Will the Honest Barbadian Please Stand Up?

Well done to our Pan American games athletes.  Many gave impressive performances and qualified for the final of their events.  They have demonstrated that they are internationally competitive.  To improve their training and attend other competitions, our athletes need funds.  So, how can we support them?

One method is for the public to invest in the development of our athletes.  Investors normally expect a return on their investments, otherwise, it is a charitable donation.  How can investors get monetary returns on this type of investment?  How can our athletes repay their investors at a rate to encourage sustainable investments?

The simplest way is through the endorsements and other earnings that our successful athletes may receive.  Those endorsements are not guaranteed.  Therefore, the investor takes a significant risk, since most athletes may not attract any endorsements.  However, if our athletes do well, they may attract endorsements exceeding US$1M each year.  Top athletes can attract endorsements exceeding US$20M each year.

Our successful athletes should enjoy the fruit of their success.  However, investors should also receive a return on their investment in the athletes’ non-earning development years.  Athletes and investors would need to agree on an equitable split of an athlete’s future earnings.  Perhaps they can consider a 50%:50% split, where the athlete keeps half of their earnings, and the other half is shared between all investors.

If our athletes agree to share any future endorsements, then we have willing internationally competitive athletes, and we have willing investors.  All we need is a trustworthy entity to manage the investment fund.  This model of funding can be applied to any sector that is internationally competitive.

Ideally, the Government, representing all Barbadians, should be trusted to manage all of our investments.  However, the Government’s decision to confiscate part of our NIS pensions and private retirement savings, makes them an untrustworthy manager.  Their decision to simply stop paying foreign creditors confirms that assessment.

Barbadians have trusted banks with their retirement savings.  However, the banks proved that their loyalty lies elsewhere, when they voted to allow the Government to confiscate part of our retirement savings.  Barbadians also trusted the National Insurance Scheme (NIS) to manage their pensions.  But, they too proved themselves untrustworthy.

The Barbados Chamber of Commerce and Industry should be an independent entity that should be trusted.  However, their extremely partisan behaviour during the last general election, proved that they can only be trusted to be loyal to their political party.

Every financial entity who voted to allow the Government to confiscate their client’s retirement savings, has proven themselves untrustworthy.  They shamelessly voted against their client’s financial interests, in exchange for a pat on the head from their political masters.

Is there any business entity in Barbados that is not politically compromised?  Is there any entity that will put the interests of their clients above their loyalty to their political party?  Is there anyone left who treasurers their professional integrity?  Can such a politically independent entity please stand up?  Anyone?

They will be willing investors and athletes, so the fund will likely be established.  I hope that one of the first recipients will be our national treasure, Ronald ‘Suki’ King.  It will be a shame if such a fund will have to be managed from outside of Barbados, for the sole reason that all local entities are too politically compromised to be trusted.

Grenville Phillips II is a Chartered Structural Engineer and President of Solutions Barbados.  He can be reached at NextParty246@gmail.com

Transparent Incompetence

There is a refreshing amount of transparency with the current administration.  Unfortunately, it seems to be used as part of a public relations campaign rather than to improve public policies.  The passage of the Data Protection Bill last week is a recent example.

The national organizations representing: doctors, lawyers, bankers, and digital businesses, submitted their concerns to the Joint Select Committee of the House and Senate (the Committee).  Their concerns generally affected their members.  The Committee responded by dismissing almost all of their concerns.  Their response has been shameless silence.

Solutions Barbados’ concerns focused on issues that could harm the public.  A review of the Committee’s minutes revealed the interesting ways the Committee used to dismiss our concerns.  Our recommendations, and the Committee’s responses, follow.

Interpretation:  We identified several grammatical errors.  The Committee responded: “typos happen and they will be fixed in the final Bill.”  After reading the passed Bill, grammatical errors were still easily found.  For example, on page 15, “unit other authority” should read “unit or other authority”, and “by the any enactment” should read “by the enactment”.

Section 10.3:  Any individual can ask the data controller to amend or erase their data.  For a data controller with reasonable doubts about the person’s identity, Section 21.14 states “the data controller MAY request the provision of additional information necessary to confirm the identity of the data subject.” (Section 21.14)

To address imposters, we recommended that the optional “may”, should be replaced with the non-optional “shall” or “must”.  The Committee’s response: “My understanding is that this provision was put here to give the controller flexibility in terms of confirming identity”.  The only flexibility it gives is for the data controller to behave badly.  They passed the bill with this harmful vulnerability in place.

Section 22:  This section made it an offense to transfer personal information, to countries that did not respect human rights with an “adequate” level of “appropriate safeguards”.  Section 23 tried to define “adequate”, and Section 24 tried to define “appropriate safeguards”.

