Statute Law Reform Bill

Order for Second Reading read.

4.40 pm

The Second Minister for Law (Mr Edwin Tong Chun Fai): Mr Speaker, I beg to move, "That the Bill be now read a second time".

Sir, this Bill does four things. First, it supports the revision of all Acts on our Statute Book. Second, it repeals obsolete legislation and makes technical amendments to other Acts. Third, it updates the framework for the delegation of Ministerial functions. Fourth, it supports the continuity arrangements for parliamentary sittings. I will give an overview of each of these aspects and touch on the key amendments.

Sir, Part 1 of the Bill deals with law revision. Let me set out first some background information, so that Members can appreciate the context in which the amendments in this Part are set.

The present Revised Edition of the Acts of Singapore was published almost 35 years ago in 1987. Since then, many new Acts have been enacted. Many existing Acts have been extensively amended as well.

Just looking at the past decade, from 2011 to 2015, 160 Bills were introduced in Parliament, of which 111 were amendment Bills. From 2015 to 2020, 225 Bills were introduced, of which 161 were amendment Bills. The length of each of the Bill has also increased over time.

This increase in legislation reflects the increasing complexity and also the scope of coverage of legislation, and its role in governance of this country. At the same time, as the Singapore Statute Book grows in size, it is even more important that our laws remain easy to understand, accessible and navigable by the public.

[Deputy Speaker (Ms Jessica Tan Soon Neo) in the Chair]

Since 2014, our law drafters have consciously used plain English drafting techniques for new legislation. The aim is to make the language of the law as modern, easy to understand and as simple as possible. This is the Plain Laws Understandable by Singaporeans initiative or PLUS, which sprang from public feedback in to AGC’s Legislation Division on how legislation is drafted and presented.

Some examples of plain English drafting techniques, which I am sure Members would appreciate, are as follows.

The length of each legislative sentence has been shortened, with long sentences and provisions broken up into different paragraphs or sub-paragraphs for easy navigation. Archaic words like "hereinafter", "hereby", and so on, which lawyers sometimes use all too often, are no longer used, as far as possible. The use of "shall" is also reduced. Gendered expressions are replaced with gender-neutral expressions, so "Chairperson" instead of "Chairman", and so on.

For existing legislation, the Revised Edition of the Laws Act provides for them to be revised to be more user-friendly. Law revision is carried out by the Law Revision Commissioners, with the support of AGC’s Legislation Division. In preparing a revised edition, the Commissioners can modernise and simplify the language of an Act or subsidiary legislation, provided that they do not change the meaning. So, for example, lengthy phrases and big words are replaced by simpler ones in the manner which I have outlined earlier. As far as possible, "shall" is replaced with "must" to signify legal obligation. The Commissioners also consolidate an Act with all subsequent amendments, so that the amended Act can be read as one unified document. This is particularly important for hard-copy laws. The Commissioners can also supply additional material that are useful to legislation users, such as information about the commencement date of each legislative provision.

The Law Reform Commission is now in the midst of preparing a revised edition of the whole Statute Book. This is a huge undertaking that started in August 2017 and will be the first universal revision since the 1985 Edition. This will be the ninth exercise that we have undertaken since Singapore had its own laws. The 2020 Edition is estimated to contain about 510 Acts and 27,000 pages. By way of comparison, in 1985, that Edition comprised 387 Acts and about 8,000 pages.

Madam, Part 1 of the Bill, therefore, amends the Revised Edition of the Laws Act to support this universal revision exercise that I have just mentioned. I will take Members through some of the main clauses to illustrate the purport and intent of these amendments.

Clause 4 will give the Commissioners additional powers to make editorial changes to legislation to bring it in line with modern law drafting practice, but without changing the meaning. This will enable the Commissioners to introduce some of the modern drafting techniques that I have outlined earlier. Clause 11(b) makes a related amendment to the Interpretation Act to emphasise that changes in drafting styles are not, in themselves, changes to the meaning of legislation.

