National Assembly Rules: proposals for changes & Money Bills Amendment Procedure & Matters Act

Meeting report

Role of the Subcommittee
The Chairperson gave a brief overview of the role of the Subcommittee. In the past the Subcommittee reviewed and made technical adjustments to rule amendments per instruction by the Rules Committee and did not handle political and policy issues which had not yet been processed by the Rules Committee. The Subcommittee’s membership and responsibilities were augmented, in particular by the mandate to research unprocessed political policies and issues.

In the previous Parliament the Subcommittee was instructed to establish a number of new institutions. Among the trickiest roles of the Subcommittee was a review of the Money Bills Amendment Procedure and Related Matters Act of 2009.

The Subcommittee needed to review the National Assembly rule-book, which contained a number of obsolete, confusing and contradictory items. For example, the current rule-book required the abolishment of the RDP Committee, which had been dissolved years ago. It was imperative to ensure that the rule-book reflected the current reality.

A draft of the Report on Decorum of the House: A Comparison of African Parliaments was distributed to Members.  The document was intended to assist the Subcommittee’s deliberations by highlighting important continental issues and trends.

In terms of a resolution passed by the previous Parliament, the Rules Committee directed the Subcommittee to establish a Joint Committee on HIV in conjunction with the National Council of Provinces.

Proposal to appoint a consultant to review the National Assembly rules
The Chairperson tabled a proposal that the Subcommittee requested the Rules Committee to approve the appointment of a consultant to assist with the review of the National Assembly rules. It was suggested that Mr Kasper Handiek, former Secretary to the National Assembly, would be an ideal candidate due to his outstanding experience and institutional memory.

Ms M Griebenrow of the National Assembly table agreed that the quality of the review would be much enhanced with the aid of Mr K Handiek.  Other available staff had less experience.

Mr P Pretorius (DA) concurred and noted that it was important that someone with a great deal of experience be brought on board to maintain continuity in the rules after changes were made.

The Chairperson advised that he had asked Ms Griebenrow to prepwere terms of reference for the proposal in anticipation of the Subcommittee’s approval.

Ms Griebenrow said that the Joint Rules Committee and the House Committee have agreed to a comprehensive review of all rules but a deadline had not been set. She suggested that a deadline was set for June 2010 but noted that ultimately the decision would be up to Mr Handiek, who would determine the form of the process and time-frame, taking the Subcommittee’s meetings into account.

The Chairperson asked whether this meant that the Subcommittee would be inviting Mr Handiek to submit a proposal which, after further negotiation, would constitute the basis of a formal contract.

Ms Griebenrow replied in the affirmative and said that it was important to note that Mr Handiek was the best candidate for the job and had already informally indicated his wouldingness to accept the position.

The Chairperson said that a clear contract had to be formulated, indicating the services provided by Mr Handiek.

Ms Griebenrow said that the review process would commence with a briefing and/or presentation by Mr Handiek on the origin and development of the current Assembly and Joint Rules, followed by a discussion in the Subcommittee on the scope and extent of the review.  Informed by this discussion and in constant consultation with the Subcommittee, Mr Handiek would outline a process for conducting the review of the rules and determine timeframes within which it can be completed.  The process should include a procedural scan of the current rules and an indication of proposed changes and/or adjustments already noted in the current rules, proposals in the decorum document compiled by the Chief Whips Forum of the Third Parliament and rule changes already proposed by political parties and individual MPs.  The main part of the review process would consist of a detailed and meticulous discussion of the various proposed rule changes and/or adjustments.  She suggested that a small technical task team was appointed for this purpose.  Mr Handiek would be assisted by designated staff from the National Assembly table as well as other Parliamentary staff, as and when required. The drafting of rules would be carried out by the Subcommittee’s supporting staff, supervised by Mr Handiek. Any comparative research required would be undertaken by the Subcommittee’s supporting staff.  The motivation to the Speaker would include the statement that the nature of the work to be undertaken (i.e. the review process) was such that it would not really serve any purpose to call on other persons to tender for the work. The work was of a specialist procedural nature that required specific skills and, in the opinion of the Subcommittee, Mr Handiek’s many years of procedural and Parliamentary experience would serve as a good sounding board for the review envisaged by the Rules Committee.

