(Delivered in Parliament on 8 January 2018)
The Public Sector Governance Bill makes interesting reading.
According to the Long Title of the Bill, it seeks to provide for a consistent governance framework across the public bodies and to support a whole-of-government approach to the delivery of services. To this end, the Bill has several aspects.
On the one hand, it aims to standardize certain policies and practices that cut across the different Public Sector Agencies, such as personnel matters, governance and managing conflicts of interest, and financial administration. These are set out in Parts 3, 4 and 5 of the Bill.
More critically, Part 2 prescribes the accountability relationships between Government Ministers and the Public Sector Agencies. These accountability provisions set out how Ministers should interface with Public Sector Agencies, which wield considerable State power over Singaporeans on a daily basis. How should Ministers behave, and what are the boundaries that Ministers should not cross? I shall focus my speech on this aspect of the Bill.
Accountability Relationships between Ministers and Public Sector Agencies
Clause 3 of the Bill states that one of the Bill’s aims is “to clarify the accountability relationship between public bodies, their members, their responsible Ministers and the Government”. As one would assume that the government would not legislate without cause, I would ask the Minister to explain why it is necessary to clarify in explicit legislation the accountability relationships between the Ministers and the Public Sector Agencies. Are Ministers or the agencies confused about their roles? Why legislate rather than issue guidelines on the matter? Is there concern from the public service that they are being subject to political pressure from Ministers?
Part 2 of the Bill talks about Ministers issuing “directions” to agencies. However, the word “directions” is not defined. However, under Clause 9, it is provided that the directions may take the “form of a circular or instruction or order”. Clause 9 says that the directions may take such a format, not that directions must take such a format. Is it safe to assume that directions have to be in writing, and signed or authenticated by the Minister? Can the Permanent Secretary sign off? Is there anything prohibiting directions in the form of emails? Or, going further, can directions even be oral?
Part 2 envisages two types of directions from Ministers – directions for whole of government approach, and directions to certain statutory boards regarding functional responsibilities.
Directions on Whole of Government Approach
Directions for a whole of government approach will relate only to a “pertinent subject matter”. These pertinent subject matters are restricted to five areas as set out at sub-clause (3) – first, employment, management and discipline of employees; second, management of official documents; third, financial and resource management and accountability; fourth, use or development of information technology; and fifth, data governance and sharing.
Such whole-of-government directions are to be issued by, I presume, the Prime Minister’s Office, on the recommendation of the Minister in charge of the pertinent subject matter. In addition, the directions can be issued only for the purposes set out at Clause 4(2), such as securing economies of scale, efficiency of public programmes, ensuring business continuity and managing financial risks. Over all, I welcome the thought process behind Clause 4, and the implied reminder to Ministers that directions should not be issued for extraneous purposes.
Directions to Group 1 Statutory Boards
The second type of directions are to be issued to the 50 statutory boards falling under Group 1A and Group 1B of the First Schedule on the performance of their specific functions. These statutory boards include major public functions that affect the lives of Singaporeans across the board e.g. the Accounting and Corporate Regulatory Authority, the Central Provident Fund Board, the Housing and Development Board, Land Transport Authority and Public Utilities Board. I understand from the Minister that he will be moving an amendment in Committee to include the Group 1C public body, namely the People’s Association, under Clause 5 as well.
Clause 5 states that such agency-specific directions are to be issued by the Ministers responsible for those agencies. Implied here is the drawing of a line, that other Ministers have no authority to give instructions to agencies not under their charge about the performance of the agencies’ functions. In this regard, it would be important to understand the spirit behind this provision. According to the Explanatory Note, there are currently inconsistencies, and this Clause will help avoid duplication of laws. Could the Minister give an illustration of this problem, so that one can better understand how Clause 5 will help?
Limits on Ministerial Directions
I now move to Limits on Ministerial Directions under Clause 11. This is an all-important clause which seeks to limit the Minister’s powers to issue directions to public sector agencies i.e. not just statutory boards but Ministries and government departments and Organs of State.
Clause 11 provides that a Minister’s directions must not be contrary to written law. A Ministerial direction is also not binding if it would impede or affect the performance of a statutorily independent function of a public sector agency or a quasi-judicial function of a public sector agency in a particular matter. To enable greater public understanding, can the Minister give some examples of such functions for the record? Earlier he mentioned the Courts, which is an obvious example, but could he give some further examples? Should there be a doubt as to whether a direction from a Minister is contrary to law or tantamount to an undermining of that body’s independence or quasi-judicial function, how will such an issue be resolved? Who should the public sector agencies complain to?
Clause 11(3) goes further to say that Ministers are NOT authorised to direct any public sector agency or any public body or public officer to perform or not to perform a particular act with respect to a particular person or persons. I have a few queries about this.
First, the clause is very widely worded, as there is no definition of what sorts of “acts” are contemplated. Read literally, does this mean, for example, that henceforth, a Minister cannot direct a statutory board to scrutinise the accounts of a particular company? Does this mean Ministers cannot instruct a Ministry or statutory board to issue a media release affecting particular persons?
Secondly, does Clause 11 apply to the “public service” which is defined to include the armed forces, the civil defence force and the police – are these considered “departments of the Government” and therefore “public sector agencies” for the purpose of this Bill? This is important because if Clause 11 applies to these services, a Minister would not be able to direct them to take particular actions e.g. to direct the police to arrest a particular person.
Third, while these restrictions on Ministerial directions are impressive on paper, they appear to me easy to circumvent. For instance, what is to stop a Minister from speaking to a public officer on the side to get such things done, thus by-passing the prohibitions in Clause 11?
De-politicisation for Real
Finally, according to the Explanatory Note, Clause 11 is there to “ensure that the public sector, like the Singapore public service, does not become politicised”. This sounds well and good on paper. There also seems to be an assumption that the public service is not politicized. But with a public sector that has known only one ruling party for nearly 60 years, how do we entrench a culture of political neutrality of the civil service in substance? How do we achieve de-politicisation in reality?
For instance, buried in our statute books is a piece of legislation called the People’s Association Conduct and Discipline Rules. These Rules expressly state that “every employee shall refrain from engaging in party political activity and shall maintain complete reserve in all matters of party political controversy”. Besides this, I believe there may be similar pronouncements elsewhere. But are the codes being observed on a daily basis? Are the Ministers themselves all mindful of letting public servants do their jobs professionally and not putting them under political pressure?
Conclusion
The Bill is an attempt to entrench the relationships of accountability and demarcate Out of Bounds Markers for Ministers vis-à-vis public sector agencies. That is certainly a good thing. The Workers’ Party welcomes this development, after nearly 60 years under the same ruling party.
Nevertheless, as I have said, I have some doubts and concerns about how the Bill will be operationalised and what appear to be gaps that may allow the Bill’s intentions to be circumvented.