Debating a whistle-blower protection act for employees of the government of Canada.
This article examines the recent debate over the adoption of legal protection for public servants working for the Government of Canada. Analysis will be built around the following argument. In philosophical terms, whistle-blowing is a morally ambiguous activity. In practical terms, there are significant costs involved, both to the person who discloses misconduct and the organization affected. Whistle-blowing should be considered only after all other means to prevent and to deal with wrongdoing have been tried. Owing to the factual and ethical complications and controversies involved with most allegations of wrongdoing, whistle-blowing is not an activity that lends itself to immutable rules. Passage of such a law would have a number of potential benefits, but available studies of jurisdictions where these laws exist suggest a limited impact on the actual number of cases of wrongdoing brought forward and limited effectiveness in protecting whistle-blowers against damage to their careers. Not all of the limits of the legislative approach can be explained by deficiencies in statutory construction and interpretation. Broader constitutional, legal, institutional and cultural factors play an important role in explaining why whistle-blowing laws usually do not live up to the promises of their most ardent proponents.
Based on this integrating theme, the analysis proceeds in the following four steps. First, whistle-blowing is defined, and the value dilemmas involved with the activity are identified. Once a pejorative term because it seemed to violate a number of social taboos, whistle-blowing has now acquired positive connotations, and the activity appears to be on the rise, the reasons for which will be examined below. Thirdly, the arguments for the replacement of the Government of Canada's internal disclosure policy with some legislated protection for whistle-blowers in the public service will be examined. The experience of other jurisdictions will be introduced to demonstrate the problematic impacts of a whistle-blowing law. Fourthly, the article examines the debates over the most contentious features of the proposed Public Servants Disclosure Protection Act. While the legal and institutional components of the proposed legislation are important, far more important to the prevention and remedying of wrongdoing are broader changes to the political and administrative cultures of the government.
The range of activities covered by the term "whistle-blowing" is potentially broad, with the result that ambiguity arises as to the term's precise meaning and scope. One major source on the topic defines whistle-blowing as "the disclosure by organization members (former or current) of illegal, immoral, or illegitimate practices under the control of their employers, to persons or organizations (internal or external) that may be able to take action to stop the wrongdoing." (3) This definition covers activity that may be immoral but not necessarily illegal. Other commentators omit references to immorality as being too subjective and therefore not easily defined. Gerald Vinten writes that "whistle-blowing involves the unauthorized disclosure of information that an employee reasonably believes evidences the contravention of any law, rule or regulation; codes of practice or professional standard; or involves the mismanagement, corruption, abuse of authority, or a danger to the public or a worker's health or safety." (4) This definition emphasizes the legalities of the situation. It omits explicit reference to immoral or unethical behaviour but incorporates the legal notion of what a reasonable person might believe about the perceived wrongness of an activity. By itemizing the types of misconduct, the definition introduces greater precision into the justifiable grounds for disclosure, but it probably also limits the scope of the legal protection provided to whistle-blowers.
Both of the preceding definitions were meant to apply to whistle-blowing in the private and the public sector. Within the public-sector context, Kenneth Kernaghan and John Langford define whistle-blowing as "a public servant's open disclosure and surreptitious leaking to persons beyond the boundaries of the individual's own agency or department of confidential information concerning a harmful act that a colleague or superior has committed, is contemplating, or is allowing to occur." (5) Several features of this definition should be noted. First, it does not consider disclosures by former employees to be acts of whistle-blowing. Secondly, it limits the label to situations where the disclosure of misconduct is made to outside parties. A law based on this definition, therefore, would not offer protection for internal disclosures. Thirdly, the definition includes "surreptitious leaking" of information to outside parties. Other commentators would argue that equating the two activities is inappropriate. There can be many reasons behind leaks other than the disclosure of wrongdoing, and often "leakers" are not willing to state their case in public. (6) Fourthly, the definition offers a more comprehensive and preventive approach than the two preceding definitions by referring to actions that are allowed to occur and/or actions that are being contemplated. One of the criticisms of whistle-blowing laws is that they mainly serve to deal with problems after the harm has been done.
Most definitions of whistle-blowing presume an employee-employer relationship. In other words, disclosures by journalists or ordinary citizens would not qualify as whistle-blowing. Restricting the definition to employees within an organization poses a potential problem. As more programs and services in Canada are being delivered by contractors and other orders of government, a singular employer-employee relationship does not exist and a whistle-blowing law might not apply. This raises the broader issue of extending the full apparatus of administrative laws--access-to-information, human rights, ombudsmen, and privacy protection--to the ever-expanding universe of public-private collaboration.
Most definitions of whistle-blowing focus on the initial disclosure of information and do not mention the potential consequences for the whistleblower and for the organization involved. A disclosure can trigger a chain of events that can be negative for both parties. Employees who blow the whistle might be praised by some for their integrity and courage, but they can also face criticism, hostility, harassment, stigma and sanctions as a result of their actions. Studies suggest that whistle-blowers pay a high price in terms of damage to their careers and their personal lives. (7) There are also costs to the organization and its employees from a whistle-blowing episode. Regardless of how a complaint is resolved, there is bound to be some cost in terms of expenses, staff time, productivity, damage to employee morale and/or loss of reputation for the organization. In the case of government organizations, these costs are ultimately borne by taxpayers. Finally, even if those individuals accused of wrongdoing are eventually cleared, there is usually lasting permanent damage to their reputations.
Not all situations of perceived wrongdoing justify whistle-blowing, and not all whistle-blowers are driven by purely altruistic motives. Ideally, the laws and administrative practices adopted by governments will encourage "constructive" whistle-blowing and discourage "negative" types of such activity. Unfortunately, what constitutes positive versus harmful whistle-blowing often involves facts in contention and value-laden judgements. There is, for example, debate in the literature over whether the motivations of the whistle-blower should matter in determining whether an action to disclose is justified and deserves protection. (8) As a way to encourage prospective whistle-blowers to reflect on both their motives and the consequences of their actions, many definitions of whistle-blowing require that a disclosure be made in good faith and that it relate to activity involving serious harm to society. There appear to be no careful empirical studies of how often whistle-blowers are in error in their perception of wrongdoing and/or act on a bad-faith basis, or on the extent to which actual, serious wrongdoing is corrected as a result of whistle-blowing.
Given the sensitive and often emotional nature of the whistle-blowing debate, commentators have seldom sought to apply the term in a precise and careful manner. There are, in fact, at least three types of whistle-blowing: internal disclosure, authorized external disclosure, and unauthorized external disclosure. These different types of whistle-blowing have been conflated in the Canadian debate, creating the impression that all whistle-blowing involves the unauthorized release of information. In fact, both in court rulings and in the existing administrative policy within the Government of Canada, there is a recognized right to blow the whistle internally. The proposed Public Servants Disclosure Protection Act covers only internal and authorized external disclosure by providing tests to ascertain whether disclosure is justified. As for unauthorized external disclosure, this has been declared a justifiable and protected activity under rather strictly defined conditions through a number of common law court cases, discussed briefly later.
In summary, finding agreement on a comprehensive definition of whistle-blowing is difficult. An "academic" definition may have to be broad in order to capture all types of activities related to whistle-blowing, including the consequences that flow from a decision to blow the whistle. On the other hand, an operational definition for legal purposes must be more precise on a number of key issues--as is discussed later. When it comes to a whistle-blowing law, "the devil is truly in the details." For example, the types of misconduct covered by the law will determine what activities are reported and will influence to some degree the frequency of such reporting.
The philosophical debate over whistle-blowing
Whistle-blowing is a legitimate but morally ambiguous form of dissent within organizations. Its legitimacy may depend on subjective judgements about the motivations and what procedures were followed by the whistleblower. Legitimacy also depends on the substance of the revelations, whether they deal with serious or trivial concerns. Legitimacy is a complex, value-laden notion about which people can strongly disagree. Not all whistle-blowing is legitimate, and there is always the potential that more harm than good can result from whistle-blowing.
The moral ambiguity of whistle-blowing can be seen by comparing its potential benefits to its potential drawbacks. (9) Whistle-blowing can be beneficial when it exposes wrongdoing, prevents or reduces harm to an organization and to society, brings to justice people responsible for wrongdoing, creates opportunities to correct processes and types of behaviour, enhances accountability generally within the public sector, and helps to restore public trust and confidence in government and its activities. In short, for public servants, blowing the whistle on wrongdoing can be seen as serving the public interest.
On the other hand, whistle-blowing can be seen as morally questionable because it involves the unauthorized disclosure of perceived wrongdoing, the levelling of accusations against others in the organization, and a breach of loyalty to the organization. It is seen as morally and practically impossible for an individual to be at once an antagonist towards an organization and a valued employee. In addition, whistle-blowing often involves going outside the normal lines of authority, damages the productivity, health and reputation of the organization, is mainly retrospective in its focus (confronting wrongdoing after it has occurred), and has the potential to be misguided and malicious in intent. One study of whistle-blowers argues they are unique characters because their behaviour represents a type of "idealism-cum-narcissism," which seeks to preserve the moral purity of their own identity. (10) When there are financial incentives and awards offered to encourage whistle-blowing, the moral ambiguity of the activity is increased because it can be seen as being done for the rewards.
Public servants contemplating the disclosure of information face difficult legal, organizational, personal and ethical questions, particularly because they work for organizations brought into existence to serve "the public interest." This phrase is more nebulous, subjective and controversial than the primary mandate of private firms to serve shareholders by maximizing profits and returns on investment. To ensure that public organizations promote and protect the public interest, they are made to operate within a complex web of laws and administrative rules. Prospective whistle-blowers in the public sector must determine what laws, administrative regulations or professional codes of conduct others have violated and how a disclosure on their part will conform to those rules. The illegality and/or impropriety of others' actions or inactions may not in itself justify blowing the whistle: the benefits to disclosing wrongdoing may be outweighed by the damage done to an organization, its programs, its employees, its clients and even the public at large. Deciding whether the wrongful activity justifies reporting is not always easy and straightforward. The perspectives of the whistle-blower, the leadership of the organization, outside groups, the media and the general public can be similarly informed about "the facts" of a particular case, but still differ seriously about what is "the right" course of action.