Ms Griebenrow explained that the Rules were the cornerstone of the manner in which business was conducted in Parliament and determined how the Houses functioned. It was therefore of the utmost importance that the end result of the review process, i.e. a new set of rules for both Houses and for the joint business of Parliament, should be of the highest quality and be able to withstand the severest scrutiny or test. Mr Handiek’s considerable hands-on experience, his practical approach to matters and his remarkable ability to focus on the essence of what was required were qualities which were essential to the review process.

The Chairperson asked if it was necessary to mention specifically in the document what institutional reforms were envisioned and which would invariably impact this process, for example the newly acquired authority to amend Money Bills.

Ms Griebenrow said that these issues were the rationale for the rule review.  She was unsure if it was necessary to include them in the motivation document.

The Chairperson felt that it might be of benefit to people who were not party to the process to understand the origins and rationale behind the changes to the rules.

Mr L Landers (ANC) agreed that inclusion of the institutional reforms would be helpful, to explain the necessity of the review at this time.  He agreed that Mr Handiek was the right person for the job but felt that he should not be allowed to determine the period of the review and the terms of his remuneration. It was necessary to obtain some indication of how long the process would take.  The final decision of what changes would be made would not rest with Mr Handiek.

The Chairperson noted that all changes were submitted to the House and Rules Committees by the Subcommittee.  Mr Handiek would be held accountable by the Subcommittee.  On the issue of remuneration and time frames, he expressed reticence that this process could be completed by June 2010 as suggested by Ms Griebenrow.  He felt that these matters would be resolved through successive meetings with Mr Handiek and the establishment of a formal contract.

Mr Pretorius remarked that it was important to remember that Mr Handiek would not simply present a finished draft at the end of the period, but that its completion would be the culmination of the review of successive sections.  Progress could be tracked in this way.

Ms Griebenrow noted that the time frame was established provisionally and could be changed with the signed agreement of Subcommittee members.

The Chairperson stressed the interactive nature of the process and emphasised that Mr Handiek would not be undergoing this review in isolation. It was the role of the Subcommittee to establish the parameters of the task.  He requested the agreement of Members of the Subcommittee to the proposal.

The proposal was accepted by the Subcommittee.

Submission of proposals to changes in the National Assembly Rules
The Democratic Alliance had submitted proposals for rule changes to the Subcommittee.  The Chairperson asked if the Members of the Subcommittee wished to discuss the proposals before they were tabled.

Mr Pretorius felt that the existing proposals could be submitted but added that more proposals might be submitted in future.

Mr Landers said that a deadline for submissions of proposed changes needed to be established.

The Chairperson noted the point and said that the Subcommittee would request the Rules Committee to establish an official deadline for submissions by parties and individual members of Parliament to prevent an unmanageable flood of submissions and ensure full Parliamentary participation.  He asked if policy reforms were still in progress, particularly concerning the oversight model.

Ms Griebenrow advised that the model was in the process of being implemented.

The Chairperson said that it was important that this model and all submissions were made before Mr Handiek began his work.

Mr Landers asked if individual Ministers and Members could make submissions independent of their parties.

The Chairperson said that the issue was an open question for the Subcommittee to discuss. The advantage of confining submissions to parties would be that internal party processes would prevent contradictions among the submissions made by individual party members.

Mr Landers said that if an individual by-passed his/her party when making a submission, it would simply be rejected. The individual submission would not make matters more complicated and might result in embarrassment of the individual concerned.

The Chairperson remarked that parties generally formed study groups to establish a position in advance.

Ms Griebenrow said that few individuals were interested in the rules.

The Chairperson said that ultimately the Rules Committee had to make the decision and the Subcommittee could not simply go and present the issues to individuals.