We recommended that a Schedule containing an approved list of countries, or a negative list of countries, should be part of the legislation.  The Committee stated: “It is suggesting that we try to define adequate, and appropriate safeguards as it relates to section 22”.  We were suggesting no such thing.

The Committee dismissed the idea of a list, because they did not want to keep amending the Bill every time the list was amended.  They evidently did not understand that a Schedule can be amended by the Minister at any time, without having to go to parliament to amend the main legislation.

Section 55.4:  This Section gives the penalty for operating as data processor, without being registered, as “a fine of $10 000 or to a term of imprisonment of 2 months or to both.”  The Profession, Trade and Business Registration act states a penalty of $500, and no imprisonment, for this type of offence.

We were concerned about the discrepancy in penalties for the same offense.  The Committee ignored our concern and responded: “It just makes that null and void because they are not creating professions, therefore, that one is not relevant.”  So much for sober second thought.

Sections 68 & 69:  We were concerned about the requirement to hire a Data Privacy Officer, whose allegiance appears to be to the Government appointed political Commissioner.  The Committee ignored the close relationship between the Data Privacy Officer and the political Commissioner, and simply dismissed this concern.  Amazing.

Section 73.1:  We were concerned about a glaring loophole that allowed confidential information to be leaked.  This section states: “The Commissioner and a public officer … shall keep secret all confidential information … EXCEPT insofar as the Commissioner authorises that person to release the information.”

The Committee’s legal resource stated: “this particular provision is very common when you are dealing with functionaries”.  So, they left the glaring loophole, for political mischief, in place.

Section 74:  This section allowed the Commissioner and their staff not to be held liable for their mistakes or negligence.  We recommended that the standard for negligence should be the same for all professionals.

The Committee went back to their go-to loophole-retaining statement: “this is a common provision again that is put in place in terms of functionaries”.  Well, that explains why all Barbados legislation to address political corruption seems to have loopholes.

Section 85.2(d):  This section allows the police to: “inspect and seize any documents or other material found on the premises”.  We recommended that the business owner should be allowed to make copies of documents seized, especially if the material seized is unrelated to the charge, and was needed to continue their business.

The Committee seemed to think that businesses run by magic.  Further, they decided that making copies of seized documents “is not something that we would wish to do at this stage or at any stage.”  Are charged persons not entitled to a copy of the evidence against them?  Since when did that change?  And where is this hostility to businesses coming from?

Grenville Phillips II is a Chartered Structural Engineer and President of Solutions Barbados.  He can be reached at NextParty246@gmail.com

Appointing John Wick

The Data Protection Bill (DPB) is perhaps the most dangerous bill ever produced in Barbados’ Parliament since our Independence.  It allows the most sensitive client data in all private sector companies to be made available to the Government, and leaked at will.  The excuse for passing such a dangerous bill is that it had to be compliant with the European Union’s General Data Protection Regulation (GDPR).  Well, it does not appear to be.

SAFEGUARD 1

The European Union (EU) insisted on at least four critical safeguards to protect their citizens from political abuse.  The first was to try to ensure that their national supervisory authorities (our Data Protection Commissioner) were completely independent of political influence.

GDPR Article 52.1.  “Each supervisory authority shall act with complete independence in performing its tasks and exercising its powers in accordance with this Regulation.”

GDPR Article 52.2:  “The member or members of each supervisory authority shall … remain free from external influence, whether direct or indirect, and shall neither seek nor take instructions from anybody.”

Our Data Protection Commissioner must regularly report to the Minister.  One of the functions of our Commissioner follows.

DPB Section 71 (g) “monitor the processing of personal data and, in particular, sensitive personal data, and any other matter affecting the privacy of persons in respect of their personal data, and report to the Minister on the results of that monitoring”.

SAFEGUARD 2

The second critical safeguard is confidentiality.  Every member of the EU supervisory authorities must hold confidential information, to the highest professional duty, for the remainder of their lives.

GDPR Article 54.2.  “The member or members and the staff of each supervisory authority shall … be subject to a duty of professional secrecy both during AND AFTER their term of office, with regard to any confidential information which has come to their knowledge in the course of the performance of their tasks or exercise of their powers.”

Our Commissioner holds it like water in a sieve.  They can simply authorise their staff to release confidential information at their discretion.  When it inevitably leaks out, no one is to be held accountable.

DPB  Section 73.1.  “The Commissioner and a public officer appointed pursuant to section 72(1) shall keep secret all confidential information coming to his knowledge during the course of the administration of this Act or any other Act that the Commissioner has jurisdiction to administer or enforce, EXCEPT insofar as disclosure is necessary for the administration of this Act OR insofar as the Commissioner authorises that person to release the information.”

