Dutch Parliament in favor of establishing a ‘House for Whistleblowers’

UPDATE 2017-07-11: updates moved to bottom.

On December 12th 2014, Dutch newspaper Volkskrant reported (in Dutch) that a majority of Dutch MPs favor the establishment of an independent “House for Whistleblowers”. There is a bill (.pdf, in Dutch), accompanied by a Memory of Understanding (MoU) (in Dutch), proposing a “House for Whistleblowers Act”.

The bill establishes a House for Whistleblowers (hereafter: the House) as a “zelfstandig bestuursorgaan” (ZBO), the Dutch version of a quasi-autonomous non-governmental organization. The House will consist of an advisory department and an investigatory department. The advisory task and investigatory task are subject to separation of duty. To make the House more independent from the government than normal ZBOs — and thereby deviating from the concept of ZBOs as defined by Dutch law —, the following rules will apply:

  • the Minister cannot appoint, suspend, or dismiss members of the House;
  • the Minister cannot require the House to provide information concerning the substance and methods of specific investigations;
  • the Minister cannot establish policy rules concerning the House’s task performance;
  • the Minister cannot dismantle the House.

Based on data from the National Ombudsman, the Whistleblowers Expert Group and the Advice Centre for Whistleblowers, it is anticipated — according to the MoU — that the House will be processing report from four to six hundred whistleblowers annually, and that 10 percent of the reports, some 50 per year, will result in an investigation. The annual budget for the House is estimated at 3.5 million euro.

The bill provides whistleblowers the protection that they cannot be fired while an investigation by the House is ongoing. The following wrongdoings concerning public interest are explicitly recognized:

  • violation of a statutory provision;
  • a public health risk;
  • a risk to the safety of persons;
  • a threat to the environment;
  • a threat to the proper functioning of a public service or a business as a result of an improper way of acting or negligence.

Concerning whistleblower reports from the public sector, the bill obligates the following parts of government to fully cooperate with investigations carried out by the House:

  • the state;
  • provinces;
  • municipalities;
  • water boards;
  • public bodies for industry and the professions, for instance:
    • the Social and Economic Council of the Netherlands (SER)
    • the Dutch Order of Lawyers (NOvA)
    • the Dutch Institute of Chartered Accountants (NBA)
    • the Dutch Order of the Accountants-Administrator’s consultants (NvOAA)
    • the Royal Notarial Association (KNB)
    • the Royal Association of Bailiffs (KBvG)
  • other public bodies authorized under the Constitution;
  • European Grouping of Territorial Cooperation (EGTC) organizations seated by statutory in the Netherlands;
  • other legal persons established under public law, for instance, from the ZBO register:
    • the Authority for Consumers and Markets (ACM)
    • Staatsbosbeheer
    • National Library of the Netherlands (KB)
    • Netherlands Organisation for Scientific Research (NWO)
    • Royal Netherlands Academy of Arts and Sciences (KNAW)
    • TNO
  • other legal persons not established under public law vested with public authority, with the exercise of that authority being the core activity of the legal person, for instance:
    • Authority for the Financial Markets (AFM)
    • DNB

The House is also granted full physical access to these organizations. Based on Article 9:31 of the the General Administrative Law Act (in Dutch: “Algemene bestuurswet”), officials from these bodies can be required to provide information. Officials are however allowed to refuse, if providing information is contrary to interests of national security, or constitutes a breach of official secrecy or other legal provisions.

Concerning whistleblower reports from private sector, the House can summon any individual and require them to provide information, but the House is not granted full physical access.

It is proposed that the House has a chair person and at most four members, to be appointed by Parliament, and such that “all relevant expertise” to carry out its legal tasks is present. It is proposed that the House is supported by its own agency, employed by the House.

In 2013, opponents of bill included the Dutch Association for Medium and Small Enterprises (VNO-NCW), the Dutch Association for Listed Companies (VEUO), the Dutch Minister of the Interior, the Netherlands Authority for the Financial Markets (AFM) and the DNB. The Minister and regulators expressed worries about potentially harmful interference with investigations that existing authorities are undertaking. Also, the combination of an advisory task and an investigatory task in a single organization was criticized.

Excluded from reporting a suspicion of wrongdoing to the House are magistrates (in Dutch: “rechterlijke ambtenaren”) and officials of the Dutch intelligence and security services AIVD and MIVD, as well as members of the Dutch Review Committee on the Intelligence and Security Services (CTIVD). According to the MoU, the reason for this exclusion is that those organizations have existing procedures for reporting and handling wrongdoing. These officials are however free to contact the House for Whitleblowers to obtain advice.

Lastly, here is my translation of the report by Volkskrant (hyperlinks and parts in [] are mine):

Netherlands first to establish independent House for Whistleblowers

Things usually don’t end well for someone who reports wrongdoing in government or business. A parliamentary majority wants to change that by establishing an independent House for Whistleblowers.

The Netherlands will be the first European country to have an independent House for Whistleblowers that provides legal protection for whistleblowers and investigates reports from whistleblowers.