To summarize, whistle-blowing must not be a capricious matter; a strong moral case should exist for blowing the whistle. The whistle-blower should thoroughly investigate the situation and be confident of the facts as he or she understands them. The whistle-blower should be prepared to justify his or her actions by appeals to legal requirements and/or ethical principles and that more good than harm to a number of parties will result. Finally, whistle-blowers must understand the seriousness of their actions and be ready to assume accountability for them. At its core, the whistle-blowing debate is about the exercise of responsibility (doing what is right) and of accountability (being answerable for one's behaviour).
Is whistle-blowing on the rise?
There "appears" to be growing public support for whistle-blowing and more actual examples of the activity in Canada. The word "appears" has to be used, because most of our knowledge of whistle-blowing and whistleblowers is anecdotal and limited to a small number of high-profile cases. Three broad, related sets of factors have contributed to the greater frequency of public-sector whistle-blowing: a cultural shift in favour of the activity, changes to the composition of public services, and laws/rules that encourage whistle-blowing. (11)
Many cultural trends--both long term and short term, obvious and subtle --have led to a change in societal values towards whistle-blowing. During earlier decades, society looked less favourably on persons who revealed the wrongdoing of other individuals or organizations. Loyalty to employers and respect for authority were more strongly held values within society than is true today. Pejorative labels like "finks," "squealers," "informers" and "rats' were applied to people who blew the whistle. Their motives were assumed to be suspect--they were acting out of bitterness or revenge, for personal gain or simply passing judgement and claiming moral superiority. Instead of being heralded as public heroes, whistle-blowers were seen as villains who by their acts of disloyalty caused harm to their employer, fellow employees and even to the clients served by the organization.
Over the past three decades, the action of blowing the whistle has become more respected, even expected, within society. The extent of the cultural shift in favour of whistle-blowing varies among countries and situations. However, there are many signs that whistle-blowers are admired more than despised today. In the year 2002, Time magazine awarded its Person of the Year award to three women who had the courage to speak up about wrong-doings in their respective organizations: Sherron Watkins of Enron, Coleen Rowley of the FBI and Cynthia Cooper of WorldCom. Other famous whistleblowers have seen their actions immortalized in movies. Organizations promoting whistle-blowing and lobbying for stronger laws to protect whistleblowers have appeared in most countries, particularly in the United States, where a small growth industry has arisen with numerous advocacy groups, web sites, helplines, newsletters and specialized law practices under whistle-blower protection statutes that exist at the national level and in forty states. (12) Cultural spillover from the United States has undoubtedly had the impact of increasing public debate on this topic in Canada, but the number of organizations and the sophistication of their lobbying campaigns have not matched developments below the forty-ninth parallel. For example, there is no umbrella organization in Canada that brings various whistle-blowing organizations together. Perhaps the closest any organization comes to playing this role is Democracy Watch, which lobbies for a number of political reforms including whistle-blowing on behalf of thirty-one citizen groups. Public-sector unions, particularly at the national level, have also become active in promoting laws to protect whistle-blowers.
There has also been the "demonstration effect" of developments in other countries that have constitutional arrangements and traditions similar to Canada's. In the United Kingdom, the advocacy group called Public Concern at Work lobbied for approximately ten years to obtain the passage in 1998 of the Public Interest Disclosure Act (P1DA). The PIDA creates a set of rules for whistle-blowing in the public, private and the voluntary sectors, with a limited number of exempted occupations. (13) In Australia, the national government, all but one of the six states (Victoria), and both of the territories now offer some kind of statutory framework for whistle-blowing in the public sector. (14) In 2000, New Zealand adopted the Protected Disclosures Act for its public-sector employees. On the basis of this trend, proponents of a whistle-blowing law point out that Canada is alone among leading democracies in not having effective national legislation to encourage and to protect whistle-blowers, whether in the public or the private sector.
There now appears to be a consensus among Canadians that whistleblowers contribute positively to society and that stronger legal protection against retaliation is needed. One of the public-sector unions campaigning for a law covering federal government employees cited a public opinion survey that showed eighty-nine per cent support among Canadians. (15) In addition to the cultural shift described above, such strong support reflects the series of scandals that have hit governments all across the country over the past two decades, such as the Westray mine disaster, the Somalia inquiry, the tainted-blood scandal, the Walkerton water tragedy and others. The operation of access-to-information laws and their increasing use by parliamentarians and the media to expose wrongdoing in government has added to public anger and cynicism towards the political system. Aggressive and often sensational media coverage of wrongdoing has contributed to the public perception that governments are corrupt, incompetent or both. Traditionally thought of as deferential towards government elites, Canadians have over the past three decades displayed declining levels of trust and confidence in political institutions, governments and the people who run them. A study released by the polling firm Ekos Research Inc. in June 2003 showed that over sixty per cent of Canadians had a low or moderate level of trust in government. (16) Most of the disillusionment is targeted at politicians and political parties, but negative perceptions of the public service and its members also exist. Both groups of actors are seen as unwilling to admit their mistakes and to accept accountability. The perception is that both engage in cover-ups and refuse to pay a serious price in terms of their careers when they are caught abusing their authority or are guilty of mismanaging public resources. The public's frustration with and cynicism towards governments provides fertile soil in which to plant the idea of a law to encourage conscientious individuals to come forward with disclosures of wrongdoing.
The number of public-sector employees prepared to raise concerns about wrongdoing in government appears to be on the rise. Several factors might explain this trend. First, changing values within the culture of Canadian society in general, and within the political culture in particular, are reflected within the administrative culture of the public service. What were once regarded as important organizational values--like loyalty and respect for authority--have been challenged. There is more acceptance of the idea that employees are free to reach their own conclusions about what is the "right" course of action when fundamental values clash and more recognition that they have rights, including freedom of expression. Over the past four decades, but particularly since the adoption of the Charter of Rights and Freedoms in 1982, governments have created in and around their public services a structure of laws and policies to promote and uphold the rights of employees. The list of such laws would include the Public Service Staff Relations Act, 1967; the Official Languages Act, 1969; the Canadian Human Rights Act, 1977; and the various federal and provincial laws on workplace health and safety. All of these initiatives create a consciousness among employees that they have rights that must be respected. Adoption of a whistle-blower protection law would continue this trend. It is not accidental that public-sector unions have been in the forefront of the campaign for a whistle-blowing law. Not only does this reflect a desire to protect their members and to serve the public good, it also represents a lack of trust in the political and administrative leadership of government that has imposed downsizing, restricted the scope of collective bargaining and blamed lower-level employees for inefficiencies and "screw-ups."
Governments have become involved in many new fields of public policy--such as reproductive technology, environmental protection, biotechnology, information technology and many others--where highly specialized scientific and other professional knowledge is required. In these new fields, Parliament is forced by a lack of public consensus, a lack of expertise, a lack of time, by a ministerial and bureaucratic preference for policy and administrative flexibility, and sometimes by habit, to pass laws in the most general language, leaving the interpretation and application of those laws up to professionals in the public service, presumably under the watchful eye of the responsible ministers. The result is that public servants are required to exercise extensive discretion and professional judgement in complicated factual, legal and ethical circumstances, leaving more scope for misconduct to occur.
Recent management trends within the public service have further increased the autonomy of public servants and the risks that mistakes will be made. Under the reform banner of "new public management," steps have been taken to decentralize decision-making within government, to "empower" public servants to exercise their judgement and to increase their "responsiveness" to clients. There is much talk about improving access to services, especially through the use of information technology, and encouraging greater transparency concerning the operation of departments and programs. A twenty-three-year-old Access to Information Act has recently undergone a review, leading to numerous recommendations to strengthen the public's right to know. (17) These managerial changes are producing a new public-service culture, important components of which are a citizen-centred approach to the delivery of services, an insistence on results and adherence to higher ethical standards. A whistle-blower law seems to fit with these new cultural norms.
In summary, these trends within the bureaucracy combine to create more situations where public servants must be guided by their professional judgements and consciences, not by orders from above or by established procedures. As a consequence, there are greater risks of legal and ethical mistakes or lapses. And, because of more openness and external scrutiny, there is more chance that such mistakes will be discovered. Finally, the evolving public-service culture makes it more legitimate than in the past for public servants to heed their professional consciences and to report wrongdoing when they encounter it. This does not mean that bureaucratic secrecy has ceased to be a problem or that public servants who go public with concerns will not face stigma and hostility in their workplace. The argument is simply that there may be more occasions when whistle-blowing is justified, and it has become a more accepted behaviour within the bureaucracy and the wider political system.
Definitive statements about the need for and the frequency of whistle-blowing cannot be made on the basis of available knowledge. (18) As mentioned earlier, there is no universal agreement about what constitutes an act of whistle-blowing. There is also no organization in Canada that maintains a comprehensive inventory of whistle-blowing cases. Most of our knowledge, therefore, is based on the high-profile cases that attract widespread media attention. There may be many other situations (especially when whistle-blowing is internal) where problems are resolved in a low-key, expeditious manner. Conversely, it is also possible that serious situations of wrongdoing could go unreported, be covered up or not be seriously dealt with by the organization involved. The problems involved with gathering data on the need for a whistle-blower protection law and the evaluative criteria to assess its effectiveness are discussed later. Whatever the facts about the extent and the exposure of serious wrongdoing, a consensus has emerged over the past two decades that the Government of Canada should provide some form of legal protection for conscientious employees who report misconduct.
The genesis of the Public Servants Disclosure Protection bill
In addition to the broad trends and developments described above, a number of more immediate events affected the timing and the contents of the whistle-blowing law presented by the minority Liberal government to the thirty-eighth Parliament in October 2004. A promise to introduce such legislation had been part of the 1993 Liberal Party "Red Book" of commitments. Paul Martin was co-chair of the committee that drafted the Red Book. However, no such legislation was introduced by the Chretien government (in which Paul Martin served as finance minister) during its decade in office.
Cynics might simply attribute the failure of the Chretien government to enact whistle-blowing legislation to the habit of political parties of promising something in opposition and failing to deliver when they gain office. Other critics might explain the inaction by pointing to the desire of all governments for no surprises, a condition that might be threatened by the adoption of a whistle-blowing law. Others might point to former Prime Minister Chretien's leadership style, characterized by tight control over cabinet, caucus, Parliament and the public service. (19) Carefully managing the government's agenda was a way to prevent embarrassing revelations and negative publicity. Examples of this control mentality were the Chretien government's approach to the review of the Access to Information Act (by means of a public-service task force rather than a parliamentary committee), its well publicized battles with the information commissioner over the release of government information, and its curtailment of public investigations into wrongdoing, such as the closure of the Somalia Commission of Inquiry.
