Whistle-Blower Protection Draft Bill

Meeting report

JOINT AD HOC COMMITTEE ON THE OPEN DEMOCRACY BILL
2 DECEMBER 1999
DISCUSSION: WHISTLE-BLOWERS

Relevant Documents
Whistle-blower Draft (OPD 91)
Idasa memo on Whistle-blower legislation (see Appendix 1)

SUMMARY
The committee completed working through the first draft of the Whistle Blower Bill. Some resolution was reached regarding the importance of Clause 6 and how it relates to a whistle-blower obtaining legal advice. There was general agreement that Clause 7 needed substantial revisions, and comments were given to Mr du Preez.

MINUTES
Clause 6: Confidential disclosure to legal advisor.
Mr Chohan (ANC) commented on Clause 5(c ) that she felt that it was incorrect to ask a whistle-blower to report to an employer or other responsible person if that person is the one that is acting in a bad way. What about allowing the person to blow the whistle to another department?

The Chair said that the whole point of this provision was to encourage people to make the disclosure at work first. This concept would be defeated if you allowed them to report to another department. He did say that they would add the language from 5(1)(a) to the end of subsection (c ). He said that they could flag the issue until after Mr du Preez had made the changes to this Bill. They planned on making this section look more like the UK model anyway.

Mr Smith (IFP) asked if they should put "and" instead of "or" in between 5(c)(1) and (2).

The Chair said that they would look at that, but he really wanted them to move on so that they could get through the rest of the Bill today.

Mr Lever (DP) asked how Clause 6 (relating to confidential disclosure to legal advisor) and Clause 4(3)(b) (relating to legal privilege) worked together.

The Chair looked at the UK Bill section 43(b), and he determined that the South African draft was wrong. Clause 4 needs to be changed to extend protection, because you want to protect the worker when they go and seek legal advice.

Ms Chohan (ANC) felt that the legal privilege was actually more narrow than what was being suggested in Clause 4, but she said she would look at it again.

The Chair said that when they redraft this Bill that they should add the language "in terms of section 6" to Clause 4.

Ms Jana (ANC) said that you cannot extend the legal privilege.

The Chair said that the section was not extending the legal privilege. What it is supposed to do is give the person who is thinking about blowing the whistle the opportunity to ask someone else's advice about it. It is intended that the conversation should be privileged, because people making qualified disclosures are meant to be protected.

Mr Smith (IFP) asked what constitutes legal advice.

The Chair said that this section should look more like the UK section 43(1)(a) - (f). He said that they could add language to the effect of "legal advice for the purpose of this act," which would narrow the advice you are seeking to advice relating to what you are going to blow the whistle about.

Mr Lever (DP) wanted them to clarify the term "legal." He said to change the language to be "legal advice for the purpose of whistle blowing" or "legal advice relating to the disclosure of information."

Dr Delport (DP) suggested "object of or in the course of seeking legal advice."

Mr Nel (ANC) asked what kind of privilege would be extended to people like auditors or accountants? Will privilege relate to them in cases where the whistle blower goes to them asking for advice?

The Chair felt that the changes that were being proposed would cover them as well.

Mr Smith (IFP) pointed out that the wording does not specify who exactly who can go seek advice from and have that conversation be privileged. Who are the appropriate people to seek advice from?

The Chair agreed that language indicating who the relevant people will be, should be added. He then said that perhaps they should keep the term legal advice, but just incorporate the suggestions made by Mr Lever and such.

Clause 7- Disclosure to prescribed person or body
In looking at the equivalent section 43(f) of the UK model, it has that in order to get protection you need to have disclosed the information in good faith, to a prescribed person, and reasonable belief that the information disclosed was substantially true. He compared that to the South African draft. He was concerned about the placement of subsection 4 in this clause, because legal advice was already covered in other sections. He also was unsure if the prescribed people listed were correct. Further, he felt that 43(f)(2) of the UK model should be added.

Mr Nel (ANC) wanted to make a general point on drafting. He felt that Clause 7 did not clearly relate to anything else in the Bill. There was no indication that you were now looking at stage two or option two for disclosing information. He felt that they really needed to look at how the Bill reads.

The Chair wanted to point out that it was a question of following the requirements within the options and not following the order of the steps. However he understood what Mr Nel was saying and he suggested that they could clarify in the beginning of the Bill that a person thinking of blowing the whistle had 4 options or ways of going about doing so. He thought that Mr Nel had made a good point, because currently too much was being left to interpretation.

