Evidence of meeting #81 for Government Operations and Estimates in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was whistle-blowers.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Mark Worth  Manager, Blueprint for Free Speech, As an Individual
John Devitt  Chief Executive, Transparency International Ireland, As an Individual
Tom Devine  Legal Director, Government Accountability Project, As an Individual
Duff Conacher  Co-Founder, Democracy Watch

9:45 a.m.

Conservative

The Chair Conservative Tom Lukiwski

Unfortunately, we're out of time.

Mr. McCauley, take five minutes, please.

9:45 a.m.

Conservative

Kelly McCauley Conservative Edmonton West, AB

Gentlemen, thanks for your time today, and to some of you, welcome back.

Mr. Devine, I want to compliment you on your paper of November 25, “International Best Practices for Whistleblower Policies”. It's very good.

You spoke about protection for those who are about to be whistle-blowers. Can you expand on that a bit? How would you suggest we give protection for those about to be whistle-blowers?

9:45 a.m.

Legal Director, Government Accountability Project, As an Individual

Tom Devine

I'm not sure I heard your question properly.

9:45 a.m.

Conservative

Kelly McCauley Conservative Edmonton West, AB

You talked about our need to have protection for whistle-blowers, but also for those about to be whistle-blowers. How would that look?

9:45 a.m.

Legal Director, Government Accountability Project, As an Individual

Tom Devine

Basically, this is an expanded version of the protection against prior restraint. Often there will be pre-emptive strikes because someone is digging where you don't want them to look, they're asking the wrong question, they're raising challenges internally that aren't accusations or a formal list of undisclosures, but they're putting the wrong topics on the table. You want to act against them before they can become whistle-blowers and trigger their rights.

The law has to cover all the stages at which someone is perceived as a threat for exercising freedom of speech.

9:50 a.m.

Conservative

Kelly McCauley Conservative Edmonton West, AB

You also spoke about the need for whistle-blowers to have their day in court. Do you mean their day in court just for job reinstatement or for other resolutions?

9:50 a.m.

Legal Director, Government Accountability Project, As an Individual

Tom Devine

The minimum is to have the right to present your own evidence, testify on your own behalf on the public record, and challenge your accusers. It's a challenge to retaliation.

Some of the most effective whistle-blower laws enfranchise whistle-blowers to go to court on the attack against the corruption or abuse of power through private attorney general statutes. It came out of England's Magna Carta initially. The False Claims Act in the United States, which allows the whistle-blowers to file lawsuits challenging fraud in government contracts, is America's most effective anti-corruption law. It has increased the take against fraud in government contracts from an average of around $10 million a year to an average of more than a billion dollars a year, and more than $3 billion a year in the last few years.

9:50 a.m.

Conservative

Kelly McCauley Conservative Edmonton West, AB

Thanks.

Mr. Devitt, welcome back again. You spoke about having, in Ireland, direct access to the courts for job reinstatement. Is it for any other reason, or it solely for job reinstatement?

9:50 a.m.

Chief Executive, Transparency International Ireland, As an Individual

John Devitt

It's for job reinstatement pending the outcome of a hearing at the Workplace Relations Commission. The circuit court isn't making a determination on the outcome of the case. It's simply stating that the worker—the applicant in this case—has a case to be heard before the Workplace Relations Commission. Those cases might take two years or more to be heard, and pending that hearing, they should be reinstated by their employer.

9:50 a.m.

Conservative

Kelly McCauley Conservative Edmonton West, AB

Thank you.

You mentioned that three-quarters were successful, with obviously one-quarter unsuccessful. Were the one-quarter frivolous, or was it just not enough evidence? Do you have any idea why...?

9:50 a.m.

Chief Executive, Transparency International Ireland, As an Individual

John Devitt

When I say three-quarters, I mean there have been six applications so far through the Irish courts. Four have been successful and two unsuccessful. They were based in large part because the court determined in four instances that there was no protected disclosure made.

9:50 a.m.

Conservative

Kelly McCauley Conservative Edmonton West, AB

Thank you.

Mr. Worth, we have just a short amount of time. You spoke about having a dedicated person in each department for whistle-blowers to go to. We have that throughout the government, but one issue we've seen very clearly is that while many resources are put there, they're not very effective. You spoke about its being important to have someone to go to. We have that, but what we hear again is that the dedicated person who is supposed to be looking after whistle-blowers still has almost a conflict of interest, because they're reporting to the department inside the department, to the assistant deputy minister or the deputy minister.

