Financial Times

A recent inquiry about a few Sri Lankan male workers being stranded in a Middle East country without receiving their dues drew this response from the authorities: “There are bigger problems that we have to deal with.”

Close to a million Sri Lankans, more than 60 percent of them women working as domestic aides, are toiling in the Middle East to earn a decent wage and valuable foreign exchange for the country. They leave behind their loved ones and often social disruption at home in order to provide a better education for their children or improve their quality of life.

In a sense, wage disputes may not the biggest problems that migrant workers face; there is rape, sexual harassment, disputes over overtime payment, food and accommodation issues and its mostly women who face these problems. Yet a problem is a problem and if the authorities are placing the problem like a wage issue on the backburner, then there is something wrong in our policy of encouraging foreign employment.

Going through the Foreign Employment Act of 1985 last week, we found a number of objectives relating to promotion of foreign employment or the protection and safety plus sound investment advice for returnees. On all counts – almost 30 years since Sri Lankans first began finding jobs in an organized manner after then Prime Minister Mrs Sirima Bandaranaike apparently persuaded heads of oil-rich Middle East during the Non Aligned conference here in the mid 1970s to provide jobs for our people – we seemed to have failed in protecting our workers. You just have to read the newspapers to learn the truth about migrant workers.

There are a lot of pros and cons over this issue and finger-pointing as to who is to blame has become a national obsession. The government is accused of not doing enough; employments agencies are blamed for fleecing the worker; migrant worker groups accuse both the government and the agents, and women’s groups protest over rights issues and sexual harassment while the poor worker watches this drama from the sidelines.

Last week there was an enough-is-enough approach by employment agencies who are preparing to take on the government because they face most of the flak when something goes wrong. Our story on the previous page speaks of a new campaign by the Association of Licensed Foreign Employment Agencies (ALFEA) to clear their name sullied by accusations of corruption and lack of concern for domestic workers after go abroad.

“We are also concerned about the safety and sufferings of the migrant worker. In having links with these respected organizations (and sharing information) we want to prove to the world that we have nothing to hide; that we deserve respect and status in a sector that ensures the country has enough foreign exchange,” says the ALFEA President referring to new ties with UN agencies including UNIFEM.

In fairness to the agencies, they are not totally to blame for the problems faced by migrant workers. The government must share much of the blame and migrant workers – mostly due to their ignorance – are also to blame. But this is not about the blame game.

Like ALFEA, we need an enough-is-enough attitude and a coming together of all the stakeholders in this sector at a roundtable where all these issues would be discussed and solutions found. This should be an exercise in resolving problems; not pinning the blame or finding scapegoats. NGOs involved in migrant worker issues must also share the blame for the crisis that workers are placed in.

There should be more collaborative workshops and seminars on seeking solutions to these issues with a larger section of NGOs joining together instead of individual efforts.

A coming together of the NGO movement in migrant worker issues is a must if we are to resolve these problems: otherwise it’s a case of meetings and meetings; a set of recommendations and ending at that.

But as stated earlier, this is not about finger-pointing. All groups (the media included) have a role to play in ensuring the rights of migrant workers and together all these stakeholders – now that employment agencies are coming out of the ‘closet’ – can make it work.

ALFEA has set the ball rolling by pleading for a consultative process with the government when fixing minimum wages and other issues. This is a good model to follow – a collaborative process involving all stakeholders that could brighten the lives of migrant workers.

By Chrishmal Warnasuriya

In this article, the writer, a Sri Lankan attorney and a Pupil Barrister - Of the Middle Temple, London who is reading for his Masters-in-law in London, provides an insight into the UK National Audit Act 1983 and its workings. This is particularly relevant following the recent drama over the Sri Lankan Auditor General’s annual report and the VAT scam.