Mr Jeffery (ANC) said the wording of prescribed bodies was incorrect. The term "prescribed" means to leave to the regulations, but here the bodies are already listed. He was not sure if 7(2)(a) - a committee of Parliament or of a Provincial legislature was an appropriate body. He said this may work if there was a specially designated committee or something. He felt that Parliament did not have the appropriate investigative role. Further, he thought that the police should be added to the list.

The Chair said that his comments were correct. The legislation could list some of them but that some should be left to the Minister to prescribe. He asked Mr du Preez to look at adding the police to the list as well. The Chair was concerned about the South African Human Rights Commission being on the list - 7(2)(c ). The information that the SAHRC gets is not secret and they are not bound by any code of confidentiality; the SAHRC does not deal with information in the same way that the Public Protector does nor does the SAHRC have a procedure to protect the whistle blower in the way that this provision intends, but he said that they could look at this issue further.

Mr Smith (IFP) had a problem with 7(2)(f), which was the catch-all clause. He was worried that you could have one person writing 6 letters to 6 different prescribed bodies, which would mean that 6 investigations would be going on based on the same request. The issue was of having multiple investigations.

The Chair said that the UK model left out a clause like (f) and they have the Bill drafted in a way which designates where you should make certain types of complaints.

Mr Smith (IFP) said that he felt that 7(1)(b) needed to come out. He felt that disclosure under this section should not be contingent on Clause 5.

The Chair agreed.

Mr Smith (IFP) said that he still wanted a definition of good faith.

The Chair said that he would have Mr du Preez find some different definitions for the Committee to look at. He also wanted him to look into the issue of duplicating investigations. He said that perhaps there is a way of creating a mechanism which prevents duplication

Mr Mgidi (ANC) said that he supported the idea of prescribing other bodies. He wanted them to consider adding tribunal or the TRC to the list of prescribed bodies in 7(2).

Ms Taljaard (DP) commented on the Chair's concern with having the SAHRC as one of prescribed bodies. She said that depending on how they treat the Public Protector in the Open Democracy Bill the same argument that the Chair made about the SAHRC could apply to the Public Protector.

The Chair said that was a possibility, but that the Public Protector has a more structured system than the SAHRC. He said that they would look into it. He wanted to make clear that he was not opposed to the SAHRC, but that he was not sure that they would be in a position to protect the whistle blower in the manner that other designated bodies would.

Ms Chohan (ANC) said that she was not sure how they were going to deal with the private sector. She felt that this clause deals only with employees in the public sector. She had that view because all of the prescribed bodies were government related. The only one that possibly goes to including the private sphere is the National Director of Public Prosecutions. She felt that if they were going to create a second stage for the public sector then they should also create one for the private sector. She suggested having a clause that lists a number of bodies that represent those in the private sphere and still leave the power to prescribe more bodies to the Minister. Further, she said that yesterday the Committee was talking about having a separate category for gender issues, and if they were thinking of doing that then they should also consider making the Gender Commission one of prescribed bodies as well. She realized that the argument that the Chair was making about the SAHRC would also apply to the Gender Commission. Perhaps they could just leave it up to the Minister to prescribe.

The Chair said that adding the Gender Commission would have even more problems than the SAHRC because the Gender Commission does not have any powers to litigate.

Ms Chohan (ANC) asked if they should include the relevant Ministers to the list as the UK model did.

The Chair said that was probably covered by Clause 5. With regards to her comments on private bodies, he said that she was probably correct. However, he felt that her concerns would be addressed in the redraft, because they were going to add in the police and such. The redraft should contain more specific places for people to go, but the place that you go will depend on the type of disclosure that you want to make. He said that they could add explicit language saying that the private sphere was included.

Mr Lever (DP) commented on Mr Jeffery's concern over whether or not Parliamentary Committees should be taken off the list of prescribed bodies. He said that intelligence issues are one area where Parliament would be an appropriate body to disclose the information to. He pointed out that Section 59 of the Constitution gave Parliament certain powers to hold a closed session.

The Chair said that his concern was that even when they try and have a closed session that the information disclosed by the whistle blower would get leaked out. Further, the people could always override a committee's decision to hold a closed meeting.

Mr Lever (DP) said that it probably would not be too hard to create a mechanism that would remedy those concerns.

The Chair said that his point was a good one, but that they would have to come back to it.

Mr Makwelta (ANC) agreed with Mr Lever's point on the intelligence issues. He also wanted to know if MPs (public representatives) were also going to be excluded from the list.

