The Protected Disclosures Bill, 2014

The issue of greater legislative protection for persons who disclose allegations of misconduct by public authorities has been a source of discussion for some time and was more recently addressed at the UCCI conference on anti-corruption and ethics and in the debates in the Legislative Assembly. In response thereto, the Law Reform Commission, in carrying out its mandate to make the laws of the Islands more responsive to the changing needs of our society, submits a Discussion paper relating to the protection of whistleblowers and 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 objects of the Bill are to-

(a)       facilitate and encourage the making, in a responsible manner, of          disclosures of improper conduct;

(b)      protect persons who make disclosures from being subjected to            detrimental action;

(c)       regulate the receiving, investigating or otherwise dealing with disclosures;

(d)      provide protection to the person and the property of the person making the disclosure; and

(e)       compensate the person making protected disclosures from damages               suffered by him as a result of making such disclosures.

The Bill gives a definition of improper conduct which is similar to that found in the UK and Jamaica. It is proposed that improper conduct will include-

(a)       a criminal offence which has been committed, is being committed or is           likely to be committed;

(b)      a failure to carry out a legal obligation;

(c)       conduct that has resulted, is resulting or is likely to result in a miscarriage of justice;

(d)      conduct which is or is likely to be a detrimental action;

(e)       conduct that has resulted, is resulting or is likely to result, in a violation of the human rights set out in the Constitution of the Islands;

(f)       conduct that shows gross mismanagement, impropriety or misconduct in the carrying out of any activity that involves the use of public funds; or

(g)       conduct that has resulted, is resulting or is likely result, in a threat to the       health or safety of a person or of the public.

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 be as follows-

• Attorney General

• Auditor-General
• Anti-Corruption Commission
• Commissioner of Police
• Commission for Standards in Public Life
• Director of Public Prosecutions
• Cayman Islands Monetary Authority
• Complaints Commissioner.

The Bill also provides for the following

• the 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 persons 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 believes would be helpful to guide employers in this regard.

The discussion paper and the Protected Disclosures Bill, 2014 will be published on www.gov.ky as well as on www.lawreformcommission.gov.ky (or www.lrc.gov.ky). Members of the public are invited to submit their comments on the consultation paper. Submissions should be made no later than 30th June, 2014 and should be posted to the Director, Law Reform Commission, P.O. 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 [email protected] .

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