The Government’s intention with this Bill is 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.
Clauses in the 2022 Bill were very similar to that of previous bills brought under this same title, “Whistleblower Legislation”. Clause 7(6) of the Bill says: “A disclosure made in relation to a Member of Parliament shall not amount to a breach of privilege.” On its face: “A disclosure made in relation to a Member of Parliament shall not amount to a breach of privilege.” This is identical, to a provision that was contained in the Clause 6(5) of the 2015 Bill.
It should be noted in 2015/2016 there was a Joint Select Committee (JSC) to deal with this Bill, when the Committee met, the Integrity Commission gave submissions on this particular clause and they said that the clause should include the words, “Any disclosure made…” 7(6) now that it is, but in the original: “A disclosure made in relation to a member of Parliament shall not amount to a breach.” The Integrity Commission in their submissions said that the words should be included after the word “made”, “by a member of Parliament”.
This represents a very fundamental departure from the laws of Westminster, from the “lex parliamenti” as we have known it, since well, it is the same, from “lex parliamenti”, from time immemorial going back to the Magna Carta all those years ago, that the right of parliamentary freedom of speech has been enshrined.
We have a parliamentary democracy. And enshrined in our Constitution, Section 55 refers to parliamentary privilege, “freedom of speech”. I have said this goes back to hundreds of years and maybe right back to the Magna Carta, that when a parliamentarian speaks, you have the right of parliamentary privilege so that you can raise issues on behalf of your constituents.
It is indeed Clause 7(6) which talks about Parliamentary Privilege. It says on the face of Clause 7(6) or is it this explanation that has been given that when a Member stands in the Parliament and makes the disclosure, that Member will now no longer be subject to parliamentary privilege? I call on the Government to clarify this.
One should know if you breach Section 4 and Section 5 Rights of the Constitution, your fundamental rights to privacy, no deprivation of property and so on, the Constitution allows for that to be done with a three-fifths majority. This Bill does say it has a three-fifths majority, but you see, if you go by a side wind to imply an amendment to Section 55 of the Constitution, where it is so deeply entrenched, what is needed is a three-quarters majority of the Parliament, not a three-fifths.
I will refer to Section 54 of our Constitution which tells us that if you are in any way—a Bill for an Act relating to Section 55 and others shall not be passed unless the final vote is supported in the House by the votes of three-fourths of all Member of the House; in the Senate, two-thirds, so there is a much greater level of entrenchment in the Constitution. Then we come to Section 55 which gives us the privileges and immunities of Parliament, which is deeply entrenched, and then we talk about Section 54, and we talk about altering.
This Bill also has Offences.
The Offences are created under Clauses 23, 24, 25 and 26 of the Bill. Clause 23 the offence created is where a person:
(a) knowingly prevents, restrains or restricts any person from making an internal or external disclosure;
(b) knowingly intimidates any person who intends to make an internal or external disclosure or who has made a protected disclosure;
(c) knowingly induces any person by threats, promises or otherwise to contravene this Act;
(d) being an employer, knowingly subjects any person to detrimental action as a consequence of the person making a protected disclosure; or
(e) purports to make a disclosure under this Act knowing that it contains a statement that is false or misleading, or being reckless as to whether the statement is false or misleading.
Clause 24 deals with the Disclosing the identity and statement/ information of a whistle-blower by a whistle-blower officer or unit. Which deals with obligation for Secrecy and Confidentiality.
Clause 25 deals with obstructing a whistleblowing reporting officer or director or other officer of a whistleblowing reports unit in the performance of his duties under this proposed Act.
Finally, Clause 26 deals with a person who knowingly destroys, mutilates, alters, falsifies or conceals any document or thing that is relevant to a disclosure or the processing of a disclosure under this proposed Act.
I have to ask, who did the Government consult on these penalties? One must ask was the Law Association consulted, members of the Criminal Bar and even the Trinidad and Tobago Police Service.
Clause 23 the penalties are both summarily and indictable offences. On conviction on indictment: a fine of fifty thousand dollars ($50,000.00) and imprisonment of ten (10) years. Now, what was the rational for this penalty and how did the Government come up with this figure? I ask for an explanation as this seems very harsh and onerous.
Further to this Clause 24 a person found liable on summary conviction: A fine of six hundred thousand dollars ($600,000.00) and to imprisonment for two (2) years. I cannot understand how this penalty is so steep for a summary offence and even with this why is the Government even imprisoning you.
Having looked at the Summary Offences Act and and looked at some fines and nothing was close to this therefore I say something is wrong and the Government needs to fix this.
The United National Congress did not support this Bill due to it being fundamentally flawed. The Bill encourages “witch-hunting” and unconstitutional, as provisions in the legislation has allowed it to “trump” contractual obligations to confidentiality between employers and employees.
This Bill sought to render null and void such contracts and agreements, even where a whistleblower might be in contravention of the law. The Government was, in essence, encouraging people to break the law and be protected for it.