Clause 5(b) and (c) will do away with the need to assign Chapter numbers to an Act. These numbers provide limited information about the Act. Sometimes, a Chapter number of a repealed Act is reused for a new Act, and this can sometimes lead to confusion. The Acts in the new revised edition will, therefore, not have any Chapter numbers.

Clause 5(a) provides for all Acts in force as of 31 December 2020 to be included in the new revised edition. Legislation coming into force after that date can still be included at the discretion of the Commissioners. The Commissioners intend to bring the entire revised edition into force on 1 July this year.

The Commissioners also intend to use their existing powers to introduce two new features. First, the short titles of Acts will include their year of enactment. For example, the Penal Code will be cited as “Penal Code 1871”. With the year of enactment, users will immediately have a rough idea of the history and how long ago such an Act was enacted. Second, each Act will also be supplemented with a complete and verified legislative history, tracing an Act’s history from its first enactment and through each subsequent amendment. This will be helpful to lawyers, academics and students alike, and others who need to trace and understand the evolution of a particular provision in the Act.

The universal revision exercise will support AGC’s move towards providing an authentic electronic Singapore Statute Book that is conclusive and in lieu of the hard-copy text.

Madam, our laws form the bedrock of our society and economy, and guide how we plan and conduct our affairs. Just as this House and its delegates make laws, the body of laws needs to be maintained to ensure that it is, and remains, accessible to all. The amendments to the Revised Edition of the Laws Act demonstrate and underscore how much importance we place on the Rule of Law by striving towards ensuring that our laws are navigable, accessible and easily understood by the people of Singapore.

Madam, I turn now to Part 4 of the Bill. The universal revision exercise, as I have mentioned earlier started some years ago, has also led to the identification of various Acts and provisions that are obsolete. Part 4 of the Bill seeks to repeal these obsolete laws. Let me go through the provisions and cite just some of the obsolete laws by way of example.

Clause 15 repeals spent or obsolete transitional provisions. These provisions were only intended to operate for a transitional period and are no longer necessary today. To give an example, Clause 15(1) repeals section 69(2) of the Accountants Act. That provision allows the Minister to amend any written law which is inconsistent with the Accountants Act. The intention of section 69(2) was to bridge any gap between existing laws and the newly enacted Accountants Act then, at that point in time. Any transitional amendments made by the Minister under section 69(2) would have been made closer to 2004 when the Accountants Act was enacted. Any further amendments to the Act are to be made in the ordinary way, through an Amendment Act passed in Parliament. Indeed, this has been done several times since that Act was passed in 2004. Hence, section 69(2) of the Accountants Act is no longer relevant today and can be repealed.

Clause 16 of the Bill repeals consequential provisions that were superseded by events and never commenced. For example, Clause 16(1) repeals section 65 of the CareShield Life and Long-Term Care Act. Section 65 of that Act makes consequential amendments to the Bankruptcy Act. However, that provision had not been commenced by the time the Bankruptcy Act was repealed by the Insolvency, Restructuring and Dissolution Act which came into force in July 2020. With the repeal of the Bankruptcy Act, section 65 of the CareShield Life and Long-Term Care Act has, therefore, been superseded and should be repealed.

I now come to Clauses 17 to 26 of the Bill, which I am sure Members would have gone through. It seeks to repeal obsolete Acts or obsolete parts of some Acts. Some of these Acts were enacted many decades ago and are archaic and no longer applicable today. For Members' benefit, for example, Clause 26 repeals the Personal Injuries (Emergency Provisions) Act. This Act was enacted in 1941 to establish a compensation scheme for war injuries sustained by workers or civil defence volunteers during World War II. I think, by my description alone, one can appreciate why we seek to repeal that obsolete Act. It has been 75 years since World War II ended.

Mdm Deputy Speaker, I do not propose to go into the fine detail on all the repeals. They take similar a vein, as what I have illustrated. But if Members have any specific questions on the provisions, I will be happy to address them in my reply later.