The Chair wanted to explain again that Clause 7 was only one of three other options that a potential whistle blower could choose to disclose the information. Clause 5 has a low test to pass in order to be afforded protection if you blow the whistle. Clause 6 relates to legal advice. Clause 7 lists prescribed bodies that will have the capacity of protecting a whistle blower. Clause 8 deals with all other disclosures, which of course includes the media. In 8, the test that a person needs to pass in order to be protected is higher than any of the other options. Clause 8 you need to look at how the person who is given the information by the whistle blower will actually use that information. This is more of a catch-all type of option. There is nothing stopping a person from using whatever option they choose. They just need to be wary of what they need to do to be afforded protection.

Mr Solomon (ANC) asked how Mr Smith's concern that Clause 7(1)(b) was redundant was actually true? If you drop the reference to Clause 5, then you lose out on the internal process.

The Chair said that the Act itself balances where you go to disclose the information. He said that the protection you get from Clause 7 lies in the test not in the point raise in 7(1)(b). There are certain situations were a person may not want to go and tell someone in their workplace about what is going on - such as if people at work are some kind of syndicate. In those types of situations, the potential whistle blower needs to have other options or avenues for disclosing the information, but the test you need to pass to be afforded protection will be higher outside of the workplace option. It is the difference between the substantially true language of Clause 7 and the reasonable belief of Clause 5. All the options are equally accessible, but some of them have a higher test to pass before protection will be afforded. The main point from the discussion on Clause 7 is making sure that the bodies that are prescribed are in a capacity to ensure that the information that the whistle blower is disclosing is not leaked out.

Mr Landers (ANC) said to leave it so that the Minister has the power to prescribe, because they could sit and debate who should be on the list all day. He also completely agreed with Mr Lever's point relating to intelligence issues. Further, he wanted to know if the Inspector General should be included on the list of prescribed bodies.

Mr Smith (IFP) pointed out that 7(1)(a) referred to "any allegation." He wanted to know if that meant that every allegation that the whistle blower made had to be substantially true. He was concerned because "any allegation" implied a very high test.

The Chair said that the intent was not to form a high test. The test here is still "reasonably believes."

Mr Smith asked if the prescribed bodies had an obligation to disclose the information that they found during the course of their investigation of the information given to them by the whistle blower.

The Chair said that they had to protect both sides. If you decide to go to someone with information, then you have to have a reasonable belief that the information was substantially true. You do not want to create a piece of legislation that is only going to be used for the purpose of defaming others. He said that Mr Smith had raised good points, but that he did not want to make the test in Clause 7 as low as the test in 5. He added that they would go back and look at his point relating to "any allegation."

Mr Durr (ACDP) said that most of his points were raised by Mr Smith. However, he argued that the steps should be the same no matter which option of disclosure you choose. He suggested doing away with higher tests - all the tests should be the same. It should not be more difficult for you to use one test over another. He pointed out that the culture in South Africa was different than the UK. He said that needed the media involved more so than in other countries. He did not think that it was appropriate that the highest test should be for disclosing information to the media. He wanted to know if they were creating a better or worse situation by creating these tests. He suggested inviting some top investigative reporters in to see if what they were creating in this Bill would in any way hurt their chances of getting the big stories.

The Chair said that they were not going to get anyone else in to make submissions - everyone already had their chance. The UK's NGOs are thrilled with this legislation in South Africa. Other civil societies have said that their whistle blower legislation failed because the threshold was too low - people were just getting defamed. He wanted to make sure that doesn't happen here.

Mr Durr (ACDP) worried about the reasonably believe/substantially true test

The Chair said for Mr Durr to turn his argument on himself. Wouldn't he want an allegation against him to at least be a reasonable belief that the person thought was substantially true BEFORE it was blown up in the media? You can’t make the assumption that the media is going to do it right. He also wanted to remind Mr Durr that all of the NGOs came here to support this legislation, and that the only point of disagreement was on criminal sanctions.

Ms Chohan (ANC) said perhaps they could change the wording. It just seemed that the UK model was so much more clear.

The Chair said that they could look into that.

Ms Camerer (NNP), in response to Mr Durr's comments, said that he was trying to maintain the purpose of the Bill. The whole point of this legislation is to protect the whistle blower, and to get the protection you have to go through the proper channels.

The Chair said that was an excellent point.

Mr Smith (IFP) asked if the prescribed bodies had the option of declining to investigate a persons claim?