The objective is to prevent whistleblowers from being isolated, fired, and forgotten without the wrongdoing being addressed.

That is the core of the bill that MPs from seven parties, led by Ronald van Raak (Socialist Party) sent to the Council of State this week. The House for Whistleblowers will be a quasi-autonomous non-governmental organization (in Dutch: “zelfstandig bestuursorgaan”), independent of the central government. It will have an annual budget of approximately 3.5 million euro and will be supporting four hundred to six hundred whistleblowers annually.

‘Whistleblowers are now often left to fend for themselves, while they often render a service to society’, Van Raak states. ‘They will soon be able to go to the House for Whistleblowers. They cannot be fired while an investigation into the wrongdoings they reported is ongoing. The objective is to prevent whistleblowers from being isolated, fired, and forgotten, without the wrongdoing being addressed.’

Van Raak has worked on the bill for over two years, after earlier attempts to regulate the legal position of whistleblowers failed. The reason for Parliament to address this issue was, among others, the fate of Ad Bos, the whistleblower who exposed fraud in the Dutch construction industry [.pdf, 2006]. Bos ended up living in a caravan, years after he had exposed the large-scale collusion of construction companies.

‘I am regularly contacted by whistleblowers, and as an MP I want to do something about the wrongdoings that they report’, says Van Raak. ‘This often could not be done because my sources would then be fired. That situation was very unsatisfactory.’

The bill’s authors expect that in 10 percent of the cases — about fifty times a year — employees of the House of Whistleblowers will themselves carry out research into possible wrongdoings. The House will get extensive powers for that, especially if the wrongdoing involves the government. The public authority involved, such as a Ministry or a water board, must provide the researchers full access, and fully cooperate.

The estimations of the annual numbers of whistleblowers and investigations to be carried out by the House of Whistleblowers are based on data from the National Ombudsman, the Whistleblowers Expert Group and the Advice Centre for Whistleblowers, where most whistleblowers currently turn to. The bill aims to end the fragmentation of policy concerning whistleblowers.

The House will also investigate private sector wrongdoings, but cannot simply walk in there. Investigation into reports from businesses will initially be limited to requesting information and written evidence. In case of suspicion of offenses, the Public Prosecution Service will be contacted.

The driving force behind the improved legal protection of whistleblowers is Gerrit de Wit, chairman of the Whistleblowers Expert Group Foundation. The former detective blew the whistle on fraud and corruption of officials at the Ministry of Housing at the end of the previous century, and has since been fighting for better treatment of whistleblowers.

‘Of course we wanted to have arranged things for whistleblowers even better, but it is an achievement on and by itself that this proposal is now sent to the Council of State’, De Wit says. ‘In the past fifteen years I have talked to hundreds of whistleblowers and saw the majority of them be ostracized. That will change in the near future, which is a victory’.

Own responsibility

Behind the screens, a lot of lobbying was going on up until last week to prevent that whistleblowers would get legal protection. Opponents, including employers’ organizations, fear that the House of Whistleblowers will attract troublemakers and employees threatened with losing their job. They also think companies already are responsible themselves for dealing with wrongdoings in the workplace and that more than enough supervisors and inspection agencies exist.

Professor Leo Huberts (VU University), who specializes in integrity policy, thinks the establishment of an independent organization is a good thing. But, according to Huberts: ‘What I greatly miss, is focus on prevention. Integrity mostly is about awareness, about culture. This proposal also seems unfinished, and the name is quaint. The initiative started off with the right agenda that whistleblowers who report wrongdoings and have to deal with retribution, deserve legal and financial support. The proposal looks like an ambitious building under construction, but as far as I’m concerned, eventually a real nation-wide House for Integrity will exist.’

A large parliamentary majority is in favor of introducing the House for Whistleblowers. An earlier version of the bill was adopted by the Parliament, but got rejected by the Senate.

UPDATES (from new to old)

UPDATE 2018-12-19: Former employees report wrongdoings about the House for Whistleblowers (in Dutch, NOS). One report is about (in)effectiveness of the House for Whistleblowers in general, including its administrative procedures; another report is about about the procedure of the appointment of the current chair, Wilbert Tomesen, who previously was chair of the Dutch Data Protection Authority (in Dutch: “Autoriteit Persoonsgegevens”). The NOS report contains no further details.

UPDATE 2018-03-06: Best Practice Guide voor wetgeving ter bescherming van klokkenluiders (in Dutch, by Transparency Netherlands)

UPDATE 2017-12-20: Nieuwe Eurobarometer onderstreept slechte staat van klokkenluidersbescherming (in Dutch; post by Transparency Netherlands regarding the new Eurobarometer special report on corruption that covers public and corporate activity)

UPDATE 2017-12-14: Herstart Huis voor Klokkenluiders (in Dutch; post by the House for Whistleblowers reporting that the house will be rebooted). Also today, a report on this by Transparency Netherlands: Huis voor Klokkenluiders staat op instorten na kritisch rapport (in Dutch).

UPDATE 2017-10-31: The European Parliament calls for protection of whistleblowers (EDRi).

