her house in 2015.

Eugene McErlean, the former AIB group internal auditor, warned in 2001 about a major overcharging problem at the bank. But despite warning the bank and the regulatory authorities, he claims no action was taken and that he was removed from his position in 2002 around the same time he met the Financial Regulator about the overcharging issue and other concerns. He received an apology from financial regulator Matthew Elderfield in 2015 and now works voluntarily with Transparency International Ireland.

The Garda is up there with the most dysfunctional insitutions in the Irish state anyway but its loyalist culture makes it a bearpit for whistleblowers.

Sergeant Maurice McCabe lodged multiple complaints in the years following 2000 about slipping police standards in Bailieborough, where he was sergeant, and the lack of initiative of several of his colleagues. As a result of complaints he made about abuse by gardaí of the penalty points system for motor traffic offences, he was denied access to the Garda computer system, Pulse.

McCabe was found to have been subjected to a smear campaign orchestrated by senior Garda officials, namely Dave Taylor, the Garda Press Officer, and former Commissioner Martin Callinan who characterised McCabe’s allegations of Garda misconduct as “disgusting”. A file created, apparently in error, by the child and family agency, Tusla, asserted completely false allegations of serious sex abuse of a child by McCabe. It was used to smear him.

A letter from McCabe, read into the Oireachtas record, said the way the matter had been handled had “destroyed me, my career and my family”. Ireland’s then Minister for Justice and Equality, Alan Shatter later wrongly accused McCabe of refusing to co-operate with his inquiry, a claim for which McCabe unsuccessfully sought an apology.

It drove McCabe to the point of suicide, his wife told RTÉ. In April 2019 Maurice McCabe and his family settled High Court proceedings they took against the State and Tusla, for an undisclosed sum. He had resigned from the force some months previously. Gratifyingly for him the débacle led to the resignation of Alan Shatter. It led also to the resignation of the Garda Commissioner, Martin Callinan, and the retirement of his successor Nóirín O’Sullivan. One of the authors has lobbied and written extensively, largely in Village, about the extent of the corruption and criminality at the highest levels of the police and justice system.

Garda John Wilson also blew the whistle on the traffic penalty-points system after he was unable to have the matter adequately handled within the Garda Complaints System. He left the force the following year, having served for more than 30 years. He brought a High Court challenge to findings that he breached Garda discipline by his off-duty attendance at a DIstrict court hearing which might have suggested support for one of the parties, but in 2014 lost his High Court claim that he should not have been subject to disciplinary proceedings arising from his attendance, while off-duty, at district court proceedings in Cavan. He was prosecuted for his role in a water-charge protest following his arrest at a protest in Cavan in 2015 and at the time was expected to stand as an independent candidate for the Cavan-Monaghan constituency in the next general election.

Disclosures were made last year by the former chief executive Robert Pitt and chief financial officer Ryan Preston of INM, Ireland’s biggest media company. They concerned an apparent attempt by the CEO to buy radio station, Newstalk owned by INM’s biggest shareholder Denis O’Brien, at an inflated price. He also disclosed editorial interference and efforts by Buckley to get INM to pay a “success fee” to a company owned by O’Brien called Island Capital following a transaction in 2015.

ODCE director Ian Drennan expressed concern about the apparent discussion of how Mr Pitt might be sacked by a committee of INM’s board set up to investigate his disclosure and that the identities of Mr Pitt and Mr Preston as whistleblowers had been disclosed to people outside the company. Despite these post-legislation problems, illustratively Pitt and Preston were both able to remain in their jobs long after making protected disclosures. Pitt left to work for an industrial property developer in Prague.

In July an ESB whistleblower, Séamus O’Loughlin, who made disclosures alleging safety and management failings including serious longstanding and unreported leaks from electric cables into urban water told an Oireachtas committee he went public with his concerns after he felt the company rushed him to sign a termination agreement within three working days. He said, “I have gained nothing from this. Nothing, except immeasurable stress for me and my family”.

So let’s look at the evolving state of protection for whistleblowers in Europe and beyond.