The Chair said that will have to be evaluated on a case-by-case basis. He pointed out that Clause 6 on legal advice was probable going to be more important that one would think initially. He said that there would be substantial revisions to Clause 7.

Clause 8 - Disclosure made otherwise
Dr Delport (DP) said that with regards to Clause 8 there might be a time when your reasonable belief is based on a forged document, and in those cases you should still be afforded protection under the legislation. He wanted to say that he has no problem giving a whistle blower protection when even what he disclosed turns out to be false, but only if he follows the correct steps. However, he felt that the whistle blower should not be protected against civil action. He supports this because the whistle blower does have other options that they could have pursued.

The Chair said that he thought that was going to create a huge debate. He said that also needed to look at subsections (2) and (3) as well.

Adv Swart (ACDP) was worried about the reference to personal gain. He said that there may be certain instances where a person will be compensated for blowing the whistle, and he wanted to know if that would preclude them from protection under the legislation. He said that they should look at the UK model 43(L)(2)

The Chair asked Mr du Preez to look into that, and to use the language from the UK model. He also noted that the good faith language was missing and needed to be re-added.

Afternoon session:
Clause 8 provides that a "qualifying disclosure" is a "protected disclosure" if the criteria set forth in 8(1)(a-c) are met, ALONG WITH any one of the conditions set forth in 8(2)(a-e). Subsection 8(3) sets forth the factors to be considered in making a determination of "reasonableness" of the disclosure, as contemplated by 8(1)(c).

Discussion started with Ms Camerer (NNP) raising questions as to the standards of "reasonableness": of belief of the truth under 8(1)(a), and the meaning under 8(2)(d) of "exceptionally serious nature" of the perceived impropriety. Chairman de Lange (ANC) noted that it is for the courts to ultimately determine the standards and meaning.

Mr Smith (IFP) then raised the point regarding 8(2)(b) that it is difficult to imagine there not being a person or body prescribed for the purposes of Clause 7, which the Chair said needs to be looked at. Mr Smith also questioned why court testimony needs to be specifically protected in 8(2)(e). In response Mr du Preez, the drafter, noted that it is necessary to protect those being compelled to testify, for example, pursuant to subpoena.

Mr Smith next queried why it is appropriate in 8(3)(h) to draw a distinction to give more protection to a presumably "disadvantaged" person making a disclosure, & noted that the criterion of "socio-economic inequality" is nebulous in this context. In response the Chair noted that all Subsection (3) criteria are to be weighed and evaluated, but allowed that the inclusion of (3)(h) should be further considered.

Mr Durr (ACDP) then raised the point that there are no exclusions under the Act and that there should be. He gave examples of the harm that disclosure of Cabinet level national security decisions, or of confidential information by SARS officials, could bring, noting that such breaches should not be afforded "whistle-blower" protection. Considering this, the Chair noted that the Act’s assumption is that such protection is nearly all encompassing, except when the disclosure itself is an offence, per Subsection 4(4). He also wondered how the Act fits into the overall legislative framework since, unlike in the jurisdictions from which the legislation which the Act tracks were taken, there is no local Freedom of Information Act. His further observation was that these issues are serious, and that Clause 8 needs to be substantively and technically refined.

Clause 9—Exclusion Of Liability If Disclosing Information After Publication
The Chair noted that there is a serious problem with the mechanics of protecting a discloser from civil or criminal culpability if the disclosed information had previously become "public", the practical issue being that this clause, as written, could result in a potential discloser leaking information, for example, by having a third party post it on the Internet, thereby taking advantage of this immunity provision.

Clause 10 - Exclusion of Liability if Making a "Protected Disclosure"
The Chair suggested that consideration be given to whether both subsections (1) & (2) are necessary.

Clause 11 - Detriment At Workplace
The Chair noted that he is very concerned with the presumption created in Subsection (6) both on constitutional and practical grounds. He suggested that Ms van Schoor be asked why the provision is included. He also noted that (1)(a)(iv) should be split into two parts, and questioned how Subsection (2) relates to Subsection (1), and whether it undermines the Act’s procedural framework.

Clause 12 - Remedies & Compensation
The Chair suggested that a catchall phrase beyond "any other appropriate relief" be added to clarify that the new remedy created by this clause is not exclusive, but exists in addition to those that may already be available. He also queried whether Subsection (2) is necessary.

A DP member questioned whether a penal provision to sanction an employer who makes a reprisal on a whistle-blower should be included, per the New South Wales legislation. The Chair agreed that this should be considered.