Ms Griebenrow asked if a project plan (drawn up in consultation with Mr Handiek) would be submitted to the Rules Committee for comment.

The Chairperson expressed reticence about engaging in negotiations about negotiations for fear of regression into pointless talk-shops.  He suggested that the terms of contract with Mr Handiek was determined and submitted to the Rules Committee.  A number of rules had been amended but a number of obsolete items remained.  An example was references in the rules to ‘leader of the house’ and a ‘leader of the official opposition’, which was incorrect.  Technical corrections could either be made over the course of the review or deferred.

Ms Griebenrow suggested that the Subcommittee went through the rule-book and altered items in obvious need of correction as part of the overall revision.

Mr Landers referred to the example of references to the ‘leader of the house’ and suggested that each item was examined in context to determine whether items needed to be corrected scrapped altogether.

The Chairperson said that the process of review was not new but changes were not always as simple as they first appeared. During the last Rules Committee meeting a proposal was accepted that elevated all positions of ‘Deputy Chairperson’ to ‘Co-Chairperson’ status. However, the Joint Standing Committee on Defence did not have a Deputy Chairperson but a position with a different title with near-equivalent status.  As the title was different, it could not legally be elevated to the status of Co-Chairperson.

Mr Landers commented that he did not understand why there was a Joint Standing Committee on Defence as well as a Portfolio Committee on Defence.  The tasks of the two Committees were essentially equivalent. As Defence was a national competency, it did not require the involvement of the NCOP.

The Chairperson remarked that the Subcommittee needed look beyond the technical aspects of drafting rules.  The respective parties needed to be sensitised to similar political or policy issues to overcome the Rules Committee’s past tendency towards indecisiveness.  Certain rules changes might need legislative changes and this could only be brought about through effective political communication.

Mr Pretorius commented that a request or proposal from the Subcommittee to the Rules Committee was a form of decision.  The Subcommittee was not authorised to make decisions and he wondered what the situation would be in the case of partial attendance by Members.

Ms Griebenrow said that as there was rarely full attendance at Committee meetings, there was an understanding that absentee members can make objections after a draft document was circulated.

Ms T Lyons of the National Assembly table suggested that documents were circulated with a deadline for objections and additions were submitted before anything was presented to the Rules Committee.

The Chairperson said the Subcommittee was established to make recommendations to the Rules Committee on the amendment of rules. The issue of appointing Mr Handiek to assist the Subcommittee might be a technical deviation but did not affect the role of the Subcommittee in any substantial manner.

Ms Griebenrow explained that a quorum was not necessary at Committee meetings.

The Chairperson proposed that the Subcommittee continued with the recommendation and proceeded as suggested by Ms Lyons.

Money Bills Amendment Procedure and Matters Act
Mr Perran Handiek, Procedural Officer of the National Assembly, explained that Section 77 (3) of the Constitution allowed Parliament to amend Money Bills, but required enabling legislation which was only recently implemented. This matter had been under discussion for some time and was raised as part of Parliament’s review over its oversight processes in 1999.  The matter formed part of the Subcommittee’s report on oversight and was recently referenced in the oversight model. In 2008, the National Assembly resolved that the Portfolio Committee on Finance should introduce the Bill. The Act went into effect on the 16^th of April 2009.

The Act was intended to match the budget process, which traditionally was divided into three phases, i.e. the drafting phase (taking place predominately in the executive), the legislative phase (when the budget was tabled) and the implementation phase (when the Departments actually spent the allocated funds). Up to now, Parliament had played a role in all three phases but not as robustly as envisioned. One of the main motivations behind the Act was to systematise Parliament’s responsibilities concerning the budget, for example the review of the Medium Term Budget Policy Statement. The budget impacted on everything done by Parliament, for example the implementation of policy, the drafting of legislation and conducting general oversight over Departmental spending.  This Act had far-reaching implications.