Madam, I will move on to Part 2 of the Bill. This deals with the delegation of ministerial functions.

It is common for Acts of Parliament to confer functions on Ministers, who are ultimately responsible to Parliament for the exercise of executive authority. The Prime Minister then assigns the responsibility for each Act to a Minister. Ministers, in turn, can delegate their functions under the current section 36 of the Interpretation Act with the President’s approval.

However, the existing framework only allows for the delegation of functions “in the absence of any provision of law to the contrary”. This restriction, therefore, depends on the context in which the specific enactment is made in the Act. Even if there is no express restriction in the Act against delegation, an implied parliamentary intention or a common law rule could prevent a delegation when it was not intended. The uncertainty as to whether a function may or may not be delegated is at odds with a rule that is meant to make public administration more efficient. If a function is non-delegable, the Minister cannot delegate it at all, not even to a Second Minister in the same Ministry. This is increasingly problematic and unnecessarily limiting. To make this clear, Part 2 of the Bill repeals and re-enacts section 36 of the Interpretation Act to create a two-tier delegation framework.

The first tier provides for delegations by the responsible Minister to a political officeholder in his or her Ministry. This could be a Second Minister, a Minister of State or a Parliamentary Secretary. These delegations require the Prime Minister’s approval because, constitutionally, the Prime Minister has the prerogative of assigning responsibilities to political officeholders. At the same time, because political officeholders are directly accountable to Parliament, the scope for delegation is also wider. Basically, almost all statutory functions can be delegated under this first tier. This would include statutory appeals that must currently be heard and decided by the Minister himself. There are only three classes of exceptions. First, function cannot be delegated if any Act expressly prohibits delegation. In practice, though, this will be rare. Second, the power to make subsidiary legislation, which is already delegated from the Legislature, cannot be further delegated. Third, the power to delegate under this section cannot itself be delegated.

As for the second tier, the responsible Minister may delegate functions to public officers and public bodies. This is not too different from the position that we have today. Delegation under the second tier of the framework is subject to any contrary legislative intention, which can be expressed or implied from the statutory context. Whether there is a contrary intention is really a matter of statutory interpretation. Relevant factors will include the nature and gravity of the function, as well as considerations of administrative necessity. The three restrictions that I have mentioned earlier – the three classes – also apply to the second tier. One point to note though is that the scope for delegation under the second tier is not as broad as the first tier. This is appropriate because the range of possible delegates under this second tier is wider.

Once a function is delegated under the new framework, the delegate will have the power to exercise the function in his or her own name. With this two-tier delegation framework, statutory functions can be more effectively performed and, where appropriate, by delegates as well. This will help to ensure that public administration is carried out smoothly and efficiently to meet the challenges of the day and that services are delivered to the public in a timely fashion.

I should highlight that the responsible Minister remains accountable to Parliament for how a function is performed by his or her delegate. A delegation also does not prevent the responsible Minister from exercising the function. In practice, the responsible Minister will continue to personally consider the most serious cases and exercise oversight over his or her delegates.

Madam, finally, I turn to Part 3 of the Bill. Members will recall that the Constitution was amended in May last year to enable Parliament to sit under continuity arrangements in times of exigency. In such times, Article 64A enables Parliament to meet, with Members of Parliament spread out over two or more places appointed by the President. Part 3 makes two amendments to the Parliament (Privileges, Immunities and Powers) Act in consequence of the constitutional amendments.

Clause 14(a) amends the definition of “Parliament” to include not just Parliament House, but also any other place that is appointed by the President. This clarifies that the privileges, powers and immunities of Parliament and its Members extend to all places appointed by the President under those continuity arrangements.

Clause 14(b) of the Bill makes it an offence for a person to interfere with the communication links between the places where Parliament is sitting, should there be more than one place. This is important as continuity arrangements are dependent on contemporaneous communication links, which allow Members to participate contemporaneously at a sitting from different locations. Any interference with such communication links can be disruptive to Parliamentary business.