Clause 13 - Contractual Duties Of Confidentiality
The Chair questioned whether this clause is a duplication of Clause 11(3), and whether it was necessary. In response to an ANC member’s question, the Chair confirmed that, wherever this provision is included, it would work retrospectively in dealing with contracts executed before its effective date.

Clause 14 - Notice to Officials of Provisions of Act & Clause 15 - Regulations
Echoing the comment of Mr. Jeffrey (ANC), the Chair noted that the notification requirements placed on various bodies should be carefully considered, observing that while government must provide notice that may be more difficult for private bodies and that perhaps the SAHRC & Public Protector might have to undertake an advertising campaign to ensure the message gets to the private sector. Mr Smith noted that the duty for any such dissemination duties should be specifically delegated to either the SAHRC or the Public Protector, rather than left for them to work out, as the text currently provides.

The Chair also noted that the Regulations called for in Clause 15 could clarify whether disclosures are to be a "once-off", for example, when an employee is hired, or whether they are to be on-going or periodic.

Clause 16 - Short Title & Commencement
Mr Durr suggested that the name of the Act be changed to "The Public Interest Disclosure Act" in order to better dignify the public perception of action by of whistle-blowers. The Chair agreed.

Conclusion
The Chair commented that the text being considered was a first draft and that a second was necessary, there being a lot of work to refine it. Ms Camerer suggested that reference to the IDASA memo on whistle-blower legislation would facilitate the process and the Chair indicated that it would be considered in due course.

Appendix 1:
The Draft Whistleblower-Protection Bill
A Short Memorandum from Richard Calland

Purpose of this Memorandum
1. My intention is to make constructive comments directed towards the issues that have arisen so far during the course of the committee’s discussion of the draft Bill. In preparing the memorandum I have consulted with Guy Dehn, Director of Public Concern at Work – who visited South Africa in October and met with your chairperson – who was one of the principal architects of the UK Act and also Lala Camarer of the Institute of Security Studies, who made a joint submission to the committee in October.

Employee-Employer Relationship
2. It has been suggested in the committee that the Bill should be restricted to detriments suffered by those who are in an employment relationship.

3. This strikes at the very heart of the purpose of the legislation. If this approach is taken it will have very serious consequences for the Act.
4. It will undermine the purpose and intention of the Bill:
The intention was not to merely add to the range of remedies provided for by employment law (as in the UK case) but to create an important sword in the overall fight against corruption. See the speech of President Mbeki at the Anti-Corruption Summit in November 1998.

The limitation will remove from protection a whole range of potential -bona fide whistle-blowers who should be protected; there is an abundance of examples:
- A pensioner who reports a corrupt bureaucrat in the post office and who suffers detriment when he or she then delays or with-holds the pension.
- the individual who is self-employed and/or who operates a consultancy company which then suffers detriment because a contract is breached or a new contract not granted because the individual blew the whistle, whether on private or public corruption
- the individual who leaves employment and later comes to apply for a job, or for a benefit, or for a contract, and suffers detriment because it is not granted because it is known that he or she is a "dangerous trouble maker who blows the whistle-blower".
- A doctor or dentist, who is self-employed, and who blows the whistle on corrupt practices either in the department of health over, say, registration practices, or on a private pharmaceutical company that is offering kick-backs to medical practitioners who accept and use out-of-date drugs
- A non-executive director of a public body, say a hospital trust, who fears s/he will not be re-appointed if s/he reports financial malpractice
- An individual who reports an corrupt insurance salesman and who is then refused insurance by that and other companies.

5. Moreover, the suggestion that the ambit of the Act be limited not only to those who suffer detriment in the employment situation but who are natural persons will further undermine the potential of the new law.

6. To apply this protection horizontally properly, it is essential that private bodies can themselves be protected from detriment; in other words, juristic as well as natural persons should be covered (as the draft does). For example, if a company discovers impropriety in either a private or public body, how does it blow the whistle-blower and be protected?
- If an individual, for example, the managing director blows the Whistle-blower, but it is his company that suffers the subsequent detriment it will not be protected.
- An audit company aware that a client is defrauding the SARS, but fears that if it challenges the client or threatens to report it that the contract (and possibly related ones) will be cancelled
- A small company which is asked to pay a bribe if its tender is to be considered. It will fear that if it reports it may never get on the tender list again.