The Chairperson understood that the Act was very technically complex and that it would not be definitively dealt with during the current session of Parliament.  It would be necessary to schedule a one- or two-day workshop devoted to the legislation and its implications.  One of the more interesting and challenging aspects of the Act pertained to Section 3, which stated that “This Act applied to all proposed amendments to Money Bills before Parliament”. This provision can be interpreted in different ways as the Act put in place different mechanisms by which Parliament could engage with and amend the budget at different stages.  One interpretation was that the Act needed only to be applied if Parliament wanted to amend the budget. The other interpretation was that Parliament could not anticipate when adjustments to a particular budget needed to be made.  The systems and mechanisms provided for by the Act needed to be in place.  A third interpretation applied to the application of the Act. For example, if the Act regulated the processing of a Bill in a particular context, in a case of uncertainty over an amendment and regardless of whether the Act was explicit elsewhere or not, the Act would apply. In other words, the Act regulated specific matters, but in cases of uncertainty, the Act would apply.

Mr M Oriani-Ambriosini (IFP) said that Section 1 constituted something of a misnomer as it did not fully define the scope and role of the Act, which was designed to cover wider legislation than proposed amendments.

The Chairperson agreed with Mr Oriani-Ambriosini’s point. To the extent that this Act dealt with anything beyond the amendment of Money Bills, this should be explicitly provided for in the Act. As the Act was not confined to amending Money Bills and included matters of procedure, Section 3 allowed for the application of the Act in ambiguous cases which were not otherwise explicitly stated.

Mr Oriani-Ambriosini said that an advantage of this Act was that it made provision for a framework for its interpretation, particularly in Section 2 (a), which stated that “Every person interpreting or applying this Act must do so in a manner that gives effect to the constitutional authority of the National Assembly and the National Council of Provinces in passing legislation and maintaining oversight of the exercise of national executive authority”. It therefore clearly granted Parliament considerable power to intervene in money matters on behalf of the people in line with a kind of ‘no taxation without representation’ principle. It was therefore clear that this Act was meant to have a wider application than simply the amendment of Money Bills.

The Chairperson asked what the opinion was of the Parliamentary legal advisors.

Mr P Handiek replied that the Parliamentary legal advisor took the weaker interpretation, although this was not his own personal view, or that of his team.

The Chairperson said that if that in that case, the Act would have read something like ‘only in respect to any proposed amendments to Money Bills before Parliament could this Act be applied’, which was not the case.

Mr Oriani-Ambriosini said that this wider interpretation should be clearly added to the rules to clarify an ambiguity.

The Chairperson agreed and said that this would in no way contradict the Act and would help it to stay faithful to its original intention to apply to all Money Bill matters.

Mr P Handiek noted that the Act did not contain provisional arrangements and was currently in effect under the weaker interpretation even though the stronger interpretation seemed self-evident.

The Chairperson asked whether this meant that Parliament was in breach of the law, insofar that money processes may have been initiated outside the Act’s prescriptions.

Mr P Handiek responded that this might be the case.

The Chairperson said that there were then two possibilities for further action.  In the event that a case was made that Parliament had been acting outside the law, the Act might have to be amended to state that it applied only in instances of Money Bill amendments. Alternatively, Parliament needed to adhere to the current prescriptions of the Act.

The Chairperson asked for the opinion of Legal Services.

Ms R Mathabathe of Legal Services was hesitant to give her opinion, which might differ from that of the official but absent Legal Advisor.  She said that she personally favoured the wider, stronger interpretation. She motivated her rationale by noting that Section 3 referred to “all proposed amendments” and did not explicitly state any limitations, though the Bill might originally have been intended to be restricted to Money Bill amendments.

The Chairperson asked Mr Oriani-Ambriosini if he thought that the Act had exceeded its Constitutional mandate.

Mr Oriani-Ambriosini said that the Constitution did not explicitly state how Parliament should draft legislation dealing with Money Bills but simply that it ought to. The issue was a matter of coherence rather than Constitutional violation, and that it seemed that the Subcommittee was in agreement that only the second wider interpretation was reasoned and sound.