How do we get to having whistle-blower protection people—key people in every department—who are there solely for the whistle-blower and not to look after the bureaucrats above them or to protect the department first?

April 4th, 2017 / 9:50 a.m.

Manager, Blueprint for Free Speech, As an Individual

Mark Worth

I think you can have a contact point, but you have to have a dedicated whistle-blower institution at the federal level or national level to enforce the rights. That way you avoid the conflict because the rights are enforced by a dedicated whistle-blower institution. However, I would argue that you still need a contact point within each government ministry or agency.

9:50 a.m.

Conservative

Kelly McCauley Conservative Edmonton West, AB

Thanks.

9:50 a.m.

Conservative

The Chair Conservative Tom Lukiwski

Thank you very much.

Madam Ratansi, you have five minutes, please.

9:50 a.m.

Liberal

Yasmin Ratansi Liberal Don Valley East, ON

Thank you all for coming.

Welcome, Mr. Worth.

My questions are threefold, and I'll ask them now so that I do not have to wait.

When you are giving us examples of successful protection, do you have data that tracks the type of whistle-blower, whether it's financial, environmental, or whatever, and what the intersectionality is? Are they women, men, financial officers? Who goes out and does it? Is there an evaluation mechanism for the whistle-blower act so that you could go and check it? I was looking at the U.S. one that Mr. Devine gave us, and it was in 1989 that they overhauled that whole thing.

Mr. Worth, I'll start with you, and then I'll go to Mr. Devine, Mr. Devitt, and Mr. Conacher.

9:55 a.m.

Manager, Blueprint for Free Speech, As an Individual

Mark Worth

We actually do have data that we can forward to you on the breakdown of reports made in countries like the U.K. and certain countries in eastern Europe that have whistle-blower institutions in place.

I don't want to generalize about whether it's mainly women or mainly men. Certainly, you have a lot of whistle-blowing in banking and finance, in education, in health care, in the delivery of public services like medicine or hospital care. Wherever people interact directly with an institution or with a public service you have a lot of whistle-blowing—public procurement, for example. My sense is that it is mainly men in some countries and that, in some countries, it's mainly women. You have a broad base of age groups represented, but I'm very happy to send to you and the entire committee breakdowns of data, if you would like.

9:55 a.m.

Liberal

Yasmin Ratansi Liberal Don Valley East, ON

Yes, and on evaluation mechanisms, if there are any.

Mr. Devine.

9:55 a.m.

Legal Director, Government Accountability Project, As an Individual

Tom Devine

There is really no particular type of whistle-blower. Wherever there is power, it can be abused, and people act on their consciences and challenge those abuses of power.

I would second Mark's insight that a particular sore spot that tends to accumulate whistle-blowers involves government contracts and procurement. That always seems to be the magnet for corruption, and it's easy to document that type of crime—

9:55 a.m.

Liberal

Yasmin Ratansi Liberal Don Valley East, ON

Mr. Devine, if you have data, would you send it to us? It would help us.

9:55 a.m.

Legal Director, Government Accountability Project, As an Individual

Tom Devine

Yes, the most impressive data would be on the success of the whistle-blower rights in the False Claims Act to challenge fraud in government contracts. The track record has been phenomenal. I'm glad to share that.

9:55 a.m.

Liberal

Yasmin Ratansi Liberal Don Valley East, ON

Okay, thank you.

Mr. Devitt.

9:55 a.m.

Chief Executive, Transparency International Ireland, As an Individual

John Devitt

Yes, we're more than happy to send you data that we're collecting through our helpline and legal advice centre. So far, we've found that more men are reporting than women, and that might be because they are working in centres where there is a higher risk of wrongdoing. We're finding that a lot of people are reporting concerns from the health care sector. That's the hot.... That's the one sector from where top people are reporting.

9:55 a.m.

Liberal

Yasmin Ratansi Liberal Don Valley East, ON

Have you an evaluation mechanism, as well?

9:55 a.m.

Chief Executive, Transparency International Ireland, As an Individual

John Devitt

Yes, the Department of Public Expenditure and Reform in Ireland is responsible for governing this data. We're helping them to do that, and we're helping monitor the experience of individual whistle-blowers from different government departments. I'm more than happy to send you information about this.