On the other hand, there were pressures towards the adoption of such a law. During its decade in office, the Chretien government was rocked by a number of scandals and crises in which the misconduct might have been detected earlier had there been encouragement and legal protection for whistle-blowers. Several MPS and senators--including Liberals--introduced private members' bills, and there were hearings on the topic before the Senate standing committee on national finance and the House of Commons standing committee on government operations and estimates. (20) This seems to be a case where Parliament actually helped to initiate policy by performing its scrutiny function of the actions of the political and administrative executive. In effect, Parliament served as a "policy incubator," keeping the fledgling idea of legal protection for whistle-blowers alive in the face of resistance within the political and administrative cultures of government.
In response to various controversies, existing advocacy groups and new ones increased their lobbying efforts to obtain legislation and referred to the fact that Canada had fallen behind other democratic countries in not providing legal protection for whistle-blowers. At least two court cases involving disciplinary action against employees accused of the unauthorized, external disclosure of information have gone before the Supreme Court of Canada, where a freedom-of-expression defence under the Charter of Rights and Freedoms had been invoked. When the disclosed wrongdoing has been serious, the courts have recognized a limited defence that the unauthorized release of information to a lawful authority can be in "the public interest." (21) However, employees have to be sure of the facts, have exhausted internal remedies, and have acted with reasonableness and good faith to qualify for limited protection against penalties, including dismissal.
Another trend that prepared the ground for a policy on disclosure was the discussion of the importance of values and ethics to the functioning of a professional public service, meant to inspire the trust and confidence of Canadians. A key event in this process was the publication in 1996 of the report of a task force of deputy ministers entitled A Strong Foundation. The report had recommended a policy on disclosure of wrongdoing. Eventually, in June 2003, the president of the Treasury Board announced the adoption of "The Values and Ethics Code for the Public Service," which describes four interwoven sets of values--democratic, professional, ethical and people values--as well as revised rules to avoid conflicts of interest, measures respecting post-employment conduct, and guidelines respecting gifts and other benefits. Adherence to the code was made a condition of employment, and breaches to the code were designated as one of the five types of wrongdoing to be reported under the "internal disclosure policy" (Treasury Board Policy on the Internal Disclosure of Information Concerning Wrongdoing in the Workplace), or IDP, adopted in 2001.
The IDP was adopted in November 2001 as an administrative measure to encourage public servants to report to responsible authorities examples of misconduct and mal-administration in their workplaces. A public-service integrity officer (PSIO) was appointed by the government to provide advice to public servants about possible disclosures of wrongdoing, to receive reports of wrongdoing, and to protect from reprisals public servants who report wrongdoing in good faith. The PSIO was "housed" within the Treasury Board Secretariat but was meant to operate independently of ministers and central agencies. In his first annual report for the year 2002-03, the PSIO declared that the IDP lacked visibility and credibility with the public service because it was not based on a statute passed by Parliament and was not enforced by an independent parliamentary agency. (22) Responding to the report, the minister responsible for the public service (Lucienne Robilliard, president of the Treasury Board) indicated that the Chretien government had no immediate plans to introduce legislation.
During the fall of 2003, legal protection for whistle-blowers became a significant issue in the Senate committee examining the Public Service Modernization Act (then known as Bill C-25). Several senators proposed to amend the bill to include a whistle-blowing clause. Had this occurred, passing Bill C-25 would be delayed because it would have to be referred back to the House of Commons for harmonization of the wording. To avoid this problem, the president of the Treasury Board agreed to appoint the "Working Group on the Disclosure of Wrongdoing." Headed by Professor Kenneth Kernaghan, a distinguished Canadian expert on government ethics, the majority of the five-member working group was on the public record in favour of the adoption of some form of statutory protection for whistleblowers. This group included Dr. Edward Keyserlingk, the public-service integrity officer. Given the predispositions of the working group members and the recent high-profile controversies over charges of corruption and gross mismanagement, it would have been astounding if the working group had not recommended disclosure protection legislation for public servants.
The terms of reference for the working group were broad and implied that non-legislative approaches to disclosure could be the basis for future policy. (23) The working group was given four months in which to examine the Canadian experience of less than two years under the administratively based IDP, the experience of other governments that had earlier adopted legal protection for whistle-blowers, and possible alternative approaches to the promotion of supportive and safe environments for public servants to report various kinds of misconduct.
No one should have been surprised when, in January 2004, the report of the working group recommended a statutory basis for the protection of public servants disclosing wrongdoing. It is noteworthy, however, that the working group described "the basic operational approach" established by the existing administrative policy on internal disclosure to be "fundamentally sound." The report stated that the existing model addressed the needs of the public service and conformed to the Canadian political and social reality. But it went on to conclude that there was "a compelling need for major improvements or refinements in key areas" and these could only be accomplished through legislation. "A legislative approach that highlights and encourages 'rightdoing,'" according to the report, "could be an important mechanism to promote a milieu in which public servants are positively supported in ethical behaviors." (24) The working group favoured a disclosure regime as part of a broader, legislated framework of values and ethics for the public service. While disclosure regimes could be instrumental in bringing individual cases of wrongdoing to light, their contribution to the promotion of ethical government was likely to be "relatively modest." This acknowledgement of the limits of any disclosure regime, whether administratively or legislatively based, is important to the analysis presented later in this article.
Parliamentary and outside pressure on the Chretien government to adopt whistle-blower protection was increased by a series of high-profile controversies, most notably the so-called "HRDC fiasco," the "Radwanski affair," and the "sponsorship scandal." It was in response to financial and staffing improprieties by Mr. George Radwanski, Canada's privacy commissioner, that the House of Commons standing committee on government operations and estimates established a subcommittee to study whistle-blowing. In November 2003, the full committee issued a report recommending legislation. (25) On the Senate side of Parliament, the national finance committee held hearings on private member bills calling for legislative protection for whistle-blowers. Finally, on 10 February 2004, the Office of the Auditor General of Canada tabled its report on the provision of contracts to advertising firms "friendly" with the governing Liberal Party for which value for money was not obtained. This last development, the so-called "sponsorship scandal," was the culmination of a lengthy process pushing the government towards the adoption of a law on whistle-blowing.
Anticipating the sponsorship report, on 31 January 2004, the minister responsible for a new agency, Public Service Human Resources Management Canada, announced he would propose a bill to the Chretien cabinet that would prevent retaliation against federal public servants who exposed serious wrongdoing. On 22 March 2004, the government tabled the Public Servants Disclosure Protection bill in the House of Commons. Contrary to the usual parliamentary practice in which bills are approved in principle at second reading and referred to committee for detailed review, the bill was referred to the government operations and estimates committee (GOEC) of the House of Commons after first reading. This allowed greater potential scope for the committee to propose amendments. During April and May 2004, the GOEC heard testimony from expert witnesses on the bill. Almost unanimously, the witnesses complained that the bill was weak and inadequate. In May 2004, when Prime Minister Paul Martin called a federal election, consideration of the bill was suspended. When the resulting minority Liberal government convened Parliament, president of Treasury Board Reg Alcock introduced on 8 October 2004 a revised Public Servants Disclosure Protection bill (now known as Bill C-11), which, after debates on first reading on 13 and 14 October, was referred to GOEC for review and possible amendment. At the time this article was written, committee hearings on the bill were still under way. It is likely that the vast majority of witnesses will follow all of the opposition parties in Parliament in criticizing the revised bill as not doing enough to encourage and/or to protect whistle-blowers.
The remainder of this article will argue that the case for legislation is not as straightforward and persuasive as the proponents presume. This view is based on an examination of the limited experience in Canada with the internal disclosure policy and the comparative experience of those jurisdictions where whistle-blower laws exist. There is little doubt that a bill on whistle-blowing will be passed in the current or a subsequent Parliament. However, there is the very real danger that the benefits of such a law are being oversold. There is far from unanimous agreement on the key issues involved with whistle-blower protection. The experiences of other jurisdictions suggest that law-making on whistle-blowing involves experimentation in which the lessons learned from the practice of administering a statute usually leads to subsequent amendments. Few jurisdictions have found on their first try the desirable balance among the values of serving the public interest, supporting loyalty to the employer, and upholding the employee's right to freedom of expression.
Is a whistle-blowing law necessary?
There are both symbolic and practical arguments for replacing the current administrative policy with a law setting forth the conditions for legitimate whistle-blowing and the legal protections provided to federal public servants who act in good faith to expose serious wrongdoing. Advocates of legislation, like the PISO, recognize that the passage of a law is not a panacea to solve problems of wrongdoing and to overcome most employees' natural reluctance to speak out against their own organization. Structural, cultural and attitudinal changes within both the political and administrative domains of government will have to take place for legislation to work as intended.
Passing a law, however, could send a strong symbolic message that Parliament and the government view whistle-blowing as a legitimate activity. The worth of a law would be less in the immediate impact of promoting an increase in the number of cases of wrongdoing exposed and more in signalling a shift in the official attitude towards whistle-blowers. No longer would they be seen as disloyal informants betraying a trust; instead they would be seen as conscientious public servants revealing the truth. The process of parliamentary debate and a multiparty consensus on a law would be educational, add to the legitimacy of the policy, and make it harder for future governments to roll back protections for whistle-blowers if disclosures proved to be politically embarrassing. Passage of a law could also introduce greater precision on the key issues and more procedural safeguards than are found in the current administrative policy. Not only would a law increase the understanding and confidence of employees in the process, it would also provide them with greater legal protection in the worst-case scenario of having to challenge their employer in court to deal with wrongful dismissal or lesser but serious damage to their careers. The fact that other national and regional governments in other countries have adopted whistle-blowing laws indicates that it is possible to achieve the appropriate balance between loyalty and dissent in drafting such laws and that Canada could learn from the experience of other jurisdictions. This is the case for a whistle-blower law being made by the proponents.