DPB Section 74.  “The Commissioner and his staff shall not be subject to any action, claim or demand by, or liability to, any person in respect of anything done or omitted to be done in good faith in the discharge or in connection with the discharge of the functions conferred on the Commissioner and his staff pursuant to this Act.”

SAFEGUARD 3

The third critical safeguard is that the EU supervisory authorities must be experienced in Data Protection.

GDPR Article 53.2.  “Each member shall have the qualifications, experience and skills, in particular in the area of the protection of personal data, required to perform its duties and exercise its powers.”

Regulators should be better qualified, or at least be as competent, as those whom they are regulating.  Since these are political appointments, the bar for such an important role is a lawyer with 7 years of irrelevant experience.

DPB Section 70.2.  “A person is qualified to hold or to act in the post of Data Protection Commissioner, where that person is qualified to practise as an attorney-at- law and has so practised for a period of not less than 7 years, or for periods amounting in the aggregate to not less than 7 years”.

SAFEGUARD 4

The fourth critical safeguard is the integrity of the appeal process.  There is an independent European Data Protection Board (our Tribunal), comprised of the heads of each national supervisory authority.  Each member of the supervisory authority is appointed by a transparent procedure.

GDPR Article 53.1.  “Member States shall provide for each member of their supervisory authorities to be appointed by means of a transparent procedure by: their parliament; their government; their head of State; or an independent body entrusted with the appointment under Member State law.”

Our Tribunal is appointed by the Minister.  Since the politically favoured expect these appointments, they do not need to invest in their professional development and competence.  So, the bar must be set low enough for them to qualify.

DPB Schedule 1.1.  “The members of the Tribunal shall be appointed by the Minister by instrument in writing from among persons WHO APPEAR TO HIM to be qualified as having had experience of, and shown capacity in, matters relating to data protection and privacy OR such other related discipline.”

“Such other related discipline”???  Well, why not simply appoint assassins, since they normally keep their client’s data private?  Alternatively, why not just write a better Bill for all of us?

Grenville Phillips II is a Chartered Structural Engineer and President of Solutions Barbados.  He can be reached at NextParty246@gmail.com

Welcome to our Police State

Barbados hosts a significant number of visitors, from countries that are serious about protecting their citizens’ personal information or data.  In Barbados, their data can be held by Government agencies, and every business that records any information about its customers.

To facilitate international trade, Barbados needs to have a Data Protection law that makes selling or sharing someone’s personal data, without their consent, illegal.  Our Data Protection Bill was developed in our Senate, and was referred to a joint select committee of the House of Assembly and the Senate.

The Committee requested public comment on the Bill, and Solutions Barbados submitted its comments on 20 June 2019.  We received no acknowledgement.  After seeing others being allowed to present their concerns about the bill to the Committee, I called several times requesting the opportunity to be heard.  I also sent e-mail correspondence, but got no response.

This experience was different from the respectful way we were treated, when we presented on the Integrity in Public Life Bill.  We were allowed to discuss the loopholes we found in that Bill, that allowed persons who received bribes to legally avoid punishment, and keep all bribes paid to them.  The Data Protection Bill contains loopholes that are a lot worse – for us.

The Data Protection Bill makes a weak attempt at protecting the privacy of personal data.  Worse is that it can easily be used to terrorise businesses and individuals for political reasons, with the end-game of politicising the private sector.  That makes it a very dangerous bill.

I was shocked to learn that the Senate passed the Data Protection Bill on 24 July 2019.  I read the amended Bill and found that that our senators left all of the vulnerabilities for politically directed harm intact.  Why would they do that?  Further, by not allowing us to express our grave concerns to them in private, they have forced us to make them public.

If the amended Bill becomes law, then you may wonder how your competitors obtained your most sensitive business and personal information.  If that information is used to bankrupt you, then you can thank our senators for failing to protect us when they had the chance.  Thanks senators.

Since our senators seem not to have acted in our best interests, my only recourse, as one who has reviewed the Bill in the public’s interest, is to appeal to the members of our House of Assembly.  Our main concerns follow.

The Bill requires every business in Barbados, who records any information about their employees or clients, to pay a fee (or tax) and register with a politically appointed Data Protection Commissioner.  If you choose not to register, then you may pay a fine of $10,000 or be imprisoned for 2 months, or both.  If you do not maintain your registration, then the Commissioner can fine you $50,000.

The Commissioner can go through your files at any time, and must report any results to the Minister.  Once you have attracted many clients, or are a school with many students, then you are rewarded for your success.  You must employ or contract a Data Privacy Officer, whose allegiance is to the politically appointed Commissioner.  This Officer must have expert knowledge of data protection law and practices.

The Data Privacy Officer is like a Government spy in your business, who must provide all information about your business, including your clients, to the politically appointed Commissioner, whenever they ask for it.  In return, your Business must provide the Data Privacy Officer with all of the resources needed to both spy on your business, and be educated in the latest spy-craft.  They must also be given unfettered access to your employees.