The situation in UK prior to the National Audit Act 1983 was (as is presently in Sri Lanka and many other former English colonies that took over the Westminster style of government) more an ex post facto internal function. This meant primarily checking whether the relevant authorisations have been obtained or received for that particular spending by the government or its relevant arm that has incurred that expenditure; as opposed to any proactive role, such as carrying out an evaluation on the purpose of the spending itself, to see for instance whether that particular government spending had been (or was going to be) an economical one.

The Auditor General was answerable to the Treasury (and therefore the ruling government of the day) and not to Parliament made up of all parties (in particular joint committees such as the Public Accounts Committee). His primary function was to ensure that targets that had been set by the Treasury in its budget were achieved within the stipulated spending structures. However, this created a relatively ineffective form of auditing of the drastic Thatcher reforms of the 80’s, which radically transformed public officers and government bodies into non-state entities, the policy commonly referred to as “New Public Management”.

Thatcher wished to change the notion of a “State”, bring in large-scale privatisation and regulate such private enterprises. “Next Step” agencies were created (arms of the executive that were actually vested with the task of carrying out previously government administered work but under this method not accountable through the traditional government accountability structures).

I have professionally come across similar situations in Sri Lanka in matters where the executive has either “tendered out” or entered some contractual agreement with a private entity to provide a traditionally “governmental public service”, where technically speaking, the actions complained of (when invoking either the fundamental rights jurisdiction of the Supreme Court or when seeking review in the Court of Appeal for its illegality etc) fall outside the traditional definition of “governmental or executive action” in law, which therefore ushers in ancillary legal issues on the propriety of such actions.

Thatcher also envisioned an internal market for traditional public services and therefore competition within such public services, and subsequently, “public choice” where a citizen would have an ultimate choice in the public service he or she were seeking recourse to; and she was very keen on doing all of that. These however did not sit well with the traditional role played by the Auditor General in auditing what had used to be “governmental expenditure”.

New Public Management

The Thatcher government in 1979 consequently brought with it many changes in the administration of public services, which were thereafter followed by the Major government and re-named and re-introduced by Blair as a “third way” which in the eyes of some were merely a continuance of the same policies of the previous 18 years of government under the Conservative regime. Under the term New Public Management (NPM), a phrase that was coined to describe a number of reforms brought in by the Thatcher government, public administration was to change dramatically. It radically transformed the relationship between the individual and the state, transforming the citizen to a consumer and the state to a service provider.

Detailed studies, such as the Rayner efficiency reviews and scrutinies, the 1979 MINIS report – information on what each department was doing – the FMI–financial management initiative found that many civil servants agreed that most of their seniors were skilled in formulating policy but lacked managerial skills in service delivery.

This led to the decision to hand over execution of government work to agencies, to freely function away from day-to-day ministerial control to attain a clear division between policy formulation and implementation. Whilst the government decides on the benefits and their levels (policy), the distribution and administration of those benefits are handed over to the agencies (implementation). Most of these agencies were separate from government and set up by a framework agreement or document.

Efficiency, effectiveness, accountability

There were obligations cast upon most public services (under the new system) to publish performance data and records of their services, so that the citizens were well equipped to make their choice. For instance when all NHS hospitals would publish their surgery records and success rates, the citizen (the service consumer) was said to be well placed in making his choice on what hospital to go to, in order to receive treatment.

Another form of ensuring this was through select committees. Under the new system parliamentary select committees had a lot of roles to play as evidently the interference by the minister in the day-to-day actions of the agency was meant to be diminished. That is not to say that some agency chief executives did not have to work closely at times with the ministers in charge of their agencies. However, normal MPs were encouraged to directly raise queries with the relevant chief executive and after insistent lobbying, since 1992 such queries are now included in the Hansard.

The most prominent change however, at least in so far as our present subject under discussion is concerned, came about with the changes in the National Audit Office. Firstly there was an enhanced prerogative, to investigate the agencies, to summon agency executives to appear before the Public Accounts Committees (PAC), in their capacity as chief accounting officers for the agency. There was also provision to audit the functions of the Regulators that were created under NPM, to oversee and hear complaints (or appeals) against the actions (or inactions) of these newly formed agencies. Therefore some radical reforms came via the amendment to legislation and the formulation of the Act in 1983.

