Opportunity Knocks - But Will Spain Answer?

The original Spanish version of this article appeared on ElDiario.es and can be accessed here

Spain’s lawmakers are back in Congress and on the move again. The question is: where are they going?

This week, the political party Ciudadanos has stepped forward pushing whistleblower protection near the top of its lawmaking agenda for this session. Today, June 17, it is asking Congress to debate its proposed legislation. Tomorrow, Congress will vote on it. 

A yes vote will mean that the Ciudadanos proposal will become the backbone around which the entire future of whistleblower protection in Spain will be wrapped.

The party’s forceful agenda-setting is a good step forward, given that Spain is long overdue for action in this area. Unfortunately, the law Ciudadanos has proposed is not as bold in its content as the party’s action in putting it there. 

After the arrival of the coronavirus, the world has learned we cannot go back to ‘how things were before’. Things have changed. Yet this proposal is a step back in time, to 2016, when Ciudadanos first put forward a whistleblower protection draft law to Congress.

Spain is legally required to apply the EU Directive (EU 2019/1937) in its own national law by the end of 2021. However, Ciudadanos’ proposal ignores much of the EU Directive.

The EU Directive says Spain must provide whistleblowers with reasonable protections if they are going to put their careers – and sometimes even their lives – on the line. Most public legal entities and private companies with more than 50 employees must provide a way for whistleblowers to make a disclosure when there are illegal acts. Those channels are not only mandatory, they must also be safe by keeping the whistleblower’s identity and any disclosures confidential.

The Ciudadanos’ proposal fails to establish this. It is broad, not specific, and silent in many places. 

The EU Directive also requires protections for whistleblowers who are revealing illegal acts across a range of areas that are listed specifically. These include product safety, animal health and welfare, food safety, environmental protection, data protection, consumer protection, transport safety, financial services, public procurement, and nuclear safety. And most relevant of all now, in public health.

Yet these areas are missing from the proposal debated today. 

The EU Directive includes a reference to protecting whistleblowers who need to go to the public with their disclosure in certain circumstances. Ciudadanos’ proposal is also silent on this. It only talks about a new national authority as the place to disclose. 

Having only one channel to report wrongdoing creates a single point of failure for the whistleblower.  

There must be many channels for whistleblowing to work as an effective anti-crime system. This may include, for example, the CNMC for those who cheat in the marketplace, robbing our retired parents of their savings. Or the regional anti-fraud agencies for those who pass paper bags of cash to political parties when no one is looking. Or the health regulator for those whose greed puts courageous health workers lives at risk unnecessarily – and thus our own lives, too. 

The proposal debated today was written for a time before the EU Parliament’s overwhelming passage of the law in April 2018 with 521 yes votes to just 29 No votes. Spain can have pride in this EU Directive; Spanish experts played a vital role in shaping the EU Directive into what it has become today.

The EU Directive is special; it is a law built from the ground up by grassroots efforts from Spain to Sweden. It was passed to give a voice to all of us to speak up when we see criminality, by protecting us from the fear of being punished for telling the truth.  

The authors of the EU Directive and the parliamentarians who passed it had a vision for this law that is beyond just narrow fraud. They foresaw that if a citizen can speak up freely when wrongdoing is happening all around, it will not only protect us from crime. It will also protect us from tyranny. The vision was a grand one; bringing a new era of ethical behaviour across Europe.

By excluding these channels, or being silent on them, the Ciudadanos’ proposed law misses all of this. It is bereft of things so core to the EU Directive that even if it passes, Spain would likely have to invent a whole new whistleblower law all over again just in order to be in compliance with the EU requirements for applying the union’s law to Spain’s.

This doesn’t mean Ciudadanos should not be part of the process to usher in Spain’s first ever national whistleblower protection law. Its presence is important, and its Members of Congress bring practical experience, amongst others, working as one of State Prosecutors. Their expertise could lift the quality of the law that must eventually be passed.

But this draft is looking backward, watching the rest of Europe drive away. There is already proposed legislation that has adopted the EU Directive as well as international standards waiting in the wings of the Congress. We propose it is better to choose something that fully complies with the EU Directive as the seed of Spain’s coming new national law. If not this, then build something new. But look forward. Because if COVID-19  has taught the world one thing it is that we must look forward to thrive.