How to protect whistleblowers? The government begins processing the law.

BarcelonaSince 2019, a European Union directive has been in place requiring whistleblowers to be protected against corruption in both the public and private sectors, in order to prevent potential retaliation for reporting malpractice. The Spanish government has already transposed the regulations into its own law—which requires all entities to have internal and external reporting channels—and now the Catalan government is preparing to implement its own regulations, going beyond the internal reporting channels already in place. Recently, it has become clear that despite the existence of whistleblowers, those affected believe they are not receiving effective protection, which in Catalonia falls to the Anti-Fraud Office. In fact, the government itself admits that there are "legal loopholes" in the current legislative framework.

According to government sources consulted by ARA, this Tuesday the executive council will approve the preliminary report of the draft law on the whistleblower system and the protection of whistleblowers. A first step toward finalizing a regulation widely demanded by organizations fighting corruption and which Salvador Illa's administration plans to approve before the summer of next year. In fact, recently in an interview with this newspaper, the president of the Observatory Against Corruption, Itziar González, complained that measures like this one had been on the table since 2015 and that Ten years later, less than 1% of the measures had been approved. At first, the Government did not have it in its legislative plans for this year, but the president announced it as a measure to fight corruption when appeared in Parliament Following the outbreak of the Cerdán case.

What does the government's new law intend to regulate? According to the text to which this newspaper has had access, the current regulatory framework "raises doubts that have not been resolved by the state legislature, resulting in a series of shortcomings that negatively affect its efficiency and effectiveness, which, at the same time, may weaken the protection of whistleblowers and discourage them from reporting in the future." In this sense, the new law aims to "guarantee adequate and comprehensive protection for whistleblowers, ensuring their confidentiality, right to anonymity, and prohibiting any type of retaliation." "The regulations must be unified to provide legal certainty so that citizens feel safe when reporting." They should know that they will not be alone," said the general director of Open Government, Lara Torres, in statements to this newspaper, in addition to explaining that after the approval of this report, a one-month public consultation will be opened for all interested parties.

The Anti-Fraud Office, if it acts as it did during the processing of the state, is one of the entities susceptible to making allegations. Sources from the organization explain that, based on their experience as protectors, it is necessary to "redirect protected alerts to the defense of the public interest," unloading them from other "intersubjective conflicts that fall outside the scope of protection," and extending the scope of the law to people who are currently excluded as "witnesses." Consulted by this newspaper, the Observatory is pleased that the Government is promoting the new law, but warns that they want to be "co-producers" and are not satisfied with just the public consultation. In the previous legislature, work had already begun and no agreement was reached, since civil society and part of the The ERC government (not another) intended to go beyond state law and implement a "public integrity" standard.

The key points of the report presented by the Government

Doubts about the requirements to be an alerter

While state law only includes individuals as whistleblowers, the executive branch is considering expanding it to include legal entities, in addition to waiving the requirement for an employment relationship to be protected. "To the extent that state law includes contractors and suppliers as whistleblowers, it is worth considering whether, by analogy, an employee of an entity that receives public funds would also be a whistleblower," the text states. It also proposes developing a whistleblower statute to establish their rights and responsibilities in handling whistleblowers.

What can be reported?

The European directive is broad in its definition of what is reportable, as it refers to "violations of the legal system." It also mentions violations that have not materialized but where there are "reasonable grounds, doubts, or suspicions" of their commission. The Spanish law, on the other hand, refers to serious or very serious criminal or administrative violations, while the internal reporting system recently implemented by the Generalitat (Catalan Government) has a somewhat broader scope, referring to conduct or regulatory violations that represent a "threat or harm to the public interest." Given this lack of clarity, the government is preparing to fine-tune the definition so that there is no "doubt" about what can be reported.

Duplicate channels

State law establishes that there must be internal reporting channels – which the Generalitat already has – and also external channels which, in the case of the State, will be assumed by a newly created entity, the Independent Authority for the Protection of Whistleblowers, whose president, interviewed by ARA, The government was preparing to launch the machinery in November. However, in Catalonia, this authority is the Anti-Fraud Office, the first in the entire country to assume this responsibility.

The government believes there is confusion between internal and external channels and that it must be made clear that whistleblowers should be free to file their reports as they see fit. They also commit to establishing minimum standards so that internal reporting channels have "guarantees" and clarifying the extent to which all government reporting systems, such as reporting channels for sexual or workplace harassment, should be integrated.

Uncertainty about protective measures

The government also admits that there are problems of "uncertainty" about what measures to take to protect whistleblowers. Recently, for example, Esquerra denounced "maneuvers" to fire the manager of Tarragona Ràdio, protected by Antifrau. Itziar González, president of the Observatory against Corruption, explained to ARA recently that the system wasn't working and that protected people explained to them that they were being "crushed" without any help.

Impact on the local world

Despite the government's commitment to implementing all of these procedures, they promise not to increase the burden of obligations on local governments. Nor will they impose additional burdens on citizens and businesses, although they admit that the economic impact on private individuals will have to be assessed if additional measures are necessary.