The European Court of Human Rights (ECHR) jurisprudence centres on good faith and the public interest. (Guja v. Moldova, ECHR 2008). It asks: (i) whether the whistleblower had alternative channels to disclose the information before making it public, (ii) whether there was a public interest in disclosing the information, and this includes checking the (iii) authenticity of the disclosed information, (iv) the detriment to the employer, (v) whether the whistleblower acted in good faith and (vi) the proportionality of the imposed penalty. These criteria are observed individually but the Court decides on a case as a whole and aims to ensure the overall balancing of rights, rather than a strict application of each principle in a case.

In Guja v. Moldova and later cases, the Court adumbrates two tiers for disclosure. In the “first place” a whistleblower may disclose the information to her ‘superior or other competent authority or body’. It is particularly noteworthy that the ECHR maintains internal reporting to the employer as well as external reporting to “another competent authority or body” at the same tier of reporting without invoking a hierarchy between them as the wording “or” clearly shows. The second tier of disclosure, or what the ECHR refers to as the “last resort”, is reporting to the public. The whistleblower may turn to the public, such as to a newspaper, when the first tier of reporting is “clearly impractical”.

The legislation in Britain (Public Interest Disclosure Act 1998) has moved away from the good faith requirement to a focus on the truth of what is being said. Good faith is not a useful criterion as whistleblowers sometimes act from personal animus or what might be deemed an undue sense of self-importance. Either way let us not confuse the dancer with the dance.

In April 2018, the European Commission put forward a much-anticipated “package of measures“ to strengthen whistleblower protection in certain fields of EU competences. The proposed Directive does not follow the case law of the ECHR as it establishes (i) three tiers of reporting, (ii) sets out time restrictions and (iii) establishes a hierarchy between internal and external reporting. The Directive makes it mandatory for the whistleblower to first and foremost report internally within the organisation.

The US has, since 1981 and now through the Sarbanes Oxley Act 2002, protected whistleblowers. First, they are provided with double back pay, witness fess and lawyers fees. Exemplary damages are awarded in their favour and also employers severely punished. Employers who impose gagging orders are sanctioned as in the Sandridge case.

Most controversially they are given a financial inducement to blow the whistle – by the Securities and Exchange Commission and the IRS among others. In the US 90% of workers in the financial industry now say they would blow the whistle on fraud because of the incentives. There is a US tradition of this dating back to Abraham Lincoln’s False Claims Act (and in England back to 695 AD and the declaration of King Wihtred of Kent, which mandated “if a freeman works during [the Sabbath], he shall forfeit his [profits], and the man who informs against him shall have half the fine, and [the profits] of the labour”.

Pearse Doherty, Sinn Féin finance spokesman, floated the idea of a more modern reward scheme for whistleblowers in February when the Oireachtas Finance Committee discussed the Law Reform Committee’s report on Regulatory Powers and Corporate Offences. Law Reform Commissioner, Tom O’Malley told the committee that although he did not personally disagree from a moral standpoint, he “would be anxious the rewards should be kept very modest so as to avoid the temptation to engage in false allegations”.

Although the US strictly regulates in a very progressive way, the Obama régime in particular waged a state-sponsored war against recalcitrants who blew the whistle against the government.

International bodies such as the UN and the EU preach and declaim about whistleblowing but noticeably hesitate to turn the lenses on themselves.

Ireland’s Protected Disclosures Act 2014 aims to protect people who raise concerns about possible wrongdoing in the workplace. Under the Act, you make a protected disclosure if you are a worker and you disclose relevant information in a particular way. Information is relevant if it came to your attention in connection with your work and you reasonably believe that it tends to show wrongdoing.

Wrongdoing is widely defined in the Act and includes:
• Commission of criminal offences;
• Failure to comply with legal obligations;
• Endangering the health and safety of individuals;
• Damaging the environment;
• Miscarriage of justice, misuse of public funds;
• Oppressive, discriminatory, grossly negligent or grossly mismanaged acts or omissions by a public body; and
• Concealment or destruction of information about any of the above wrongdoing. Wrongdoing can take place in or outside the State.

