Legislators question proposal in JTC Bill for protection against legal action

SOME legislators reviewing the proposed Jamaica Teaching Council (JTC) Bill have raised concerns regarding a provision for the protection of individual members of the council's subcommittee – the professional practice and conduct committee (PPCC) – against possible lawsuits.

At Thursday's meeting of the joint select committee (JSC) of Parliament reviewing the JTC Bill, members questioned why the council would be liable for the actions of the individual and not the PPCC, which, when formalised under the Bill, will be responsible for disciplinary matters relating to teachers.

The proposed provision states that (a) no action, suit, prosecution or other proceedings shall be brought or instituted personally against any member of the committee in respect of any act done bonafide in pursuance or execution or intended execution of the committee's functions under this Act or any other enactment; (b) where any member of the committee is exempt from liability by reason only of the provisions of this paragraph, the council shall be liable to the extent that it would be if that member was an employee or agent of the council.

Government member Tova Hamilton, who noted that the provision is referring to the personal liability of individuals, said that while she appreciates the indemnity, "what (b) is saying is that if a member should act outside of his or her lawful duty, then based on what it is saying, the council now would be responsible for that person's action but I don't think the council should be responsible for that person's action, that individual should be".

Solicitor General Marlene Aldred said she also had a difficulty with the provision in terms of the issue of liability, noting that she "cannot find a precedent where it's done this way".

"If a member of a specific entity is being protected, what you always have is to allow for a means of redress. And so, if you can't sue the specific member, you would sue the entity. Here, the entity is the PPCC. I think the draft should have said that who is liable is the PPCC.

"We have it even for tribunals. Tribunals are not body corporates, but you don't go against the individual tribunal member. Who you sue would be the tribunal itself, it's the entity, not the umbrella organisation or group," she said.

Aldred said she is concerned about this obligation being placed on the council and the council was not involved in the deliberations and discussions and the decision of the PPCC.

"I think it's a little unfair to place that burden on the council and not place it on the actual entity, which is the PPCC," she said.

Education Minister Fayval Williams, who is chair of the JSC, responded by explaining that the PPCC "is not a corporate entity, it's not a body corporate…remember, the PPCC is only acting on behalf of the council".

Government committee member Ransford Braham, however, had a different view, noting "it's a good thing to protect the individual members of the PPCC and council when acting bona fide because otherwise the Government will have to provide indemnity insurance for them. So I think that we could have the protection for the PPCC members and also the council members for performing duties bonafide.

"This is the first time I'm seeing it, but I like it. Usually, you just have a blanket protection and the citizen has no right, but what this is trying to do is to say, even though the individual may be protected, if the individual does something, whoever that individual is, that he would without this protection he could have been sued, then you can kick it upstairs.to the council to bear the responsibility for them," he said.

Added Braham: "I think that at the very least, the council members should be protected as well and we could protect the council and the PPCC members and leave it at that full stop, which is a usual practice, or we could also go further now and say, but nevertheless, if the members would have been otherwise liable, but for this Act, then you can try to sue the council itself on behalf of everybody."

Williams said at the next committee meeting, committee members will make a decision on the matter about whether or not to keep part two of the proposed provision.

BY ALECIA SMITH Senior staff reporter smitha@jamaicaobserver.com

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