National Audit Act

This is seen widely as having reinforced the independence of the AG and his staff from the executive, in order to arrest uneconomic government spending. Some special features were seen in the new Act.

Special arrangements were made for allocation of centralised funds for the functioning and work of the department of the AG.

The Prime Minister (head of the executive here) was to act with the chair of the Public Accounts Committee of Parliament (who by convention is an opposition MP) when recommending appointments for the post of AG.

The AG became an officer of the house (not a civil servant in the former sense) and therefore not bound to report to the Treasury but to parliament (reporting to the House of Commons)

AG’s staff & National Audit Office

The NAO staff was not considered civil servants and the office was free to hire from outside, those qualified and felt suited for the job. Such a change I am certain would be most welcome in appropriate quarters in Sri Lanka, as this would pave the way for eligible and motivated youth, qualified in audit and with a desire to serve in that capacity, rather than being appointed on some large-scale recruitment system of the government, where on most occasions we have noticed that all that the applicants know of their prospective job is that they are to be “government servants” – that’s it.

There were two forms of auditing that came to the fore, as opposed to the single traditional “checking of paid monies” referred to in the introduction to this piece. These were Certification auditing and Value for Money audits (VFM).

Section 6 of the Act provides the formal statutory basis for VFM examinations at the discretion of the AG. This is the provision that empowers him to carry VFM out.

Section 8(1) provides for access to the AG for such value for money investigations, to obtain documents, summon persons or ask for explanations etc.

The NAO interprets their mandate to carry out VFM audits to ascertain economy, efficiency and effectiveness in the following manner:

Economy – What efforts have been taken to minimise the costs involved in that particular project,

Efficiency – Has the spending in question achieved or obtained maximum results achievable or in other words, has it performed to capacity,

Effectiveness – To what extent the policy objectives of the government in authorising that spending have been achieved. Therefore the mandate empowers the AG to question whether the spending in particular was duly executed to obtain the result that the government said it would achieve, as a result of this spending.

So how is Public Money generally (in theory) spent by an elected government? It usually involves the following basic steps in an elected democracy like ours (or indeed the UK):

Expenditure planning by executive – this is where the aforementioned limited resources are allocated to their best possible use on a scale of competing interests, by the executive, which in its opinion is the most favourable spending,

Parliamentary debate and approval – the (elected) representatives of the people (and therefore in theory the people), then evaluate whether this is the right way to spend such monies and either grant approval to the budget or defeat it,

Spending of what is voted/approved – thereafter the Executive would act on that approval (if granted) and go ahead and spend the monies in the manner stated.

Accounting for monies spent – thereafter the Executive would be called upon to account for that money that was spent.

Some writers argue that there is a constitutional principle behind the above process. Erskine May proposes that under this principle any government spending must be authorised by law, and law on this occasion for him, arguably forms the parliamentary approval.

Two further constitutional bases for parliamentary involvement in the spending process, as argued by various writers in the field are firstly legality for spending, that the votes represent the parliament’s choice of priorities amongst competing interests for resources.

This is why each vote is taken separately and once voted the appropriation bill becomes law and legally binding and why the government must come back and obtain another vote if they need to change the proposal. It is argued that the appropriation bill alone does not attribute this legality; whilst it sets out the quantitative parameters for spending, permanent legislation (like the Overseas Development Act 1983 in the UK) provides the qualitative legal basis for that authorisation of spending.

Secondly that the legal framework provides the basis for financial control, reporting and accountability – within government itself: where government doesn’t include the ministers and executive alone, but the whole apparatus of departments, civil servants and other officials.

It is widely accepted that the actions of the Public Accounts Committee, traditionally seen as the doyen of all select committees has been vastly influenced and enhanced after this legislation. Their inquiries are almost always audit-based, and they act on behalf of parliament in carrying them out.

