THE Independent Jamaica Council for Human Rights has urged the Government to either repeal or reform the 1911 Official Secrets Act, warning that the provision, if kept as is, will void the Whistle-blower legislation now being debated by Parliament.

This was the line carried by attorneys Lord Anthony Gifford QC and Nancy Anderson on behalf of the Council to the Joint Select Committee of Parliament reviewing the Whistle-blower Bill, formally called the Protected Disclosures Act, on Thursday.

"My own view is that the Official Secrets Act is a relic of a past where Government took place behind closed doors and nobody was allowed or expected to know what took place behind those doors. We are now in an age of transparency," Lord Gifford said.

While commending the Whistle-blower Bill, the concern, he said, was the impact of clause 4 (2) of the provision, which says a disclosure of information is not protected if the employee making the disclosure commits an offence by making it; as this would be in direct conflict with the Official Secrets Act.

"That means if the communicating of the information would constitute an offence, the information is not protected no matter how you go to the ombudsman or the contractor general," he explained.

Under the Official Secrets Act, if a person employed to the state in a sensitive post passes on information or documents obtained based on their position to any person other than a person they are authorised to communicate it to, that person is guilty of a misdemeanour.

"In other words, anything you learn is a secret... It does take all the stuffing out of the Whistle-blower Act if a public servant is inhibited from making the sort of disclosures one would expect him or her to make in case of wrongdoing known to him or her in Government," Lord Gifford said.

He urged lawmakers to take another look at the Official Secrets Act or at least ensure that the Whistle-blower legislation protects information that would otherwise not be protected under the Official Secrets Act.

"In other words, the Protected Disclosures Bill should trump the Official Secrets Act. I hope this apparent conflict could be resolved," he said.

Anderson, who is legal officer for the Council, said while the bill is a bold and comprehensive move against wrongdoing and corruption, another factor which could undermine the spirit of the bill and defeat its comprehensive nature was the requirement for organisations to establish procedures for persons wanting to make disclosures. She said though progressive, this could prove a hindrance since while the Act provides some amount of guidance in this instance, proper education would be needed.

"A lot of the small businesses are not going to have the capacity to hire someone to establish procedures," she noted.

Anderson, however, said she was in agreement with views expressed by some committee members that there be an oversight body or person responsible for giving advice to employers or employees.

Meanwhile, she noted that clause 12 (2) in the bill which states that an employee shall utilise the internal reporting procedure in the first instance is in direct contradiction with at least two other clauses in the bill which allows for disclosures to be made to external sources in certain circumstances. She suggested that this clause be removed and that the individual be given the option of deciding the best person/s to whom the disclosure should be made from the list of persons prescribed.

And Attorney General and Justice Minister Senator Dorothy Lightbourne, responding to the concern, said at the moment the Government was not looking to repeal the Official Secrets Act but would be looking at how to deal with some of the sensitive areas under that provision.

But the JLP, while in Opposition in 2006, had called for the immediate repeal of the Official Secrets Act. It at the time restated its intention to introduce whistle-blower legislation in order to promote clean and corruption-free government, in which the resources of the country would not be plundered and abused by a reckless, insensitive and corrupt government.

The Whistle-blower Bill is aimed at protecting workers who blow the cover on wrongdoing in organisations. It is intended to cover all forms of misconduct within an organisation and incidents of gross mismanagement, past or present. Persons to whom disclosures may be made by individuals in possession of critical information include: the auditor general, the Bank of Jamaica, the Bureau of Standards, the children's advocate, the Commission for the Prevention of Corruption, the commissioner of police, the contractor general, the director of public prosecutions, the political ombudsman and the public defender, among others.