In just eight short weeks, the new administration has taken action to put several pieces of enabling legislation and policy in place. And there is much to do with respect to the general economy, specifically the maritime economy, the society and of course governance, many of which are identified as Mission Critical by the Barbados Labour Party (BLP).
Several issues such as the raw sewage have been resolved for the moment and this was done with embarrassing haste given the seeming inability of the previous administration to get a handle on the situation. There can be no passing grade for this administration in this period; this is exceptional performance even though I now have a reduced pay cheque given the mini-budget.
One of the most significant steps taken so far towards democratic strengthening is the debate on integrity legislation which the party had promised during the election campaign. Much has been said elsewhere on how important this is, and of course, reservations have been raised about specific aspects of the legislation. But it is clear that the Government intends to craft a legislative Act that reflects the input and interest of the people of this country.
Integrity Group Barbados for instance, whilst congratulating the Government for its expeditious piloting and debating of the Integrity in Public Life Bill, certainly expressed disappointment over the proposed minimal financial sanctions imposed for violations under the proposed legislation. The fact, however, is that after decades of repeated calls for its passage and “veiled threats” that integrity legislation was imminent, here was a new Government in a hurry to make good on its election promises. In keeping with this administration’s refreshing approach to governance, some ministers of Government readily explained the “mistake” in the monetary sanctions under the proposed legislation. A far cry from what Barbadians were exposed to during the last five years.
Notwithstanding this important step, the Government must also move quickly to bring to Parliament an access to or right to information bill. Recognised since 1946, Transparency International points out that, “Access to Information, (ATI) is not simply a piece of legislation. A country’s passing of such an act signals a change in culture from one of secrecy to one of transparency and a strengthening of democracy.” Democracy requires that citizens can effectively participate in decision-making which it is argued can only take place where there is Governmental transparency.
Freedom of Information legislation (Right or Access to Information) or open records, normally comprises laws that guarantee citizens access to data held by the Government. They typically establish a “right to know” legal process by which requests may be made for Government-held information, to be received freely or at minimal cost. The ability to monitor Government in an environment which is transparent in this way will ultimately work in the public’s interest and repose power in the people’s hands (Transparency International).
The Government has started on the right path with its easy communication style and the willingness to continue to listen to the public’s concerns and to readily share with citizens information available to it. Yet as laudable as this is, more structure and greater institutionalization of ATI is required, for it should not rest on the goodwill of the administration but be founded on solid legislative grounds. This will enable both civil society and the judiciary to take appropriate action where necessary and in conjunction with a vigorous Auditor General, strong Public Accounts Committee and Integrity legislation provide a solid foundation for the curbing of corruption.
It is my hope that by September 28, 2018, Barbados will join the few other progressive countries in the Commonwealth Caribbean such as Jamaica and Belize which have enacted ATIA’s (Access to Information Acts).
Why September 28, 2018? In 2015 the UNESCO General Conference voted to designate Sept. 28 as International Day for the Universal Access to Information or Access to Information Day, previously celebrated as the Right to Know Day. Over 100 countries have already put various incarnations of this legislation in place and in the Caribbean’s oldest democracy, a democracy of sorts for well over 350 years, its continued absence is problematic. Perhaps if the legislation is not passed since the window of opportunity is quite small, we will have a draft bill in circulation by that date.
What I hope to see
We do not need just any Right To Information (or Access to Information) Act. We need a robust Right to Information Act that will see Barbados high on the world ranking of RTI. In crafting the legislation, we must ensure that its scope is clear and that there is not an abundance of caution taken with respect to a regime of exceptions. These are critical, but equally important is the establishment of an independent oversight body with adequate protection from political interference.
With Westminster constitutions, we implicitly understand that some Government action must be secret. The constitutions and ancillary legislation across the English-speaking Caribbean are clear in that respect. A range of laws typically prevents public servants from leaking official facts and figures. The most important of these are the Official Secrets Act which makes it an offence for public servants to divulge Government information. The Act also makes it an offence for persons to receive and/or reproduce such information. There are additional restrictions which are outlined in the Evidence Act and the Criminal Code among others.
But we also note that these constitutions must be constantly updated to reflect the changing nature of society and civilization and unfortunately our constitutions remain too rooted in an old order which needs to be transformed.
In crafting legislation, it is imperative that what constitutes “secrecy” should not be left to interpretation by any administration nor should they conflict with existing legislation which may need to be harmonized. Consequently, in crafting the legislation, special attention needs to be paid to the definition of a ‘State secret’ and allowances made for legitimate exemptions.
The Centre for Law and Democracy which reviews and assesses such legislation and proposed legislation argues that, as a general rule, information prepared for the office of the Chief Executive (Prime Minister) and information which has been submitted to Cabinet, should not be included in the list of exemptions. With respect to the Office of the Chief Executive, we are well aware that a number of agencies and offices routinely fall under this office. A blanket exemption would provide these offices with protection which is unwise in a modern democracy.
In the view of the Centre, such exemptions are Class exceptions, protecting an office or agency, as opposed to exceptions which are designed to protect a particular interest, such as the free and frank exchange of advice, against harm. It concludes that Class exceptions are never legitimate. The Centre for Law and Democracy suggests that rather than a blanket exemption (a class exemption), there ought to be a set of interests (such as the free and frank exchange of advice or protection of a policy where premature disclosure would undermine it) which would be afforded protection under the legislation. So the spirit of the constitution and the convention of Westminster can be maintained.
In assessing the strongest of such legislation globally, the right to information is typically exempted only where there is the possibility of an invasion of the privacy of an individual other than that which is provided for under the Integrity in Public Life Act currently before Parliament. Where the requested information relates to personal information which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the individual’s privacy unless the larger public interest justifies the disclosure of such information or the person concerned has consented in writing to such disclosure; then such should be included under the exemption clause (the former).
Secondly, the right to information must of necessity be denied when such information would have implications for the defence of the State or its territorial integrity or national security or would impact the external relations of the State. These seem to be common in legislation rated on the RTI ranking as strong pieces of legislation.
Also important to exemption clauses is the need to ensure that the right to information would not frustrate the ability of the police and other security agencies to detect, apprehend or prosecute offenders; or expose the identity of a confidential source of information in relation to law enforcement or national security. This, of course, can also be buttressed by whistleblowing legislation.
As the Independent Commission is concerned, the legislation must make every effort to put a method of appointment in place that does not rest all the appointing power in the hands of the Chief Executive whilst ensuring that members of the Commissions are not political. Equally important is the Commission’s financial independence.
There is much more that needs to be included in any proposed legislation, but given the expertise available to the administration in the Office of the Attorney General and the political will and commitment displayed by this Government, I have little doubt that a robust piece of legislation can be crafted. In any event, there is no need to start from scratch as there is ample best practice available.
(Cynthia Barrow Giles is a senior lecturer in political science at the University of the West Indies, Cave Hill Campus)