A powerful spokesperson for the adoption of a law has been Canada's first PSIO. Dr. Keyserlingk was appointed by the cabinet on the recommendation of the prime minister in November 2001, at the time when the IDP was coming into force. Responsibility for administering policy was delegated to deputy ministers, but the PSIO was to perform monitoring and mediation roles. The PSIO is responsible for investigating and making recommendations to deputy ministers for corrective action when wrongdoing is established and when employees believe they have been unfairly punished for making legitimate disclosures. (26)
Even though the office had been in operation for just over a year, the PSIO used his annual report for 2002-03 to call for the replacement of the existing administrative policy on whistle-blowing with a statute passed by Parliament to be enforced by an independent parliamentary agency. For a number of reasons, it can be argued that the PSIO was premature in pronouncing the IDP a failure and oversold the potential benefits of legislation in terms of encouraging whistle-blowing and protecting employees who disclose wrongdoing.
In its first year of operation, Dr. Keyserlingk noted that his office handled only 105 complaints. With 168,000 employees in the "core" public service covered by the IDP, and with all the accusations of wrongdoing and mismanagement that were directed at the Chretien government in recent years, the PSIO concluded his office was not getting all the cases it was created to handle. The office never, for example, received a complaint about the financial mismanagement and harassment of employees that took place in the Office of the Privacy Commissioner under its former commissioner, George Radwanski, who was forced to resign in 2003. Nor did the office hear from any employees of Public Works and Government Services, despite the sponsorship and advertising scandal that rocked that department over the past few years.
Dr. Keyserlingk suggested that most public servants were unlikely to approach the PSIO with allegations, for the following six reasons:
--lack of awareness of the IDP and the PSIO;
--uncertainty about what constitutes reportable wrongdoing;
--fears of reprisal concerns about confidentiality;
--a perception that the PSIO cannot be neutral and effective in dealing with wrongdoing because it is housed within the Treasury Board Secretariat, which represents the employer; and
--a preference, in some cases, to use internal departmental routes to report wrongdoing. (27)
Not until the PSIO was better known, inspired greater confidence, and had more authority to confront wrongdoing, Dr. Keyserlingk suggested, would the annual volume of its cases be "an accurate barometer of wrongdoing in the public service."
Assessment of the arguments made by the PSIO
Several comments can be made about the basis for Dr. Keyserlingk's conclusion that the administrative policy was a failure and needed to be replaced with a law protecting whistle-blowers. At first glance, the total of only 105 complaints to the PSIO in the first year might seem low. However, it is impossible to know on the basis of the available evidence how many problems of wrongdoing went unreported and/or were resolved at the departmental level and thus did not reach the PSIO. For comparative purposes, in the Government of Australia, which had a public service of approximately 125,000 employees, there were during 2002-03 only seventeen complaints of wrongdoing brought to the attention of the two central bodies--the public-service commissioner and the merit protection commissioner (both offices discussed below)--responsible for overseeing the operation of a whistle-blower protection law on a government-wide basis. (28) The Australian data and the comparative analysis presented below suggest that passage of the law will not drastically change peoples' natural reluctance to cause trouble for themselves and for their employer.
A full evaluation of the effectiveness of any whistle-blowing process, whether administratively or legally based, would require valid and reliable evidence on a number of dimensions:
--the number and type of cases of wrongdoings that are reported by employees and the number of cases that go unreported;
--the various reasons and their relative frequency for why employees are reluctant or unwilling to come forward with disclosures of wrongdoing;
--whether the administrative policy is perceived to, and does in fact, create confidential and safe channels to communicate about wrongdoing;
--how accessible, fair, balanced and complete the procedures are for dealing with disclosures;
--whether there is, in fact, protection against reprisal for employees who engage in good-faith disclosure; and
--how often wrongdoing is corrected and whether systems/procedures are put in place to prevent its recurrence.
Gathering such information would be difficult and could risk the confidentiality needed to make any policy work as intended.
Even if such information were available, it would not answer the broader question of the overall success of a policy or law intended to prevent wrongdoing and to encourage disclosure. This is because the aims of such policies are usually multiple. At a minimum, they involve the dual aims of allowing disclosure and of protecting against reprisal employees who act in good faith. However, the strongest proponents of a law see it as encouraging, in the words of the PSIO, a culture in which whistle-blowing is regarded as a "meritorious act" by public servants committed to serving "the public interest." (29) The idea of creating a "whistle-blowing culture" almost suggests there is no moral ambiguity or ethical dilemmas associated with the disclosure of information.
Wrapping a policy on whistle-blowing in the language of "the public interest" follows a long tradition in public administration and sends the powerful symbolic message that the activity is inherently virtuous and merits encouragement. Despite its frequent use in statutes and regulations, the phrase "the public interest" is vague and controversial. Virginia Held refers to the "public interest" as "a spur to conscience and to deliberation" and as what public servants would do "if they saw clearly, thought rationally, acted disinterestedly and benevolently." (30) According to Kernaghan and Langford, it represents an ethical standard by which actions in the public sector should be judged. (31) They identify a number of approaches to defining the public interest. No one denies the importance and the value of public servants developing a professional ethos and conscience--an internalized sense of what is right--and the moral reasoning used to apply that sense. However, to tell public servants in the abstract to act in the public good may not offer much practical guidance on whether they should blow the whistle in particular circumstances. Making whistle-blowing synonymous with serving the public interest adds to the subjectivity and controversy surrounding the activity.
Other immediate and longer-term aims are often associated with whistleblower laws. They are meant to allow for the correction of wrongdoing and the prevention of its recurrence. However, there appear to be no systematic studies in any jurisdiction of how often whistle-blowers are accurate in their allegations of wrongdoing, how much harm they cause when they are wrong, how often disclosure leads to the correction of the wrongdoing, and how often policies and procedures adopted in response to complaints are effective in preventing recurrence.
More broadly and longer-term, a whistle-blowing law is seen as part of a larger set of initiatives intended to encourage "right doing" within the public service. The working group that reported to the president of the Treasury Board in January 2004 recommended that the proposed legislation include a section emphasizing this aim and called for the adoption of the Values and Ethics Code. In combination with a law, the code would supposedly encourage more responsible and ethical behaviour in the public service, which over time would help to restore public trust and confidence in government and enhance the quality of Canadian democracy. These are broad and noble aims, but it will be impossible, except in a very imprecise and impressionistic way, to attribute any improvement on any of these dimensions to the passage of a law.
In summary, the PSIO's judgement that the IDP was a failure was premature and incomplete. It appears to have been strongly influenced by the immediate context of scandals and by the complaints of the public-sector unions that their members did not have confidence in the administrative policy on internal disclosure and in the office responsible for overseeing its operations. Now the Government of Canada is committed to a legislative approach, and the Public Servants Disclosure Protection bill is before the House of Commons as this article is being sent to publication. It almost certainly will pass before the current Parliament is prorogued for another federal election. As an answer to the practical and ethical issues involved with whistle-blowing, the benefits of legislation have been oversold by many of the advocacy groups. This could lead to disappointment when the impact of the legislation does not match the expectations that surround it at this stage. The sections below examine two of the key issues involved with the bill and provide some comparative analysis.
The key features of a whistle-blowing law
When it comes to a whistle-blowing law, the keys to success are the detailed provisions of statutes and how they are applied in practice, more than the underlying policy ideas. Drafting such laws is not a precise science in which lawmakers can predict with certainty how the detailed provisions will operate in practice, including how they will be interpreted by the courts. Among the key issues to be decided in legislation are
--whether all public institutions and private organizations performing "public" functions will be covered;
--whether only employees or others (unions, advocacy groups, the media, citizens) can use an act;
--what types of wrongdoing will be covered;
--whether the same office will conduct investigation, mediation and the protection of whistle-blowers;
--whether employees will have to exhaust departmental procedures before approaching the whistle-blowing protection office;
--how retaliation against whistle-blowers will be defined and how long protection will exist;
--whether there will be a reverse onus on the employer to demonstrate that adverse decisions on a whistle-blowing employee were not a reprisal;
--what remedies for employees judged to be adversely affected will be specified in legislation; and
--what sorts of consequences there will be for employees who engage in reckless or malicious accusations of wrongdoing and for managers who engage in reprisal against employees who act in good faith.
In answering these questions, few jurisdictions where laws exist have found on their first try an "ideal" balance among the values of serving the public interest, demonstrating loyalty to the employer, and upholding the employee's right of freedom of expression. While there are potentially wide-ranging issues involved with the development of legislation, most of the Canadian debate has focused on the issue of whether a separate, independent agency serving parliament should oversee the operations of a new law.
The case for an independent agency to deal with whistle-blowing
The location of the PSIO within the Treasury Board Secretariat is seen by Dr. Keyserlingk as a fundamental flaw of the current internal disclosure policy. (32) Serving the Treasury Board committee of cabinet, the TBS is seen as too close to government thinking and immediate political concerns to inspire credibility and confidence with employees and public-sector unions who represent them. The PSIO is meant to be independent from the government and in his first annual report Dr. Keyserlingk indicated that no minister, TBS official or deputy minister had ever tried to influence the PSIO's case decisions. Similarily, the Public Service Alliance of Canada, the largest public-sector union, has stated that the PSIO had operated as independently of government control as possible under the circumstances. Given these assessments, the problem seems to be mainly one of perception. Moving the PSIO outside of government to become an independent agent of Parliament (like the information commissioner, privacy commissioner, auditor general, and others) would supposedly inspire greater confidence among employees that they can raise matters of serious wrongdoing in a confidential and safe manner.
The location of the TBS as the "home" for the office to oversee the IDP was probably not the best choice. As the department that serves ministers on the Treasury Board, the TBS is perceived as closely attuned to government concerns. As the representative of the government for purposes of expenditure management and collective bargaining, it is seen as a "control"-oriented body. On the other hand, it does deal with important human-resource management issues and is also one of two departments--the other being Justice Canada - responsible for the operation of the Access to Information Act. However, as Dr. Keyserlingk correctly pointed out, the IDP'S primary objective of uncovering serious wrongdoing "has little or nothing to do with human resource and employment matters. The wrongdoing it envisages is far more serious and of public interest in nature and implication." (33)
As part of the general bureaucracy, the PSIO is seen to share an administrative culture and a set of behavioural norms that prevail throughout government. For the PSIO to remain focused on its primary mission of supporting and protecting whistle-blowers, advocates believe there must be greater organizational separation from other parts of government. Being part of "the system," the PSIO is seen to be part of "the problem." Advocates for a new, independent body argue that the principal criterion for choice should be the complete confidence of employees in the integrity and the fairness of a new watchdog agency and the individual who leads it.
