Thu | Dec 8, 2016

The minister is too powerful - Amend SIPP to include Parliament in 'privacy' regulations

Published:Monday | February 16, 2015 | 12:00 AM
Anthony Hylton, Minister of Industry, Investment and Commerce
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Something must be fundamentally wrong with a framework which gives a single minister the right to make regulations, pursuant to a law, and have them imposed on the people without all their representatives in Parliament having the opportunity to scrutinise those regulations before they are implemented. Last week, the nation reacted with shock after it was revealed by this newspaper that the National Securities Registry had placed certain information which individuals considered private on its website.

The Gleaner's report caused Industry Minister Anthony Hylton to shut down the search function and to carry out an immediate review of the way the registry, created under the Securities Interest in Personal Property (SIPP), will operate. But we probably would not have been here had the regulations, which gave the Companies Office of Jamaica the power to publish the information online, been brought to Parliament.

Prior to the search function being suspended Friday, one could simply type the name - first name and surname - of any person, and if an asset is registered in the collateral registry, details of the loan among, including descriptions of the asset, the unique identification number of the asset, and the address and date of birth of the debtor would be there for the world to see.

Legislators, including Cabinet ministers, were shocked about how far-reaching the regulations were. They were shocked, not because they were not paying attention, but because the regulations were never brought to Parliament. And this is so because there's no requirement for this to be done. Hylton, last week, when asked whether in hindsight the law should have required the regulations to be approved by Parliament, answered by saying "there is nothing in the regulations, that if complied with, should cause any alarm".

"During this period of suspension, we are going to engage the stakeholders about what is required and what is not required," the minister said. He said although he was listening to the outcry, "I am not moved by it and we are not going to do anything rash and radical because the legislation is intended to achieve certain purposes for which this information is required".

Personally, I am not convinced that the release of any information on the website is of such nature that it amounts to

Unwarranted intrusion of privacy

And I am not moved by arguments such as that the publication of date of birth, particularly for women, should not be done. And neither am I convinced by the argument that people will use it to get one's car registration number, for example, in order to do harm to them. The fact is that this information is public anyway. The website, however, has a fundamental flaw. It should not be that a name search is sufficient in order to get information on whether an asset is encumbered. The person making the search should have a genuine reason for searching and thus should be required to input a unique identification number. This will prevent him being able to go on a fishing expedition to 'faas' in people's business, and will prevent the user from accessing bad information. Take for example, the conduct of a search for Damion Brown. Now, this is perhaps the most common male name, and there is absolutely no guarantee of filter information on the site to ensure that the Damion Brown for which the information is sought was born February 29, 1980 and is from Mosquito Hole in St Mary.

During this period of review, Hylton should give serious consideration to making it a requirement for the person conducting the search to input the taxpayer registration number (TRN) of the debtor or prospective debtor. This would be the best filter. Thus, a farmer, using his cow as collateral to secure a loan, which is now possible with the passage of the SIPP, will be required to supply the lender or prospective lender with his TRN which will enabled the lender to carry out that search as to whether the cow has been pledged as security and then determine whether to lend the farmer the money.

 

Game changer

 

One notes where Hylton says he will be meeting with the stakeholders to determine the way forward. The SIPP, The Gavel admits, is a potentially game changing piece of legislation as it relates to the provision of capital, especially to the micro, small and medium-sized enterprises. But its newness means care must be taken with its implementation. The minister's announcement of a suspension of the search engine on the registry is most welcome. But it does not go far enough. That consultation he speaks of cannot be with the financial institutions and a few other business people and technocrats. It must include the people's representatives.

The SIPP must be amended to require the regulations to be passed by both houses of Parliament. This awesome power given to a single minister is wrong. But it seems the Government won't hear that we are not a people given to dictatorship.

The reaction to Dr Fenton Ferguson use of ministerial order to unilaterally impose a smoking ban should have been a clear demonstration that Jamaicans want government by consensus, not by dictate.

The Gavel has no doubt that Hylton's intentions are genuinely borne out of the need to 'free up' credit in the society and hence stimulate growth. It is sad, however, that the people's representatives had no say in the regulations governing the bill's operation because of the flaw that gives the minister the power to make them. That ought to be corrected forthwith.

thegavel@gleanerjm.com