They almost always receive able assistance from the AG and its staff, especially on VFM audit matters. The committee can now rely on the NAO for requiring and obtaining any necessary evidence and does not therefore have to be guided by the Osmotherly rules (which they would have needed to abide by, if seeking direct evidence and not via the NAO).

There has also been a change in traditional role played by the courts. It has been seen that the courts have traditionally opted to stay away from governments in so far as their expenditure was concerned, thus maintaining the traditional principles of separation and non-intervention in the affairs of another branch of government (following of course the firm and accepted theory that the legislature, the people’s elected reps, are the best suited to formulate and implement policy and not the Courts); have gradually however seen to be more at ease in going into matters of government spending.

The case of R Vs Secretary of State for Foreign Affairs, ex p. World Dev. Movement [the Pergau Dam Affair] [1995]:

The facts of this case are that the British government pledged certain funds to Malaysia for a development project. There was also a discussion of a related purchase of military equipment by Malaysia from UK, though not connected instantly. The officials of the Overseas Development Administration concluded that the proposed plan was an uneconomic one and this advice was recorded as having been given to the relevant Minister. However, contrary to this advice, in 1991 the Secretary of State for Foreign Affairs (SOSFA) took the decision to go ahead with the scheme, given the far-reaching implications that he foresaw for UK/Malaysia relations. The applicants who sought to review this whole aid package in court were a pressure group with interests in the area of foreign development aid, and they sought judicial review of the decision of the government to spend these monies.

In delivering judgment in favour of the applicants who sought review, their Lordships held that although the SOSFA could consider wider implications on foreign relations with Malaysia etc in his capacity as the Minister, the relevant provisions of the Overseas Development Act (Section 1 – which authorised such funding for projects) required that the grant of aid be limited to “promotion of economically sound development”; which the courts interpreted to mean it had not been the case on this occasion. It was determined that SOSFA had gone beyond his vires (the powers conferred upon him in law) in the statue and those actions have thus become illegal and unlawful.

Conclusion

When looking at the above “leap” that appears to have been taken by the courts to venture into this new area of audit as a basis for their review, one must keep in mind that “economy and efficiency” were not at the time typically court language but more policy oriented. This decision therefore has thus brought illegality and uneconomic spending to the same level, making uneconomic spending an illegal act in Law.

This I am certain would be a welcome change even in our domestic Court structure (in Sri Lanka), should the office of the AG be given similar powers to carry out VFM audits on the proposed spending by government ministers, for it must not be forgotten that it was the advice given initially on the non-economic nature of the aid that formed the basis of this review. This is now vested with the NAO office under the NA Act 1983.

This case also brought about some further changes in the National Audit Office in regulating the actions of NA Officers when interacting with Ministers. Though the Armstrong memo sets out that the duty of the civil servant is to his minister of the crown, in the case of accounting officers it was different and prior to Pergau, what was laid out in Government accounting regulations were:
1) A general duty to ensure proper advice to ministers

2) Where action attempted (by the Minister) is considered imprudent by the officer, he must object in writing and is under duty to inform the Comptroller and AG if advice is overruled and should only authorise payment on written instructions from the minister concerned

3) Where a planned action is against the wider interests of efficiency, economy and effectiveness, then such an officer was under a duty to inform the minister in writing but not obliged to carry it any further, having done so.

The above regulations were further amended by a Treasury minute following this case, to make them more stringent by including provision to forward those papers “without delay” to the C&AG (if the Minister has not taken the advice), even in situation (3) where it concerns policy, which manifests that the officers concerned have actually been strengthened to question even policy decisions, where they consider them to be uneconomic.

This form of change if implemented in Sri Lanka, I believe personally would encourage public-spirited officers to challenge wastage, corruption and malpractice in government, if they are given such authority by a similar legislative instrument.

I certainly hope so, for the greater good of us all – yet if there is any opinion to the contrary, I respectfully open the forum hereby, inviting such dialogue for it is only through such constructive criticism and dialogue that we would ever get our country anywhere, at least one day!