In debating the best institutional arrangements for the implementation of a whistle-blowing law, it is necessary to distinguish the educational/advocacy role of promoting awareness and acceptance of whistle-blowing as legitimate from the quasi-judicial role of adjudicating and upholding the rights of employees who believe they are victims as a result of making disclosures. Whatever organizational arrangements and procedural mechanisms are adopted should reflect and be consistent with the constitutional principles and the traditional values of the public service, while recognizing that ethical standards and accountability expectations have been heightened during the past several decades.
The difficulty of finding the ideal institutional arrangements that balance all of the above considerations and others can be seen in the Canadian debates over whistle-blowing protection that have taken place during the past decade. During 2000, the Senate's standing committee on national finance held hearings on a private member's bill (Bill S-13) to create a legislative framework to govern whistle-blowing by federal public servants. The sponsor of the bill was Senator Noel Kinsella. Under the Constitution, the senator's bill could not involve the expenditure of new money, since all spending requests must originate with the Crown (i.e., the cabinet) and be introduced first in the House of Commons. Therefore, the senator's bill proposed to make the existing Public Service Commission (PSC) responsible for overseeing a new act. His real preference, however, was for a "public interest commissioner" appointed by and accountable to Parliament--an option discussed below.
The organizations and individuals who appeared before the Senate national finance committee in 2000 expressed different opinions on the best institution to oversee the operation of a whistle-blowing law. For example, the Public Service Alliance of Canada, the largest public-sector union in the federal public service, favoured using either the information commissioner or the privacy commissioner, partly because this would avoid the expense of setting up a new body. Yet, two years later, in a November 2003 submission to the Treasury Board Secretariat, PSAC called for separate legislation on whistle-blowing, the incorporation of additional protection for whistleblowers into the statutory framework for collective bargaining, and the creation of an independent agency reporting to Parliament to monitor practice under the two laws. (34)
A second public-service union, the Professional Institute of Public Service of Canada (PIPSC), also told the Senate national finance committee back in 2000 that the PSC was not the most appropriate body to oversee a whistleblower protection law. (35) The fact that the president of the PSC was appointed by the cabinet on the recommendation of the prime minister and the commission received its budget through the Treasury Board committee of cabinet meant that the institution identified too closely with government concerns. As part of the "deputy minister community," PSC president was part of the top-level administrative culture of no surprises for ministers, if at all possible. As a senior public servant, the president would be naturally reluctant to criticize her deputy-ministerial colleagues for ignoring wrongdoing or unfairly disciplining their employees. Finally, the portion of public employees covered by the PSC was shrinking, as public-service functions were being devolved to special operating agencies, Crown corporations, outside contractors, and other third parties.
In 2000, therefore, PIPSC recommended the appointment of a public-interest auditor within the Office of the Auditor General to oversee the operation of a whistle-blowing law. This auditor would not reveal to the employer (or anyone else) the identity of persons making allegations of wrongdoing. The auditor could be authorized to order the government to respond to allegations of wrongdoing and to publish reports on whether problems had been corrected. In terms of protecting whistle-blowers against reprisals, PIPSC favoured amended labour legislation involving the use of adjudicators and arbitrators.
By 2003 and 2004, PXPSC had somewhat revised its position and now favoured a separate, independent agency reporting directly to Parliament to oversee the operation of a new whistle-blower law. Reacting to the first bill presented by the Martin government in the spring of 2004, PIPSC told a parliamentary committee that the proposed scheme was "worse than business as usual; it will gag every employee." (36) The PIPSC argued that the public-interest integrity commissioner should not be part of the public service and report to a minister but instead should be an independent and impartial officer who reported directly to Parliament. It also recommended that employees disclosing wrongdoing be entitled to representation by bargaining agents at all stages of the disclosure process. This was intended to balance the superior authority and resources of the employer and to minimize the number of incorrect or misdirected complaints employees might pursue.
In summary, the proponents of a whistle-blower law insist that an essential requirement is the substitution of "parliamentary agency" for the existing "bureaucratic agency." What is being proposed is another office of Parliament, an officer who would possess strong investigative powers combined with authority to stop wrongdoing, to block retaliation against conscientious whistle-blowers, and to provide remedies when employees suffer career damage as a result of good-faith disclosures of wrongdoing. In the case of the public-sector unions, they want the additional guarantee that complaints about reprisals will be eligible for adjudication and arbitration under collective bargaining legislation and that any negative action taken or threatened against a whistle-blower during a five-year period after a disclosure will be deemed a reprisal unless the employer can prove otherwise.
These policy prescriptions for a revised whistle-blowing regime rest on a number of assumptions. They reflect and reinforce a lack of trust in the political and administrative leadership within government. They assume that only an arm's-length, parliamentary body with powers like those of a quasi-judicial tribunal can inspire confidence in employees to safely disclose wrongdoing and that they will be fully protected against reprisals. They dismiss or downplay the fact that other bodies within government, such as the Public Service Commission, have a track record of protecting individual employees and dispensing justice on an administrative basis. Allowing an agency serving Parliament to have actual order-making powers to correct wrongdoing and/or to reverse departmental decisions with respect to whistle-blowers could compromise the constitutional principle of the responsible minister being accountable for all the actions of his or her department and could limit the delegated managerial authority of the deputy minister to run the department on a daily basis. Modifying the constitutional relationships between the executive and legislative functions should not be done casually in response to immediate events and a prevailing public mood of mistrust.
Less fundamentally, accepting the union's position that discipline of employees in relation to whistle-blowing activity becomes a grieve-able matter under collective bargaining legislation could cause confusion and possible contradictory outcomes if two processes--a whistle-blower protection and a grievance process--were established. On the issue of whether a separate tribunal is required, it is useful to examine briefly, Canada's experience with officers of Parliament, as well as the institutional arrangements and experiences of other countries.
The responsibilities and accountabilities of Canadian officers of Parliament
Until the forced resignation of the privacy commissioner in June 2003, the roles of officers of Parliament were a relatively little noticed and even less understood part of the Canadian political systems. (37) Officers of Parliament emerged over time in an ad hoc manner so there is no consistency in their relationships to Parliament and the executive. Depending on who is doing the counting, there are between five to eight such bodies, with the offices of Auditor General, Information and Privacy Commissioners, the Commissioner of Official Languages and the Chief Electoral Officer being the most prominent. In general terms, such offices were created to assist Parliament in holding ministers directly and the bureaucracy indirectly accountable for their exercise of authority and for their performance. As well, they exist to promote and to protect the rights of Canadians to fair elections, access to government information, personal privacy, linguistic fairness, merit in appointments to the public service and other cherished values. As "watchdog" agencies serving Parliament, officers of Parliament have undoubtedly increased the institution's capacity, both potential and actual, to conduct scrutiny of both elected and appointed officials who exercise authority and control expenditures in the federal government. Adding a new "public interest" commissioner to oversee a whistle-blowing law would appear at first glance to extend a desirable trend of using auxiliary agencies to supplement Parliament's efforts to hold both ministers and bureaucrats accountable.
However, for several reasons the case for a new parliamentary agency to oversee whistle-blowing activities is not as conclusive as the proponents presume. First, Parliament has not made the most effective use possible of the investigations and reports produced by the existing five to eight independent agencies that currently serve it. The exceptions are the reports from the offices of the Auditor General and the Commissioner of Official Languages, which are reviewed annually by a parliamentary committee(s) and lead to the requirement for government officials to explain and defend their actions. (38)
It must be remembered that the existing parliamentary "watchdogs" can "bark," but they cannot "bite": they can investigate, publicize and persuade, but they do not have the authority to issue binding rulings. This basic limit on their powers was probably one of the reasons why governments agreed over time to the creation of such offices, which were bound to be critical of government performance. To pass a law granting a "public interest" commissioner for whistle-blowing actual power to order the correction of wrongdoing and/or the reinstatement of punished whistle-blowers will be opposed by governments as an infringement on the principles of collective and individual ministerial responsibility, and this is not merely a convenient political excuse for inaction. Granting a new officer of Parliament the right to play a direct, controlling role in the operation of departments and non-departmental bodies would be a fundamental constitutional change. It might be possible to design a hybrid model in which a new commissioner's orders to correct wrongdoing or to protect whistle-blowers could be subject to an override by an individual minister or the full cabinet, but this seems just to add another step without offering the guarantee that corrective actions will be taken and that reprisals against employees will be prevented.
Granting a new commissioner the power to issue orders could very well change the dynamic and the effectiveness of his or her relationships with other institutions in terms of promoting a culture of openness and mediating disagreements between employees and employers. An ombudsman-like model that depends on informality and moral suasion is usually more economical and expeditious than a quasi-judicial approach. The information commissioner, who performs an analogous role to that proposed for a whistle-blowing commissioner, resolves well over ninety per cent of his cases involving the public's right to know without having to go to court. During the 2001-02 review of the Access to Information Act, the information commissioner, Mr. John Reid, indicated that he did not need or want order-making powers. Persuasion and publicity can be sources of significant influence on both ministers and senior public servants who never welcome "report cards" from commissioners that present negative findings about their use of authority and resources.
At this time, there are significant issues related to the responsibilities, powers and accountabilities of officers of Parliament that are supposed to be studied and resolved in the aftermath of the Radwanski affair. Whether such officers are primarily responsible to Parliament or to the government and central agencies is a general question that can only be answered by addressing more specific questions: Who should appoint and remove such officers? How should the budgets and staffing arrangements for such offices be decided? What powers should be granted to such officers? What mechanisms should Parliament and the government use to hold them accountable? There is also the issue of whether a uniform and consistent approach to the establishment and operation of such offices is desirable and possible. Greater clarity on these issues would be helpful as part of the debate over whether a new parliamentary agency for whistle-blowing matters is required.
The Public Servants Disclosure Protection Act proposes to make the Public Service Commission responsible for overseeing the disclosure process and for protecting employees against reprisals. All three opposition parties were critical of this feature of the bill when it was debated in the Commons. (39) The PSC was seen as too close to the government of the day to be independent and objective. The president of the esc is appointed by the cabinet on the recommendation of the prime minister, and the commission's budget is set by the Treasury Board committee of cabinet. In the past, the esc has described itself as an independent agency assisting Parliament to uphold the merit principle in staffing. This caused some commentators (including one parliamentary committee) to include the esc in a list of officers of Parliament. In fact, the PSC is most accurately described as an independent executive agency that serves the government and reports to Parliament through a responsible minister. As part of the shifting constellation of central agencies within the Government of Canada, the esc has been involved in shaping the "government-wide" agenda for the public service. The president of the esc has been part of the "deputy-minister" community and might therefore be reluctant to criticize her senior colleagues in the bureaucracy.
