Time to even up the odds against the whistle-blower

Whistle-Blower! A term not much used until the AIB story broke

Whistle-Blower! A term not much used until the AIB story broke. At that point, it began to be attached to the former internal auditor at the bank, Anthony Spollen.

Mr Spollen has denied talking to the Sunday Independent or to Magill, has indicated he wishes AIB nothing but the best, and seems to be ruling himself out as external whistle-blower. Fair enough.

But internal whistle-blower he was, warning the bank about its situation in unequivocal terms and in writing. So what happened?

The bank managed to disregard the advice and the warnings (to its detriment, as this week proved) to conceal this key information from those making the policy and even, dare we say, ethical plans for AIB, and lose Mr Spollen off the payroll.

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There are no suggestions he was fired. Even the suggestions that crisis meetings were held in Peter Sutherland's house to see who would rid him and AIB of this turbulent internal auditor have been denied. Big banking groups are not so crude.

All that happened was that the internal auditor was first shifted from his job and then departed the bank's employ, no doubt with a satisfactory package. All of it happening so quickly after his unwelcome reports that the bank must have viewed his departure as positively serendipitous.

Even assuming (as of course I do) that no pressure was brought to bear on Mr Spollen after his internal whistle-blowing, and even assuming (as of course I do) that the former internal auditor, working for one employer for decades, surrounded by lifelong personal friends such as Peter Sutherland, would suddenly get the urge to leave for the much less secure and much less prestigious pastures of freelance financial consultancy, it nonetheless raises issues about the negligible protection provided here for whistleblowers.

The whistle-blowing concept has a longer acceptance in the US where, in the 1970s and early 1980s, figures such as policeman Frank Serpico and nuclear worker Karen Silkwood became household names when movies were made about their exposure of evil-doing in their workplaces.

The intimidation they and other whistleblowers experienced led to legislative backing for the person coming forward to expose malfeasance. In effect, a new role was created by the federal government and protected by it.

Enacting the legislation, Congress made clear the need for protection of whistleblowers. "The best source of information about what a company is actually doing or not doing," Congress said, "is often its own employees and this amendment will ensure that an employee could provide such information without losing his job or otherwise suffering commercially from retribution."

At the time, the law was envisaged as coping more frequently with environmental whistle-blowers exposing polluting practices. Should an employer retaliate against a worker who lifted the lid on violations, the US Department of Labour could order reinstatement, back pay and, where appropriate, damages.

There is a strong case for the enactment of such legislation here, not least in the environmental area, where, for the past 15 years, we have been constantly on the cusp of enforcement of the rules about waste, yet nobody ever ends up in jail because of failing to dispose of it properly.

Environmentalists maintain we do not even know how much waste is generated, apart from not having a good tracking system to see where it ends up and how much of it gets recycled.

In any company operating fly-by-night disposal practices, the employees are the best source of truthful information - if they could be empowered to reveal it.

But environmental issues are just one example of where organisations can get themselves, their customers and to a greater or lesser extent, the State, into hot water. Nationally and internationally, in the past few months, we have seen the financial services come a cropper.

When it was international, there was a certain pleasure in voyeurism, given that for years, we had been putting up with business gurus pointing towards the rising sun and telling us the Pacific Rim economies had a lot to teach us.

That we were lazy good-for-nothings with defective, or absent, work ethics. That we did not come up to the oriental mark. It was natural for us to feel a little vindicated, a little smug watching the ashen-faced chief executives announcing all was not well for these paragons of financial virtue.

We got a bit of a jolt when the National Irish Bank scandal broke. But we could reassure ourselves by looking at the relative youth of NIB. It was at best an adolescent compared with the more venerable "big two".

Teenagers tend to pull the occasional reckless stunt. What NIB did could be characterised as the banking version of borrowing dad's car without permission and denting the wing.

"The system still, for the most part, worked," we thought. "The old boys wouldn't let us down."

Now we know the old boys were covertly at it on a bigger scale. There is no way to write this off as youthful enthusiasm or an accidental prang. AIB has driven its own 7 series BMW into a live bus queue, with malice aforethought.

On Thursday, Tom Mulcahy was asked to explain what had happened. An unenviable task for a man who was not the group chief executive officer at the time and who has, I understand, only six years' experience in branch banking during the late 1950s and early 1960s. (The rest of his time being spent in the world of treasury.)

Apart from contradicting the Revenue Commissioners' contention that no deal had been done, he seems to have been trying to give the impression that Mr Spollen, the group's then internal auditor, was central to the problem.

Though he was careful to deny Mr Spollen was to blame when Deputy Sean Ardagh put him on the spot. The story he told was of a man who wanted to move out of the internal audit job and go on a solo run with this issue.

There are two major problems with this.

Mr Spollen's job was to root out fraud, a task about which he was so passionate that he later wrote a book on the subject. Internal auditor was the perfect job for a fraud hunter, allowing him to stalk swindlers in one of the State's largest financial institutions.

But even if we do concede that he wanted to move, either within the bank or to another company, focusing irrationally on a single issue would hardly be the way to achieve it.

There is another way to describe his job: whistle-blower. He would find the problems that had been concealed and blow the whistle on them. This is what he did. He spotted an enormous tax liability arising from thousands of questionable accounts and he brought it to the attention of the audit committee. Repeatedly.

Mr Mulcahy has said this information was, contrary to reports earlier in the week, brought to the board's attention. No less a person than Mr Sutherland set up a committee to examine the charges. The committee found them to be groundless. And so ended the first whistle-blower's attempts to get the bank to put its house in order.

A second whistle-blower has been operating more recently - whoever pointed the newspapers at the missing millions. We should be grateful, particularly as the amount of money the bank may now have to pay to the Exchequer could be about £250 million. You can pay for a lot of deaf soldiers with that kind of cash.

The gratitude the State should feel to both whistle-blowers is not likely to benefit either. Both have taken enormous risks putting their careers on the line. They have no protection. Mr Spollen cannot avoid having his name in the papers and, unlike Mr Mulcahy, when he attends the Dail Committee of Public Accounts he will do so without the benefit of expensive corporate spin doctors.

He will be on his own. The State does not have a system to deal with whistle-blowers. In microcosm, there lies the problem. David had it easy up against Goliath, compared to a former internal auditor up against the might of an international banking group.

What worries me is that the lesson may go out to an executive at work somewhere in the Republic, who knows of wrongdoing at the highest level in his/her organisation: you may feel impelled to tell the truth, but is this where you want to end up?

You can't realistically bring it to your bosses' attention as they're part of the problem. You can go to the media but you will have to bring them some hard evidence and the problem with hard evidence is that it will often lead straight back to you. While your name will be concealed behind phrases like "informed sources", your identity may be all too apparent. And that is where your career will end.

The "trouble-maker" will have the might of the company's lawyers, investigators and PR consultants turned upon him or her. The odds are stacked against you.

We have to give the whistle-blowers another option, a way to even up the odds. A regulatory body they can turn to, in confidence, to explain what they know. The framework for these entities already exists in the US. We should examine that system and adapt it to our needs.

The alternative is to condemn ourselves to unreported corporate misbehaviour and an occasional brave soul willing to risk more than they should to reveal it.

The public accounts committee meets on three days next week and indeed, I suspect, for many more days in the following weeks. Among its guests will be senior AIB Bank officials including its former chairman, Mr Sutherland. It will be interesting to see how far the ex-Attorney General, ex-European Commissioner, and chairman of Goldman Sachs goes in for following the advice of the former Taoiseach, John Bruton, who has urged him to come clean about the affair.