Disclosure Today Whistleblower Protection Proposal
On 26th November 2015, the Whistleblower Protection Bill No. 15 of 2015 was published in Legal Supplement Part C to the ‘Trinidad and Tobago Gazette’ Vol. 54, No. 122. On 14th December, 2015 Disclosure Today received a letter of invitation from the Joint Select Committee of Parliament of Trinidad and Tobago to submit proposals on the proposed legislation on or before 8th January 2016. On 6th January 2016 the Committee extended the deadline for receipt of proposals to 20th January 2016.
Below is an excerpt of the Executive Summary of our proposals and we are inviting comments from our members which we will consider to be sent to the Joint Select Committee which concludes its work on March 22nd, 2016. Please send all comments to email@example.com. Click this link to download the full report DT WPBill 2015 Review.
Executive Summary Excerpt
Corruption is a vexing problem for Governments and people worldwide. The World Bank has conservatively estimated that every year approximately one trillion dollars is being lost to bribery. As corruption typically takes place behind closed doors, encouraging individuals who may have information to speak up and creating a facilitating environment for same, are recognized as fundamental to an effective anti-corruption framework. Further, given the vulnerability to reprisals and recrimination as a result of disclosing information, an effective protection framework for whistle-blowers is also critical.
A survey of legislative approaches reveals that WPL typically has five major objectives:
- Protecting whistleblowers against potential retaliation;
- Supporting public interest disclosure by facilitating disclosure of wrongdoing;
- Ensuring that public interest disclosures are properly assessed, investigated and acted upon;
- Promoting a culture of transparency, integrity and accountability (symbolic value of the legislation);
- Preventing abuse and misuse of available protections for personal advantage or vendettas against the employer.
At present the Government has proposed a draft Whistleblower Protection (WP) Bill (which is currently before a Joint Select Committee of Parliament)  aimed at providing a framework by which corrupt activities in State agencies can be exposed. The WP Bill 2015 has the following express objectives which manifests an intention to take a broader approach to WPL reform:
“to combat corruption and other wrongdoings by encouraging and facilitating disclosures of improper conduct in the public and private sector, to protect persons making those disclosures from detrimental action, to provide for the matters disclosed to be investigated and dealt with and to provide for other matters connected therewith”.
While this is a welcomed and commendable approach by the Government, Disclosure Today has noted some areas of the proposed legislation that should be reconsidered in order to make the legislation compatible with international best practice. These include:
- Narrow – Rights Based Approach
- Limitations on Who Is Protected –
- Limitations on Public Whistleblowing
- Harmonization of WPL
- No Centralized Whistleblower Complaints Authority
- Financial Incentives
- Civil Society Engagement
Based on these limitation in the proposed WP Bill, Disclosure Today proposes the following recommendation to assist the committee in drafting a Bill that would meet the needs of Trinidad and Tobago:
- The Committee is urged to consider how to harmonize the various sectoral provisions. Failing to take into account how different duties and obligations apply to reporting persons risks may undermine the effectiveness of the proposed WPL. If individuals are uncertain as to what protective measures are available to them and in what circumstances, they are more likely to remain silent. Experience shows that even very good reporting systems will not be used if they conflict with existing rules and obligations.
- The Committee is strongly urged to establish a ‘third tier’ in the proposed WP system which allows for wider disclosures to the media, trade unions, civil society organization and other members of society if the public interest so demands.
- The Committee is urged to consider the potential chilling effect of the “personal gain” criteria. It places a higher standard on the whistleblower that may work counter productively for anticorruption efforts.
- The Committee is urged to consider a burden shifting regime to the employers and/or reducing the burden of proof on whistleblowers.
- The Committee should give consideration to whether more defined criteria for “gross mismanagement” should be given or whether this will be addressed in the regulations. Further in respect of (f) the reference to ‘public funds’ as opposed to the more robust statutory concept of ‘public money’ as defined in the Public Procurement & Disposal of Property Act No. 1 of 2015 should be rationalized so as to bring alignment between the two pieces of legislation both with the aim, inter alia, of combatting corruption. (See Para. 4.5.6)
- It is recommended that the requirement that a WRU must deter protected disclosure couched in terms of a positive a priori obligation be removed. A protected disclosure can be a protected disclosure until it is deemed otherwise by a WRU. It provides an additional and wholly unnecessary barrier for a whistleblower acting in good faith and exposes such whistleblower to unnecessary risk of reprisal if there are delays in the processing of the disclosure.
- The Committee is urged to consider the wording of the UK Public Interest Disclosure Act 1998, Part IVA section 43A (4) for the amendment of the section on protection of legal professional privilege.
- The Committee is strongly urged to revisit Part II Division 2 with a view to substantially revamping the internal reporting procedures to provide for accountability in the handling of internal disclosures.
- The Committee is strongly urged to consider the establishment of a Centralized Whistleblower Complaints authority to provide monitoring, investigation and oversight of WROs and to collect, analyse and if required disseminate statistics so as to inform the maintenance of a responsible, and effective whistleblower protection system which inspires trust and confidence.
- The Committee is strongly urged to revisit Part II Division 3 with a view to substantially revamping the external reporting procedures to provide for accountability and to strengthen the anti-corruption component of the proposed WPL.
- The recommendation for the Committee to consider the establishment of a Centralized Whistleblower Complaints authority with robust investigatory powers and to provide monitoring and oversight of WROs and to collect, analyse and if required disseminate statistics so as to inform the maintenance of a responsible, and effective whistleblower protection system which inspires public trust and confidence.
- The Committee is urged to establish mechanisms for robust stakeholder consultation on remedies for whistleblowers including in particular the consideration of financial incentives.
- The Committee is urged to consider strengthening the anti-corruption component of the proposed reforms by taking a NO LOOPHOLES APPROACH –In this regard it is specifically recommended that a more expansive protection be provided to different categories of whistleblowers consistent with Article 33 of the UNCAC.
- The Committee is urged to consider increasing the penalties for criminal offences in particular for offences created by sections 21 and 24.