These criticisms of the PSC as a potential supervisory body have been weakened by recent changes within government arising from the adoption in 2004 of the Public Service Modernization Act. This legislation clarified the roles of a number of organizations operating in the human resource management field. Under the law, there will eventually be greater delegation of authority to deputy ministers over human resource matters, including staffing, with less frequent involvement of central agencies like the Treasury Board Secretariat, the Privy Council Office and the esc. Put simply, the PSC is evolving towards an audit function regarding the exercise of delegated authority by deputy ministers. Under the new arrangements the president of the esc no longer participates in the regular meetings of deputy ministers and this makes it potentially easier for the PSC to be critical of how particular deputy ministers have dealt with the concerns of whistle-blowers. As noted in the PSIO's first annual report, the majority of the whistle-blowing com plaints involved human resource management issues. Combining oversight of the human resource management process and of whistle-blowing in the PSC would, therefore, seem to make sense, and the commission has the experience and staff capability that a fledgling, small parliamentary agency would not have. Finally, the new president of the PSC, Maria Barrados (formerly of the Office of the Auditor General of Canada), has made clear her intention to operate independently and to provide strict monitoring of the use of delegated staffing authority.
Under the revised bill, "chief executives" (deputy ministers and their counterparts in non-departmental bodies) are required to establish disclosure policies and procedures. Responding to complaints about the first bill, Bill C-11, makes it clear that public servants are free to approach the PSIO directly if they believe it would be inappropriate and risky for them to complain about wrongdoing through the chain of command within their own department.
Despite these changes, critics maintain that the bill will not encourage employees to raise concerns and will not offer them sufficient protection against reprisals. They insist that the PSC remains too much a part of government to be a defender of whistle-blowing and whistle-blowers. Yet, in other cabinet-parliamentary systems where whistle-blower protection laws have existed for some time, the pattern has been to use public-service commissions to uphold the law. The comparative examination of four countries presented in the next section of this article reveals that, even with a law, only a tiny percentage of employees are prepared to engage in disclosure and, further, that the institutional arrangements established under such laws are far less important than the climate and cultures that exist within particular organizations at a given point.
Drawing lessons from four countries
The experience of other countries suggests disappointment with the impact of new whistle-blowing laws, especially on the part of those organizations and individuals who lobbied most strenuously for their adoption. The general failure of new laws elsewhere is at least grounds for caution in making claims for the benefits of legislation and for insisting on a specific type of body to oversee its operation.
For purposes of drawing possible comparative lessons, let us start with the experience of the national government in Australia. Its Parliament adopted the Public Interest Disclosure Act in 1994, and in 1999 replaced it with the whistle-blowing provisions of the Public Service Act (PSA). The new PSA works in conjunction with a Code of Conduct intended to encourage ethical behaviour in government. During 2002-03, only two per cent (twenty of 936 investigations) of suspected breaches of the code were instigated as a result of a disclosure made under the whistle-blowing provisions. (40)
In Australia, agency heads (equivalent to deputy ministers in Canada) are required to establish procedures, having due regard for procedural fairness, for inquiring into whistle-blowing reports. Employees can also go directly to the offices of the Public Service Commissioner or the Merit Protection Commissioner when a report to an agency head might be inappropriate or when the employee is not satisfied with the inquiry conducted by his or her department. Both bodies are part of government, with the merit protection commissioner being a statutory officer located within the Office of the Public Service Commissioner. The number of complaints brought before the two commissioners remains small--a total of seventeen in 2002-03 and only fourteen in 2001-02. (41) Moreover, surveys of agencies and employees revealed that more than thirty per cent of Australian agencies had not by 2003 developed measures to make employees aware of whistle-blowing provisions, and twenty-one per cent of employees indicated they would take no action if they observed a senior official violating the Public Service Code of Conduct for fear that they would suffer some kind of reprisal as a result. (42) A parliamentary report in 2002 called for the ombudsman, an officer of Parliament, to assume an overall supervisory role for whistle-blowing.
New Zealand adopted a Protected Disclosure Act in 2000, which came into force on 1 January 2001, so there has been a limited time-period for the act to have an impact. A systematic, in-depth review of its operation does not appear to be available. In 2003, the government appointed a lawyer to conduct a brief, interim review of its operation. Her report, which was tabled in Parliament in December 2003, concluded that the act "had only limited use and some of it had been inappropriate." (43) Apparently, the chief problem was that employees feared disclosures could not be made anonymously through the procedures established under the act.
In New Zealand's case, it is the parliamentary ombudsman who oversees the operation of the Protected Disclosure Act. The ombudsman provides advice on the kinds of disclosures protected under the act, the manner in which information may be disclosed, and the protections/remedies available to employees if disclosure of serious wrongdoings leads to retaliation. Although the ombudsman has no power to require a department to take action on wrongdoing or on the alleged unfair treatment of employees, the opportunity to report to Parliament provides an incentive for ministers and departments to take his recommendations seriously. The absence of "order-making" power in the hands of the ombudsman allows for a more flexible, expeditious and creative problem-solving process than would be the case under a formal, legal structure and process. As noted above, even with an officer of Parliament overseeing the act, the actual number of whistle-blower cases in New Zealand has remained small.
The Parliament of the United Kingdom adopted its Public Interest Disclosure Act (PIDA) in 1998 in the aftermath of a number of scandals, most notably a series of infant deaths in a pediatric cardiac program in a Bristol hospital. At the time of its adoption, PIDA was seen to be the "gold standard" for whistle-blower protection laws, mainly because it covered (with some limited exceptions) people working in both the private and the public sector, including in central and local governments. (44) The act creates a two-tiered approach to the handling of disclosures, with an onus placed on employees first to seek remedies to wrongdoing through normal channels. In the case of civil servants, they are expected to complain within their department or agency to line managers. In exceptional circumstances, complaints can be made directly to civil-service commissioners. In terms of providing protection to whistle-blowers, the PIDA case incorporated the relevant sections of the Employment Rights Act, 1996, which involve appeals to employment tribunals. Complaints of reprisal have to be brought in the first instance to an employment tribunal; the aggrieved employee cannot simply institute a civil action in the courts against the employer. Tribunals have the authority to order remedies, including financial compensation and the reinstatement of a dismissed employee.
It is important to note that in relation to the civil service, PIDA operates in conjunction with the Civil Service Code first adopted in 1996, which forms part of the terms of employment for every civil servant. A discussion paper and a draft bill that were to lead to the incorporation of the code into law were released by the Blair government in November 2004. Principle 10 of the Code prohibits unauthorized disclosure of confidential information, and Principle 11 requires civil servants to disclose illegal, unethical, or unconstitutional behaviour or mal-administration based on procedures laid down in their individual departments. If the departmental response is seen as inadequate, civil servants can report to the civil-service commissioners. In practice, the administratively based code has provided the real basis for the implementation of PIDA within the civil service.
It appears that no full review of the PIDA has been undertaken. However, its initial impact on the frequency of whistle-blowing was limited. One of the reasons was that the law began its parliamentary life, as a private member's bill that the Blair government felt politically; compelled to pass. After its adoption, it was a few years before the government funded and promoted the act. Also, the PIDA creates a very complicated and legalistic set of structures and procedures governing whistle-blowing activity that can be confusing and intimidating for employees, who will probably require the assistance of unions and/or lawyers to understand and use.
In 2002, PCAW, the advocacy group that had campaigned for the law, reported on its attempt to study the impact of the PIDA. Monitoring its operation, the group complained, was made difficult by the decision of the Department of Trade and Industry (which is responsible for the implementation of the act) to keep the substance of every PIDA secret until there is a published tribunal decision. This meant that any information about the nature of the wrongdoing and reprisals is kept off the public record if an employee complaint is settled prior to a tribunal decision. (45) Despite this problem, PCAW believed that employment tribunals and the appeal courts had applied the PIDA rigorously to protect whistle-blowers. This pattern of decisions had encouraged employers to develop and to actively promote their own disclosure policies as a way to uncover wrongdoing, to forestall negative publicity, and to limit employee claims under the PIDA. As the above discussion makes clear, there is a strong employment protection emphasis in the U.K. model.
The final jurisdiction to be reviewed is the United States, a country whose constitutional and political system is fundamentally different from that in Canada. The American system is based on an underlying suspicion of concentration of power within government and involves elaborate series of institutional arrangements based on division of powers and checks and balances. Reflecting this philosophy, the U.S. has led the world in passing laws at the national and the state level to encourage whistle-blowing and to protect whistle-blowers. Writing in 2001 on behalf of an organization committed to strong whistle-blower laws, Tom Devine concluded, based on a review of laws and court cases over twenty-three years, that existing laws were "largely symbolic and therefore counterproductive. Employees had risked retaliation thinking they had genuine protection, when in reality there was no realistic prospect they could maintain their careers." (46)
In the United States, the protection against wrongful dismissal in common law and in labour relations law proved to be more effective in terms of damages awarded by the courts than the protection supposedly offered by whistle-blowing statutes. (47) In many statutes, the time-frame available for invoking protection, usually sixty to ninety days, is limited, whereas common-law suits do not involve such limits. This fact is a partial explanation for why relatively few whistle-blowing cases actually proceed all the way to court. Not only do whistle-blowers risk damage to their careers, hostility in the work place or disruptions to their personal lives, there is also no guarantee that steps to correct wrongdoing will be taken. According to Devine, studies in the United States indicate that, more than fear of retaliation, pessimism that nothing will be done leads to employee silence about wrongdoing.
At the national level in the U.S., the constitutional principles of separation of powers meant that Congress played a major role in securing the passage of the Whistle-blower Protection Act (WPA), and over the years it has taken steps to strengthen the law. However, actual implementation of the law is entrusted to two agencies that, though described as independent, are led by officials appointed by the president (subject to congressional confirmation) and are located within the executive branch. The two agencies charged with upholding the WPA are the Office of the Special Council (OSC) and the Merit Systems Protection Board (MSPB). The authorities and relationships of these two offices are too complicated to be described fully here, so only their main roles will be highlighted. The OSC serves as a safe and secure channel for employees who wish to disclose wrongdoing, and it investigates complaints from people who allege they have suffered reprisals as a result of disclosing information about misconduct. The MSPB deals with appeals or stay requests from employees who believe they have been discriminated against because of their whistle-blowing activity.
