Whistleblowing input wanted

(CNS): The public is being asked to comment on a new discussion paper drawn up by the Law Reform Commission, which will be used to draft legislation to facilitate and protect people who blow the whistle on skullduggery in public office. Government has been discussing the legislation for several years, but despite the general agreement that Cayman needs to create a safe environment for disclosure of wrongdoing, there is still no law to protect or assist those who have witnessed misconduct. The LRC said the new paper looks at the need for encouraging people to speak out about wrongdoing without fear of losing their jobs or being persecuted in some other way.

The issue came to the fore in the Legislative Assembly recently during what turned out to be a controversial debate when North Side MLA Ezzard Miller called on government to implement the recommendations made by the complaints commissioner in her report before the end of the year. Government voted against Miller's motion without entering into the debate after the deputy governor said it was working on a law to address her recommendations. It was later revealed that government's primary objection was that one of the recommendations conflicted with the constitution.

However, the appearance of the LRC's discussion paper just last week in the public domain suggests that government is even further away from potential legislation to protect whistleblowers that was implied in the LA last month.

The report by commissioner Nicola Williams, which was published in March, made it very clear that most public servants were extremely reluctant to come forward as experience had taught them that those who tell usually end up out of a job or persecuted in some way. Her findings were supported by the outpouring of comments on the story on CNS, in which the vast majority of bloggers indicated that they did not believe it was safe for anyone in government to disclose any concerns about potential wrongdoing.

Williams' research led her to conclude that the environment in the public sector was such that not only was there no protection for those who expose wrongdoing, but the culture positively discouraged any kind of disclosure.

Her findings were at direct odds with the widely proclaimed and collective desire of both the public and private sector for a transparent and corruption free government, underpinned by modem legislation and institutions that support openness and honesty. As a result, the pressing need for legislation is not in doubt but Cayman remains at a very early stage in the legislative process.
 
Nevertheless the LRC has at least drawn up a detailed discussion paper as a starting point for a whistleblowers law or, to give it its formal title, a Protected Disclosures Bill.

"The Discussion paper gives an overview of the current legislation in the Cayman Islands and how persons are protected under legislation in some other jurisdictions. It also submits for public input the issue of whether financial incentives should be paid for disclosures of improper conduct," the commission stated in a release with the publication of the paper.

The main objective is to draw up a law that will facilitate and encourage the responsible disclosure of genuine improper conduct and properly protect those that blow the whistle. The bill also proposes a definition of improper conduct, similar to that found in the UK and Jamaica, which covers all eventualities, from outright criminal offences or a failure to carry out a legal obligation to human rights abuses to mismanagement or health and safety violations.

The bill provides for disclosure to ministers, employers and designated officers of employers, lawyers, prescribed persons and to a designated authority. Schedule 1 of the bill specifies that prescribed persons would include the attorney general, the commissioner of police and the director of public prosecutions as well as the auditor general, the complaints commissioner and members of the Anti-Corruption Commission, the Standards in Public Life Commission and the Cayman Islands Monetary Authority.

The LRC paper also outlines the potential procedures to be followed when making disclosures; the procedures to be followed for the investigation of disclosures; protection against reprisals and remedies in the forms of court action, criminal complaint and resolution by labour tribunals; penalties for reprisals against whistleblowers; confidentiality relating to disclosures; and the periodic review of the legislation by a committee of the Legislative Assembly.

The bill requires written disclosure procedures to be implemented by the people to whom disclosures can be made and there is attached to the Discussion paper an Appendix B which contains samples of internal policies, which the commission said it believes would be helpful to guide employers.

Read the discussion paper here

Appendix A

Appendix B

Members of the public are invited to submit their comments on the consultation paper before 30 June to the Director, Law Reform Commission, PO Box 1999 KY1-1104, delivered by hand to the offices of the Commission at 1st floor dms House, Genesis Close or sent by e-mail to Cheryl.Neblett@gov.ky.

Related CNS article:

80% of whistleblowers sacked (13 March 2014)