Madam, in conclusion, this Bill makes amendments across a number of Acts to enhance the framework for the delegation of Ministerial functions, support the COVID-19 continuity arrangements for Parliamentary sittings and, finally, to support the Attorney-General’s Chambers’ efforts to modernise Singapore's statute book and improve the accessibility of our laws. Madam, with that, I beg to move.

Question proposed.

4.57 pm

Mr Louis Ng Kok Kwang (Nee Soon): Madam, this Bill will update and refine drafting practices, clarify the system for delegation of ministerial functions, and provide for Parliament’s continuity arrangements. These are necessary and welcome amendments. I will focus on the amendments on the delegation of ministerial functions. I have three points to raise.

First, the Bill proposes to allow the delegation of a Minister's function to a public body or public officer unless express or implied contrary intention appears in the Act. It would be very useful to the Court to have clear guidance on how contrary intention should be inferred. The Court of Appeal in Asia Development Pte Ltd vs Attorney-General [2020] SGCA 22 cited an English case for the position that the Court should consider the nature, scope and purpose of the function vested in the Minister and the relevant language of the statute and of the specific provision.

Can the Minister provide more specific guidance on what factors should be considered in inferring implied contrary intention? Moving forward, would the Ministry consider requiring Ministries to include more express language on the delegation of Ministerial function when drafting Bills to avoid Courts having to go through the process of inferring intention?

Second, the Bill allows delegation of function to a public body or a public officer. Helpfully, the Bill clarifies that if a ministerial function depends on the Minister’s opinion, belief or state of mind, the delegate may exercise the function based on the delegate’s opinion, belief or state of mind. While this can be done where a ministerial function is delegated to a public officer, it is less clear how opinion, belief or state of mind of a public body should be determined.

Can the Minister clarify how a public body's opinion, belief or state of mind should be determined?

Third, the Court of Appeal, again, in Asia Development Pte Ltd vs Attorney-General [2020] SGCA 22, suggested that it is good practice for Government agencies to clearly identify the role and capacity in which they are acting, and to explain this promptly when challenged. The Court also noted that it would be helpful to adopt a measure of formality in communication of Government decisions so that there is little room for confusion over which party one is dealing with and in what capacity they are acting.

Can the Minister share if there are plans for public agencies to adopt the Court’s recommendation in practice? Madam, notwithstanding my clarifications, I stand in support of this Bill.

Mdm Deputy Speaker: Minister Edwin Tong.

5.00 pm

Mr Edwin Tong Chun Fai: Madam, I thank Mr Louis Ng for speaking and expressing support for the Bill.

I just want to go into one clarification before I answer Mr Louis Ng's three questions.

Mr Louis Ng cited Asia Development and raised some good points regarding the delegation of the Ministerial functions under the new section 36 of the Interpretation Act.

I just want to point out for this House that Asia Development deals with the devolution of Ministerial functions under the Carltona principle. The principle is explained in the Explanatory Notes of this Bill. It is a common law principle established by the English Court of Appeal case. In that case, the Court of Appeal recognised that a Minister's duties and powers are normally exercised by responsible officers who act under the authority of the Minister. It is also recognised that the decision of the officer is the decision of the Minister in this instance. The new section 36(8) of the Interpretation Act makes clear that the principle of the Carltona devolution, which has been applied by the Singapore Court of Appeal in Asia Development, remains unaffected.

On the other hand, what is being introduced in this Bill is a delegation of Ministerial functions. Conceptually, delegation is quite different from a devolution. Where a power has been delegated under the Interpretation Act, which is what this Bill seeks to do, the delegate exercises the power in his or her own name, as I have explained in my speech earlier. In contrast, where a power is devolved under the Carltona principle, then the authorised officer exercises the power in the name of the Minister. I just want to clarify that before I address Mr Louis Ng's three questions.