Despite the influential role played by Congress in the passage and strengthening of the WPA, implementation of the act is entrusted to executive agencies rather than to an independent agency directly serving the legislative branch. Also, the recent U.S. experience indicates the importance of leadership--perhaps more important than institutional arrangements--to the upholding of the principles of such acts. Appointed to lead the OSC in 1998, Elaine Kaplan is credited with restoring integrity to the office by actively promoting its mission and aggressively defending the rights of whistle-blowers during a period when appeal courts were interpreting the law strictly and narrowly. (48) When it seemed clear that President Bush would not renew her five-year term, Ms Kaplan resigned in May 2003. Advocates of whistle-blowing have suggested that the Bush administration's choice for the position would send a strong signal about its commitment to the principles of the WPA. This case and others suggest that leadership skills, commitment and credibility can make a significant difference in how whistleblower laws are interpreted and applied.
The above brief reviews of the institutional arrangements and experiences of four jurisdictions do not allow for easy or definitive conclusions about what will work best for Canada. This is true for a number of reasons. With the exception of the United States, the experience with whistle-blower laws in the other three countries is relatively recent. There is limited, largely anecdotal evidence on how the laws work in practice, as opposed to "official" descriptions of how they are intended to work. Evaluating the success of the laws elsewhere is difficult because we lack agreement on a definition of effectiveness. Does a high volume of disclosures suggest that a law is working? Or, is the small number of cases involving the most serious types of wrongdoing a better indicator of success?
The four countries examined above have different institutional arrangements to protect whistle-blowers. Among the three cabinet-parliamentary systems, only New Zealand at this point uses an officer of Parliament (the ombudsman) to oversee their act. Australia and the United Kingdom rely, in effect, on their civil-service commissions, which are part of government. Likewise, in the United States, the bodies created to uphold the WFA are found in the executive branch and are still described as independent.
Borrowing from other countries is possible but must be done with caution. Whatever organizational arrangements and procedures are adopted for Canada, they should reflect and be consistent with our constitutional principles and the traditional values of the public service, but they should also recognize that those principles and values are undergoing debate and modification as a result of external and internal changes in the role of governments and in light of heightened ethical standards and accountability expectations of the public. None of the countries examined above has created a "whistle-blower's paradise" in which people feel completely protected against retaliation. It appears that, almost regardless of the legal and institutional arrangements adopted, it remains a tiny minority of people who are prepared to appear disloyal to their organization, to risk stigma and even hostility from their colleagues, to draw attention to themselves and perhaps attract unwanted publicity, and ultimately perhaps to suffer significant damage to their professional and private lives as a consequence of blowing the whistle.
Most of the available literature focuses on what happens to the whistle-blowers; far less attention has been paid to the remedial purposes of such laws. How often were whistle-blowers wrong in their allegations of wrongdoing or acting in bad faith? What harms to other individuals and to organizations did they cause? How often was the wrongdoing corrected as a result of the whistle-blowing, and did the corrective measures prevent its reoccurrence? What were the short- and longer-term impacts of whistle-blowing on the productivity and the culture/climate of the affected organizations? These are difficult, if not impossible, questions to answer empirically, and there is, in fact, little careful evidence available.
The generally disappointing record of whistle-blower laws elsewhere and the mixed, incomplete evidence about what needs to be done to uphold the principles of such laws should be reason enough for Canadian reformers to be more cautious in predicting that the adoption of law will transform cultures and norms of behaviour within public organizations. The comparative evidence suggests that finding the appropriate institutional arrangements to balance the range of values and interests affected by whistle-blowing is far more difficult than appears to be the case at first glance.
The public service is not an island unto itself. It is very open to outside influences, especially through the political and media processes that often amplify, distort and exaggerate the extent of the problems inside of government. In all of the countries studied above, calls for the adoption of whistle-blowing laws have come in the midst of political and media frenzy involving allegations of serious wrongdoing. Such situations are not the best circumstances to identify objectively the need for such laws and to debate carefully their structural and procedural components. Canada is no exception in this regard. Given the current climate of cynicism and mistrust towards government, it is not surprising to find widespread public support for the adoption of a whistle-blowing law. Of all the institutions of Canadian government, it is bodies like the Office of the Auditor General and the Supreme Court that have retained or fallen least in public esteem--a fact that reflects the anti-politics and anti-bureaucratic public mood of the day. Placement of responsibility for the interpretation and enforcement of a whistle-blowing law in the hands of a seemingly independent and objective institution like a new officer of Parliament would both reflect and reinforce the public's suspicion that widespread wrongdoing and cover-ups are a pervasive feature of government. The evidence for this negative and pessimistic conclusion is not compelling.
The clear trend in many jurisdictions has been to encourage whistle-blowing through statutory action to protect employees who engage in responsible, good-faith disclosure of serious wrongdoing within public organizations. Public opinion has shifted to become strongly in favour of whistle-blowing to prevent and to punish corruption and wrongdoing. There is far less moral ambiguity associated with the activity than in the past. Whistle-blowers have been transformed from villains to superheroes, at least when their courageous decisions to come forward serve a popular cause. Legislation creating a safe, confidential process of disclosure supervised by an independent and adequately resourced body that is insulated from political and bureaucratic pressures is seen as the essential first step to changing the behaviour and culture within public organizations. Experience elsewhere, however, indicates that enacting realistic and successful whistle-blower laws is less straightforward and more difficult than the advocates suggest.
Even advocates of a whistle-blowing law accept that reliance on an internal disclosure procedure is preferable to external whistle-blowing, both for the organization and the employee. An internal process gives the organization the opportunity to correct wrongdoing and avoid the investigations and negative publicity that usually accomplish external whistle-blowing. A properly structured, resourced, operated and supported internal disclosure policy has a better prospect of allowing ethically concerned employees to identify with their organization and continue their career progress within it after they have raised their concerns. The Public Servants Disclosure Protection bill involves recognizing that an effective IDP and a general law on whistle-blowing can be complementary approaches to the promotion of a culture of "right-doing" and climate of openness. A whistle-blower law could require employees to exhaust internal remedies before taking their concerns outside of the organization, and this would provide organizations with an incentive to develop effective internal disclosure policies.
Everyone agrees that education to promote ethical behaviour, to prevent wrongdoing, and to allow for responsible dissent within public-sector organizations should be emphasized over the enforcement of rules to encourage and to protect whistle-blowers. Over the past several years, the Government of Canada has been developing a set of policies, structures and activities to promote awareness of and adherence to a set of values by which public servants should be governed in their professional conduct. In June 2003, the Values and Ethics Code for the Public Service came into effect. Given that the code has been in place for just a year and the IDP has operated for approximately three years, it is premature to call the administrative policy approach a failure, especially when the criteria of success have not been well defined.
Canada will soon join other countries in having a whistle-blower protection law. Depending on the final provisions, the law could alter longstanding constitutional principles and traditions--such as ministerial responsibility and the relationships between executive and parliamentary functions--in ways that have not been adequately recognized and debated in the course of the parliamentary consideration of the Public Servants Disclosure Protection bill. It is likely that before final parliamentary passage, provisions to use the president of the esc to oversee a new law will be changed to provide for the creation of a new officer of Parliament, someone who is appointed with Parliament's approval and reporting directly to Parliament and who can conduct independent investigations and render administrative justice. This assumption ignores the history of independent executive agencies providing oversight and administrative justice within the executive. This includes the PSC, but also a number of other investigative bodies, particularly within the Justice portfolio. The rejection of the concept of an independent agency within the executive reflects the prevailing suspicion of the political and administrative leadership within government, as expressed most forcefully by the public service unions representing employees of the Government of Canada. If this suspicion is applied more generally, it will undermine confidence in a range of functions currently performed within government independently of ministerial and central agency control.
Adoption of a whistle-blower law and related procedures would add to the complexity of the legal environment of the federal public service--a continuation of a trend under way since the 1960s. However, studies elsewhere suggest that an increased reliance on legal rules and procedures to resolve employee complaints tends to displace substantive aims of various types of administrative justice when public managers feel obliged to focus on adversarial relations, legal criteria in decision-making and legal sanctions. Laws, regulations, codes and enforcement procedures have very real limits in terms of promoting ethical conduct and they have a cost. Flexibility, trust, collegiality, communication, and non-adversarial approaches to the resolution of disagreements tend to be displaced when relationships are subject to legal requirements.
This article has argued that whistle-blowing is a morally ambiguous activity and that its practical consequences for the organization, the employees and the public are always a mixture of positives and negatives. Adversarial and theatrical parliamentary debates, leading to frenzied media coverage, have contributed to the public perception that corruption and mismanagement are rampant on both the political and the administrative sides of government. This has produced an exaggerated image of the problems, especially in terms of ethical norms and behaviour of the vast majority of public servants. It has also led to a simplistic faith in the contribution of a whistle-blower law to reinforcing and galvanizing an existing subjective sense of professional responsibility within the public service. The success of the law will depend to a limited extent on its detailed provisions--such as the procedures for disclosure and the institution selected to supervise the process--but success will mainly depend on a political and administrative culture in government that supports ethical awareness, critical ethical thinking, and responsible behaviour.
(1) News release and bill downloaded from Public Service Human Resources Management Agency of Canada web site at http://www.hrma-agrh.gc.ca/media/20041008-nr_e.asp.
(3) Marcia P. Miceli and Janet P. Near, Blowing the Whistle: The Organizational and Legal Implications for Companies and Employers (Toronto: Maxwell Macmillan Canada, 1992), p. 45.
(4) Gerald Vinton, "Whistle-blowing: Corporate help or hindrance," Management Decision 30, no. 1 (1992), p. 44. See also P.B. Jib, "Whistle-blowing: A restrictive definition and interpretation," Journal of Business Ethics 21, no. 1 (August 1999), pp. 79-94.
(5) Kenneth Kemaghan and John Langford, The Responsible Public Servant (Halifax: institute for Research in Public Policy, 2001), p. 94.
(6) Stephen Hess, "Leaks and other informal communication," Society 22, no. 2 (January/February 1985), pp. 20-9.
(7) C. Fred Alford, Whistle-blowers: Broken Lives and Organizational Power (Ithaca, N.Y.: Cornell University Press, 2001).