If it is the worker’s or the employer’s role to detect, investigate or prosecute any wrongdoing or if the wrongdoing reported relates to a person other than the employer, then it is not a wrongdoing for the purpose of the Act. For example, a member of the Garda who reports wrongdoing by a person outside of the Garda will not be covered by this Act, as the wrongdoing will not have been committed by his employer.

Even if the information is proved to be incorrect, whistleblowers are still protected by the Act provided they had a reasonable belief in the information.

It provides for redress for employees who are dismissed or otherwise penalised for having reported possible wrongdoing in the workplace.

The Act’s definition of the term worker includes: Employees or former employees; Trainees; People working under a contract for services; Independent contractors; Agency worker; People on work experience; and the Gardaí.

The legislation does not specifically cover volunteers, although many public bodies will continue to investigate reports of wrongdoing from volunteers as if they were protected disclosures.

Before the 2014 Act came into effect, some sectors, such as health, were already covered by protected disclosures legislation.

Ireland vaunts its Act for its recency and wide range. The law has been fixed here, albeit years too late. Ireland’s law ensures that it is now almost impossible to fire genuine Irish whistleblowers. For the future the INM model is perhaps the most likely. It illustrates that it will be difficult to fire whistleblowers but that fixing attitudes, ensuring whistleblowers are treated properly procedurally and bringing abusers of whistleblowers to account will be more difficult.

Moreover, the big idea of Ireland’s act, as with the EU approach, is to focus on internal whistleblowing procedures. But that may well not work in Ireland. It did not work in the INM case. Those who apply the internal procedure will have an interest in not exposing their collective corruption. So they will tend to deflect, ignore or retalliate.

The support or tolerance of whistleblowing depends on popular attitudes to corruption. Norway and Canada protect whistleblowers and take what they say seriously. Sweden provides that whistleblowers can be protected by an independent concilliator or mediator or trade union. They can act as a bu
buffer zone. This is no part of the Irish legislation.

After much lobbying the Proposed EU Directive on whistleblowing has abandoned the internal procedure as a compulsory port of first call for that precise reason.

In ‘Whistleblowing: Towards a New Theory’, Kate Kenny claims that describing whistleblowers as solitary actors struggling to achieve change discourages ideas of commonality and collective action. Instead she draws on critical organisation theory, specifically the theory of affective recognition which sees the self as inherently connected to others, a radically social self. Kenny suggests the root of the problem is that we stereotype whistleblowers as heroic, instead of as one of us, pursuing our interests even though they may be destroyed and afraid. She says society should “take responsibility for these people”.

Her book also moves away from descriptions of whistleblowing that are largely quantitative and descriptive towards an approach based on in-depth qualitative methods that gives a more nuanced understanding of people’s experiences to shed light on the famously ambiguous and poorly understood experience of speaking out which is often accompanied by suffering and struggle.

She notes that for the establishment whistleblowers are usually „engaging in impossible quasi psychotic speech that places them in a new category in which they are excluded and banished and not acceptable to the organisation. This primary exclusion then paves the way for a second categorisation that portrays hem as viable candidates for normative violence. From the perspective of colleagues and managers then, violence against whistleblowers is not violence because [the whistleblower is] not valid“. She says we need to change the systém not just institutionalise new ways of whistleblowing about it. In the end if we are sympathetic we “must recognise whistleblowers as a vulnerable group that needs protecting now“.
As regards the tendency of whistleblowers themselves to face false allegations, the Innocence Project board was addressed by the late Gerry Conlon of The Guildford Four. It was a visceral and extraordinary experience. He ranted, he raved and the substance of what he said amounted to this: you do not know what it is like to be falsely accused unless you yourself have been a victim of it and suffered accordingly.

And anyone who blows the whistle should contrast the sprightly and youthful Assange with the raving husk of a human being pulled from the Ecuadorian embassy in London.

(August 2019)