UPDATE 2017-10-20: Crisis in Huis voor Klokkenluiders (Merijn Rengers, NRC Handelsblad; in Dutch). The director of the House for Whistleblowers, Paul Loven, resigns over inability of the House for Whistleblowers to complete a single investigation in its first sixteen months of existence. Some 30 out of 800 reports received from (possible) whistleblowers were considered worthy of investigation. While the House was established after extensive debates in Dutch parliament and has its own legal basis, a spokesperson states that practice is more complex than expected. Loven requested former top official Maarten Ruys to conduct an investigation into this; it is not yet clear who will be Loven’s successor. The situation reminds a bit of what was observed in the U.S. in Feb 2015 regarding the Occupational Health and Safety Administration (OSHA: OSHA Whistleblower Investigator Blows Whistle on Own Agency.

UPDATE 2017-07-11: Wet Huis voor Klokkenluiders: een update (Linda Schut, Transparency Netherlands; in Dutch).

UPDATE 2017-03-13: NOS reports that since the House for Whistleblowers was opened in July 2016, 530 persons have made reports to it. 70 of them were established to be actual whistleblowers, the remainder reported was is qualified as ‘differences of opinion at work’. Half of the reports were made by persons employed in the private sector, one third of the reports were from persons employed in the public sector. The House for Whistleblowers published its annual report 2016 (.pdf; mirror) and a press statement.

UPDATE 2016-07-04: today, the House for Whisteblowers is officially opened (reports by NRC Handelsblad, in Dutch), and located in the city of Utrecht. Its first director is Paul Loven. It is stated that the House for Whistleblowers, which is established through Dutch national law, is the first of its kind in the world. Organizations that have 50+ employees are, as of now, expected to have (or establish) internal procedures for reporting perceived wrongdoings (and yes, that will come as a surprise to many organizations; for instance, 10% of Dutch municipalities, all of which have 50+ employees, currently have no such procedures). The House for Whistleblowers acts as a safe place to obtain advice and as a means of last resort for carrying out investigations in case internal reporting fails — or in case suspicions are that upper management (C-level) and/or shareholders are involved in fraud. Questions remain: as stated elsewhere in this blogpost, the House for Whistleblowers has both an advisory department and an investigatory department, which are ‘strictly separated’, but what nonetheless means that the ‘lawyer’ and ‘judge’ functions are exercised by people who are part of the same physical organization. Time will tell how this works out in practice. (Note: please do read the remainder of this post for more details; the House for Whistleblowers is deals (only) with reports that affect a public interest, as explained elsewhere in this post. The legal details of whistleblowing are complicated; for more information, refer to e.g. the ‘klokkenluiders’ category at the Dutch website ‘Bijzonder Strafrecht’ and the legal expert book ‘Klokkenluiders in perspectief’ (Q4/2015).)

UPDATE 2016-03-01: today, the Senate adopted (unanimously) the bill (.pdf). Furthermore, the Senate adopted (non-unanimously) a motion (.pdf) intended to also provide protection, against being disadvantaged as result of reporting wrongdoing, to non-employees who report alleged wrongdoing from a work situation, such as interns, volunteers and self-employed persons, who have no labor contract with the organization about which they submit a report to the House of Whistleblowers.

UPDATE 2016-12-xx: Transparency Netherlands published a position paper (.pdf, in Dutch) on the House for Whistleblowers.

UPDATE 2016-02-12: update (in Dutch) on the legislative proposal House for Whistleblowers.

UPDATE 2016-01-11: Dutch piece by Michael van Woerden (KeyCompliance) on the upcoming Senate debate on the legislative proposal (9 & 16 Feb 2016): “Voor klokkenluiders wordt 2016 het jaar van de waarheid

UPDATE 2015-07-06: in-depth article by Rik van Steenbergen (Netherlands Trade Union Confederation, FNV): Whistleblowing Protection in the Netherlands: Latest Developments.

UPDATE 2015-07-01: overview article by M. Verveld-Suijkerbuijk (lawyer at NautaDutilh), in Dutch: “Het wetsvoorstel Huis voor klokkenluiders: Een praktijkgerichte bespreking” (.pdf, 2015)

UPDATE 2015-04-09: new documents available (in Dutch): the advice from the Council of State (.docx), an updated legislative proposal (.docx) that incorporates that advice, and an updated Memorandum of Understanding (.docx).

UPDATE 2015-03-18: meanwhile, at the EU level: CoE Parliamentary Assembly: Call for protection of whistleblowers in national security-related fields ; i.e., the PACE Committee on Legal Affairs & Human Rights adopted the draft report “Improving the Protection of Whistleblowers” (.pdf, Mar 18; mirror). The draft report will be discussed at the PACE summer session in Strasbourg on 22-26 June 2015. (source: Statewatch) Huffington Post has an article about it (Mar 20).

UPDATE 2015-03-02: indeed, a house for whistleblowers might itself need whistleblowing — see this U.S. example: OSHA Whistleblower Investigator Blows Whistle on Own Agency


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