(8) Elletta Sangrey Callahan and John W. Collins, "Employee attitudes toward whistle-blowing--Management and policy implications," Journal of Business Ethics 11, no. 12 (December 1992), pp. 939-48.
(9) Alford, Whistle-blowers, p. 150.
(10) On the ethics of whistle-blowing, see Sissela Bok, Secrets: on the Ethics of Concealment and Revelation (Oxford: Oxford University Press, 1984); R. Duska, "Whistle-blowing and Employee Loyalty," in T. Bauchamp and N. Bowie, eds., Ethic Theory and Business (Upper Saddle River, N.J.: Prentice Hall, 1997); James J. Fletcher, Jeanne M. Sorrell and Mary Cipriano Silva, "Whistle-blowing as a failure of organizational ethics," Journal of Issues in Nursing (December 1998), at http://www.nursingworld.org/ojin/topic8/topic8_3.htm; Philip H. Jos, Mark E. Tompkins and Steve W. Hays, "In praise of difficult people: A portrait of the committed whistleblower," Public Administration Review 49, no. 6 (November/December 1989), pp. 55261; Nick Perry "Indecent exposures: Theorizing whistle-blowing," Organization Studies 19, no. 2 (Spring 1998), pp. 235-57; and Gerald Vinter, ed., Whistle-blowing: Subversion or Corporate Citizenship (London: Paul Chapman Educational, 1994).
(11) Roberta Ann Johnson, Whistle-Blowing: When it Works--and Why (London: Lynne Rienner, 2002).
(12) See Stephen M. Kohn, Concepts and Procedures in Whistle-blower Law (Westport: Quorum Books, 2001). See the web sites for the National Whistle-blower Centre at http://www.whistle-blowers.org/federal/htm and for the Government Accountability Project at http://www.whistle-blower.org/ www.oraction.htm.
(13) See John Bowers, Jack Mitchell and Jeremy Lewis, Whistle-blowing: The New Law (London: Sweet and Maxwell, 1999) for a detailed analysis of the origins and contents of the U.K. law. The web site for the advocacy group Public Concern at Work is found at http://www.pcaw.co.uk. See also James Gobert and Maurice Punch, "Whistle-blowers, the public interest and the Public Interest Disclosure Act 1998," Modern Law Review 63, no. 1 (January 2000), pp. 25-54.
(14) Australia, Parliament, Senate, Finance and Public Administration Committee, Report on the Public Interest Disclosure Bill 2001 (Canberra: Commonwealth of Australia, 2002); and Australia, Parliament, Senate, Select Committee, Report on Public Interest Whistle-blowing (Canberra: Commonwealth of Australia, 1994).
(15) Public Service Alliance of Canada, "'Whistle-blower Protection.' Presentation to the Treasury Board, November 2003," Public Service Alliance of Canada (web site) ([Ottawa]: [PSAC], ), at http://www.psac-afpc.org/elections/ask_whistleblower-e.htm.
(16) Ekos Research Inc., June 2003, quoted by Hon. Lucienne Robillard, President of the Treasury Board, "A Question of Trust: Furthering the Values and Ethics Agenda" [speech], in Canada, Parliament, House of Commons, Debates and Proceedings (Hansard), 37th Parliament, 3rd Session, 5 February 2004 (Ottawa: Public Works and Government Services Canada, 2004), p. 274.
(17) Canada, Access to Information Review Task Force, Access to Information: Making It Work for Canadians. Report (Ottawa: Public Works and Government Services, 2002).
(18) Brian K. Burton and Janet P. Near, "Estimating the incidence of wrong-doing and whistle-blowing--Results of a study using randomized response technique," Journal of Business Ethics 14, no. 1 (January 1995), pp. 17-30.
(19) Lawrence Martin, Iron Man: The Defiant Reign of Jean Chretien (Toronto: Viking Canada, 2003).
(20) See Canada, Parliament, Senate, Standing Committee on National Finance, Minutes for 2002 and 2003; and Canada, Parliament, House of Common, Standing Committee on Government Operations and Estimates, Subcommittee on Whistle-blowing, Minutes for 2003.
(21) See the discussion in Canada, Library of Parliament, Research Branch, Bill S-6: Public Service Whistle-blowing Act, by David Johansen (Ottawa: Library of Parliament, Research Branch, 2002).
(22) Public Service Integrity Officer, "Annual Report, 2002-2003 to Parliament," Canada, Public Service Integrity Office (web site) (Ottawa: Communication Canada, Canadian Government Publishing Directorate, 2005), at http://www.psio-bifp.gc.ca/publications/ann-rpt-2002-2003/cover_e.php. Henceforth referred to as PSIO annual report, 2002-03.
(23) See Kenneth Kernaghan et al., "Report of the Working Group on the Disclosure of Wrongdoing," Public Service Human Resources Management Agency of Canada (web site) ([Ottawa]: [Public Works and Government Services Canada], ), at http://www.hrma-agrh.gc.ca/reports-rapports/wgdw-gtdaf_e.asp.
(24) Ibid, p. 3.
(25) Canada, Parliament, House of Commons, Standing Committee on Government Operations and Estimates, Thirteenth Report [to the House of Commons, November 2003], available at http://www.parl.gc.ca/committee/CommitteePublication. aspx?COM=3278&Lang=1&SourceId=66465.
(26) The office opened for business on I April 2002. It had a budget for 2002-03 of $1,154,000 and employed seven people, including a director, legal counsel, senior investigators and administrative staff (Public Service Integrity Officer, "Annual Report, 2002-2003 to Parliament," Canada, Public Service Integrity Office [web site], part 2, p. 2.). The PSIO also monitors the operation of the policy on a government-wide basis and prepares an annual report that is tabled in Parliament by the president of the Privy Council.
(27) Ibid., Section 2.2
(28) Australia, Public Service Commission, State of the Service Report 2002-2003 (Canberra: PSC, 2003), Chapter 7.
(29) Public Service Integrity Officer, "Annual Report, 2002-2003 to Parliament," Canada, Public Service Integrity Office (web site), part 2, p. 2.
(30) Virginia Held, The Public Interest and Individual Interest (New York: Basic Books, 1970), p. 4.
(31) Kernaghan and Langford, The Responsible Public Servant. See also Leslie A. Pal and Judith Maxwell, "Assessing the Public Interest in the 21st Century: A Framework." Paper prepared for the External Advisory Committee on Smart Regulation (Ottawa, January 2004).
(32) Public Service Integrity Officer, "Annual Report, 2002-2003 to Parliament," Canada, Public Service Integrity Office (web site). See also Dr. Keyserlingk's testimony to the Senate Standing Committee on National Finance, 16 September 2003.
(33) Public Service Integrity Officer, "Annual Report, 2002-2003 to Parliament," Canada, Public Service Integrity Office (web site), part 2, p. 3.
(34) Public Service Alliance of Canada, "Whistle-blower Protection." Presentation to the Treasury Board, November 2003." Public Service Alliance of Canada (web site).
(35) Various submissions by the Professional Institute of the Public Service of Canada (PIPSC) were downloaded from http://www.pipsc.ca on 11 August 2004 or were taken from the minutes of proceedings of parliamentary committees.
(36) See testimony by the Professional Institute of the Public Service of Canada to the Canada, Parliament, House of Commons Standing Committee on Government Operations and Estimates, Minutes of Proceeding, 37th Parliament, 3rd Session, 6 May 2004 (Ottawa: Public Works and Government Services Canada, 2004).
(37) Paul G. Thomas, "The past, present and future of officers of Parliament," CANADIAN PUBLIC ADMINISTRATION 46, 3 (Fall 2003), pp. 287-314.
(38) Annual reports from such other officers of Parliament as the information commissioner, the privacy commissioner, and the Public Service Commission have typically disappeared into a "parliamentary black hole," attracting little or no attention and allowing the responsible ministers and senior public servants to avoid challenges to the use of their authority and resources. The 2003 investigation by the House of Commons standing committee on government operation into the financial misconduct, and the staffing abuses within the Office of the Privacy Commissioner, presented dramatic evidence that even parliamentary "watchdogs" can misuse the powers of their office. The "Radwanski affair" was also a "wake-up call" to conduct regular, systematic reviews of the performance of officers of Parliament.
(39) See Canada, Parliament, House of Commons, Debates and Proceedings, 38th Parliament, 1st Session, 13 and 14 October 2004 (Ottawa: Public Works and Government Services Canada, 2004).
(40) Australia, Public Service Commission, State ofthe Service Report 2002-2003, Chapter 7.
(43) "Lack of faith in law on whistle-blowing," New Zealand Herald, 20 December 2003.
(44) See John Bowers, Jack Mitchell and Jeremy Lewis, Whistle-blowing: The New Law (London: Sweet and Maxwell, 1999) for a detailed analysis of the origins and contents of the U.K. law. The web site for the advocacy group Public Concern at Work is http://www.pcaw.co.uk. See also Gobert and Punch, "Whistle-blowers, the Public Interest and the Public Interest Disclosure Act 1998," Modern Law Review.
(45) [multiple authors], "2 Years Back, 3 Years Forward, 10 Years Old ," Public Concern at Work (web site) ([London, U.K.]: [PCAW], ), at http://www.pcaw.co.uk/pdfs/10_year_review_v3_lo.pdf#view=FitH.
(46) Tom Devine, "Checklist for Effective Whistle-blower Protection Laws," Government Accountability Project, 2001. Available at http://www.whistle-blower.org.
(47) Kohn, Concepts and Procedures in Whistle-blower Law.
(48) Martin Edwin Anderson, "Whistle-blower champion seeks reappointment at the OSC," Insight on the News, 18 February 2003. There are numerous sources on the whistle-blowing law at the national level in the United States. One of the better, recent sources is Roberta Ann Johnson, Whistle-blowing: When it Works--And Why (Boulder: Lynne Rienner Publishers, 2002).
The author is Duff Roblin Professor of Government, St John's College, University of Manitoba. He would like to thank the following individuals for their valuable comments on earlier drafts of this paper: Esther Becker, Kenneth Gibbons, Ralph Heintzmann, Kenneth Kernaghan, John Langford, Allan Tupper and the anonymous referees selected by the Journal. None of these individuals or the institutions they represent is responsible for the opinions presented in the article.
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|Author:||Thomas, Paul G.|
|Publication:||Canadian Public Administration|
|Date:||Jun 22, 2005|
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