Both delegation and devolution though are important tools to allow the Government to respond quickly and effectively to the needs of Singaporeans.There are also clear lines of accountability to Parliament, and to the public.

Mr Louis Ng asked how one might discern, the contrary intention as appears in the Act. I think the question is, what are the factors we look at to discern this contrary intention.

Mr Louis Ng would know that that is actually a matter of statutory construction and is not uncommon for pieces of legislation to contain this phrase "unless the contrary intention appears". In fact, this phrase appears more than 70 times on our statute books, and can be found in Acts such as the Partnership Act, Medical Registration Act, Copyright Act and Companies Act. In the Interpretation Act alone, the phrase appears more than 20 times. So, this is a concept that the Courts will be familiar with, legislative users are familiar with, and how to interpret them.

On the more specific question as to how this contrary intention against delegation can be inferred, there are well-established principles that can be applied. The express language of the legislation should first be looked at. That is the best indication of what the intention of the draftsmen is in that piece of legislation. The intention can also be implied by statutory context, by looking at the overall architecture and context, the construction of the provisions and the location in which this particular provision sits in the context of the broader provisions in the Act.

Mr Louis Ng also asked what other relevant factors could be taken into account. These include the nature and gravity of a function, and I think Mr Louis Ng himself mentioned, the nature, purpose and scope – they are not different – as well as considerations of administrative necessity. The exercise is similar to deciding whether the common law doctrine of Carltona devolution, which I mentioned earlier, applies.

So, to illustrate, at one end of the spectrum, where a power affects life and liberty, or is quasi-judicial in nature, such as the hearing of an appeal, then unless the express language makes it clear, then it is likely that there is an intention against delegation. On the other end of the spectrum, where the function is administrative in nature and likely to involve a substantial volume, such as transmitting a document from one authority to another, then it is very unlikely that there would be an intention against delegation.

Mr Louis Ng also asked whether statutes can expressly address the question of delegation. The short answer is yes. I think to the extent possible, this would be made clear in provisions and that is part of the exercise that the AGC is undertaking.

Specific provisions in an Act of Parliament may allow the delegation of functions, for instance, by providing that a Minister may authorise another person to exercise certain functions that are conferred on the Minister by that Act. The new delegation framework in this Bill does not affect those statutory provisions.

Mr Louis Ng's second question is how a public body's opinion, belief, or state of mind should be determined.

Madam, in general, a public body has, of course, its own independent legal status. But at the same time, it is also made up of natural persons. And the natural persons will usually comprise a Chairperson or some other members within the body. It is also not uncommon for the Chief Executive to sit as a member of the public body. The opinion of the public body would therefore be the opinion of the constituent persons, and this opinion would be formed in the same manner as how a public body ordinarily makes a decision. For example, if a Statutory Board can make a decision by a simple majority of its members, then this simple majority can likewise form an opinion for the purposes of making that particular decision. The exact process would, of course, depend on the legislation that constitutes the public body and any rules that they apply to the process under which the public body undertakes that decision-making. The broader point here though is that there are established legal doctrines which can be used to determine the state of mind of a public body, and this Bill does not seek to introduce anything which is fundamentally new or controverts existing principles in this regard.

Mr Louis Ng's third question relates to good practices recommended by the Court of Appeal in Asia Development.

Madam, shortly after the decision in Asia Development was released, administrative guidance was issued by the AGC to public agencies. The administrative guidance effectively adopts the good practices that were recommended by the Court of Appeal in Asia Development.

Madam, this brings me to the end of the three responses that I had for Mr Louis Ng. I think I have touched on all the questions that he has raised. With that, Madam, I beg to move.

Question put, and agreed to.

Bill accordingly read a Second time and committed to a Committee of the whole House.

The House immediately resolved itself into a Committee on the Bill. – [Mr Edwin Tong Chun Fai].

Bill considered in Committee; reported without amendment; read a Third time and passed.