7. Drafting: the bill as currently drafted covers the issue of remedy. Section 10(2) says that any person who has made a protected disclosure may not be subjected to any detriment on the ground that the person making the disclosure has made a protected disclosure. Section 12(1) then says that any person who has suffered a detriment in breach of section 10 is entitled to bring a claim for compensation or other relief. In all of the cases above, it is not easy to see what other legal remedy would be available to the individual, certainly not one as direct as this, which, in effect creates a new delict. It would then, as with any delict, be a matter of causation and evidence for the Court to determine.

The Overall Scheme of the Draft Bill
14. The overall scheme is straightforward and clear (it is regrettable that it was not properly explained to the committee). The notion of the "qualifying disclosure" deals with the content of the disclosure. For the disclosure to then attract the protection of the law in the event of there being detriment suffered as a result of the disclosure, it needs to be able to satisfy one of the four categories of protected disclosure – as a whistle-blower making a qualifying disclosure you need to be able to walk through one or other of the four "doors".

15. Link: This can be clarified by a linking clause that sits between the clause on qualifying disclosure and the clauses on protected disclosures, such as
"In order for a qualifying disclosure to attract protection it must also be a protected disclosure in accordance with one or other of sections A, B, C, D [the clauses on protected disclosure]"

Retrospectivity (clause 2)
16. The draft is confused because it focuses on the disclosure rather than the detriment, which is the real trigger for the protection provided by the Act. Hence, the Act should, I suggest, protect someone who suffers detriment after the Act comes into force even if the disclosure was made before the Act came into effect.

17. It would, I submit, be unfair to require the person who made the disclosure in such circumstances to have conformed to the scheme set out in the Act for the obvious reason that it could not have been known to them at the time.

Qualifying Disclosure
18. It has been suggested that sub-clauses (f) and (g) are there only because they were in the Open Democracy Bill and have been imposed on the UK scheme. I submit that they add to the UK approach, by providing clear parameters as to the sort of acts in the public and private sector that should be disclosed.

19. Moreover, it is not correct to say that all acts of "maladministration, corruption or dishonesty" would be covered by sub-clauses (a) and (b). As the two Anti-Corruption summits (in November 1998 and April 1999) noted, corruption is now a complex, multifarious phenomenon. The inadequacy of the Corruption Act compounds the problem. Hence, to remove (f) and (g) would seriously dilute the potential potency of the Act.

Obligation to create Internal Procedures
20. The suggestion that public and private bodies be required to have an internal procedure for making a disclosure is an excellent one.

21. Clause 5(b) exists to cover the situation where there is no internal or external procedure. It would be necessary to keep this to cover the case where some body had failed to put in place a procedure in breach of the obligation to do so (if such an obligation was added to the Act).

Confidential Advice (clause 6)
22. The purpose of the law is to encourage legitimate whistle-blowers. Part of the process of giving them the necessary confidence is that they should be able to get advice easily. The purpose of this section, therefore, is to cover someone who asks for and gets confidential advice about a disclosure he or she is thinking of making, but the fact that he or she makes the disclosure to his or her advisor gets out and he or she suffers detriment as a result.

23. It ought, therefore, to cover all confidential advice that is sought in relation to a qualifying disclosure, whether from a lawyer, a shop steward, an NGO, the Human Rights Commission, or a priest.

24. I suggest that clause 6 be re-drafted to read:
"A person makes a protected disclosure if it is made in the course of, and for the purpose of, obtaining confidential advice in relation to a qualifying disclosure, be it from a lawyer, a union, or otherwise."

Disclosure to prescribed person or body (clause 7)
25. I do not know where clause 7(b) comes from. It is not in the UK Act. It misunderstands the scheme: it is not that you have first to have gone through one ‘door’ before you can go through the next, it is that each ‘door’ has a higher threshold. The intention is to make the first door the widest and most attractive by having a very low threshold, in the hope that by doing so most cases of corruption etc will be corrected at that point.

26. Secondly, there should, I suggest, be space to add to the list of prescribed persons or bodies, given that the current draft is very limited. This could be achieved by adding a sub-clause as follows:
"Any other person or body designated as a prescribed person or body, including appropriate private sector, sectoral requlatory authorities or bodies, for the purposes of the section by regulation by the Minister of Justice after consultation with the above persons or bodies".

27. In any case, there is a strong case for adding
- the Public Service Commission (given its stated role in building public sector ethics)
- The Auditor General
- Any Special Investigating Unit, as established under the Special Investigating Tribunals Act 1996 or any successor legislation.

28. Finally, for many people "a committee of parliament" may not be a very accessible body; it is not clear why it should be a committee rather than a Member of Parliament.

Richard Calland
Idasa
2 December 1999