If you get fed-up with the spying, then you must learn to lump it, because the Data Privacy Officer cannot be dismissed or disciplined for spying.  If you do not employ or maintain a suitable Data Privacy Officer, then the Commissioner can fine you $50,000.

If the Commissioner feels that you are not complying with the Data Protection Act, then they can effectively close your business.  If you resist, then you get to pay a fine of $15,000 or spend six months at Her Majesty’s Prison.  Also, the police can forcibly enter your business and seize your files and computers.  If you do not assist the police in their search for incriminating evidence on you, then congratulations, you get to pay a $100,000 fine, or spend two-years in prison, or both.  Lucky you.

You can always appeal the politically appointed Commissioner’s decisions to a Tribunal of five persons.  However, all five members of the Tribunal are selected and appointed by the Minister – so get with the program.

The 102-page Data Protection Bill provides an unnecessarily complicated bureaucracy that can easily be corrupted for politically partisan reasons.  If we want to protect the privacy of personal data, then why not simply state that?  Why not simply define personal data, and state that sharing or selling a person’s personal data, without their consent, is an offence which entitles a victim to damages.  Why is that so hard?

The victim can then quantify their loss of business and/or reputation, and a judge can determine what is valid, and award damages accordingly.  What type of Barbados are we designing for our children to live and work in?  How can they possibly prosper in such a quasi-police state?  How dare our senators pass something so ridiculously dangerous to the public of Barbados?

[Author’s note: We seem to have been banned from the traditional media in Barbados, so Social Media is all that we currently have. If you like the article and are willing, then we would appreciate it if you would share it.]

 

Grenville Phillips II is a Chartered Structural Engineer and President of Solutions Barbados.  He can be reached at NextParty246@gmail.com

The Curse of Special Magic

The historical record of Barbados shows that Barbados welcomes responsible development.  To ensure that developments are built in an orderly manner, the Town and Country Development Planning office has published, and maintains a Physical Development Plan to guide developers.

Every developer who wants to build something in Barbados, whether a house or commercial building, must apply to the Planning office for permission.  If the development is found to be within Planning’s guidelines, then it is normally approved.

Sometimes, a developer may wish to build something that is outside of the Planning guidelines.  The developer may still submit an application, and the Planning office would inform them of any additional regulations for the application to be approved.

That is the normal method of obtaining approval to build.  But our political leaders have allowed a special way of getting building approval – just go and see the Minister.  At these meetings, our Ministers, who are normally woefully inexperienced in construction, are supposed to magically transform into development planning experts.

Tragically for us, the magic on which our politicians rely, by writing such loopholes in our laws, does not appear to work very well – for us.  Special developers tend to out-smart, or out-magic, our Ministers.  It is quite mysterious.  They not only get our Ministers to approve their developments, but they also get very favourable concessions, like not having to pay the normal.  Thanks Ministers.

Since the Government must still pay for public education, health, transportation and infrastructure, the taxes that the specials avoid paying, must be added to the taxes that the rest of us already pay.  Sometimes those taxes are hidden in higher costs to obtain public services, like higher bus fares and water rates.  However, a convenient way for the Government to make us pay their costs is to increase land taxes.  Thanks specials.

Specials tend to rebuke the public if they dare question their Minister-approved developments.  We tend to get rebuked for not seeing the blessings to Barbados from their developments.  Perhaps in their rebukes, they can explain these benefits to Barbadians?  I have tried to find the benefits, but I mostly find curses.  Let me try to inform them.

THE CURSES

There is the curse of discriminatory business practises, where you can build what you want because you are special, while we cannot.

There is the curse of an unfair market-place, where you do not pay taxes that the rest of us must pay.  You do not do this by legal tax avoidance, or illegal tax evasion.  Rather, you do not pay these taxes just because you are special.

There is the curse of a corrupt market-place, where Ministers decide who wins and who loses in Barbados’ economy.

Perhaps the most damaging curse of all is that of mendicancy, where the next generation stops trying.  They give-up because they can easily see that a person’s effort in Barbados does not matter.  They can see that prosperity in Barbados does not depend on merit of your efforts, but on whether you are special.  We have gone backwards as a nation.

The problem with the curses of the specials, is that the curse only falls on those who are not special.  Perhaps the next time that they plan to rebuke us, they can explain their superior magic of getting our Ministers to both approve their developments, and lay their massive burden of tax obligations onto the rest of us.

[Author’s note: We seem to have been banned from the traditional media in Barbados, so Social Media is all that we currently have. If you like the article and are willing, then we would appreciate it if you would share it.]

Grenville Phillips II is a Chartered Structural Engineer and President of Solutions Barbados.  He can be reached at NextParty246@gmail.com