The Chairperson said that Parliament must then actively re-orientate its institutions to be compliant with the Act.

Mr P Handiek noted that, in compliance with the Act in its current form, Section 4 stated that four Committees, i.e. a Standing Committee on Finance and a Standing Committee on Appropriations in each House of Parliament were established. The Finance Committees were mandated to examine macro-economic policy, whilst the Committees on Appropriations had more of a coordination function with regard to departmental budgets. In Section 4 (5), the Act stated that the standing rules had to provide for a number of specifications including the composition of the Committees and the election of a Chairperson. There were no clear rules beyond the creation of the Committees, which were established without the rules being in place. The challenge was that some of the Committees’ other functions would require the establishment of rules.

The Chairperson said that the Subcommittee should confine itself to the express responsibility to give full effect to the Act by adopting any necessary rules and to establish exactly what was required.

Mr Oriani-Ambriosini said that as the establishment of the Committees and the election of the Chairperson had been taken care of, the Subcommittee’s attention must be given to establishing a procedure for how the respective Committees on Finance and Appropriations of each House would enter into consultation with each other. In addition, the Subcommittee may wish to consider putting in additional clauses in the rules to clearly outline and deal with how the Committees would approach budgetary processes.   He suggested that a cross-indexed rules book was compiled to aid easy implementation.

Mr P Handiek agreed with Mr Oriani-Ambriosini comments and said that much of the Act read like a rule-book because the process of amending budgets was a politically sensitive issue.

Mr P Handiek noted that Section 5 stated that the National Assembly, through its Committees, must assess the performance of each national Department on an annual basis and made reference to a number of specifications. Under this Section, each Committee must submit a Budget Review and Recommendation Report on an annual basis to the responsible Cabinet Minister and Minister of Finance. The reports must be tabled after the budget was adopted but prior to the adoption the Medium Term Expenditure Framework.  Two questions arose from this process. In terms of timing, these reports must be tabled before the Medium Term Expenditure Framework was tabled in October, when the House had a huge number of reports to process. The purpose of these reports was to enable National Treasury to incorporate the recommendations in the next budget. However, the reports were received fairly late in the process, when the budget was almost finalised.  If the recommendations were to be adopted by National Treasury, they had to be submitted much earlier.  The rules needed to specify an earlier date for submission of reports than October.

The Chairperson asked if the relevant Committees have been made aware of this aspect.

Mr Oriani-Ambriosini said that the changes have not yet been implemented but the Finance Committee was arranging a workshop on the matter.

The Chairperson suggested that the Subcommittee met with these Committees in order to establish a coherent rule structure.

Mr P Handiek said the Speaker had appointed a political task team consisting of House Chairpersons, and the Chairperson of the Finance and Appropriation Committees to devise an implementation plan for the Act and to establish the necessary rules. The Subcommittee may need to get guidance from them in order to make progress in a structured way.

Mr P Handiek explained that one of the new processes introduced had to do with the national budget. Within the national budget, there were three sequential stages: the Revised Fiscal Framework, the Division of Revenue Amendment Bill and the Adjustments Appropriation Bill. When the Minister tabled the Bills, the fiscal framework was referred first to the Portfolio Committee on Finance, which was allowed sixteen days to respond. Once Parliament agreed on the fiscal framework (which had never been tabled formally before) Parliament had the power to amend the framework, for which precise figures were required. After the fiscal framework was adopted by Parliament, the Division of Revenue Amendment Bill was referred to the Portfolio Committee on Appropriations and was followed by the Adjustments Appropriation Bill.  Recommendations from other Committees were received, to which the Minister of Finance was entitled to disagree. Finally, a report was tabled in the House. The Act was silent on budget debates within the House but the budget vote occurred after the debates had taken place. Each of these steps required a significant amount of time for consultation and compilation of the report and the process was usually completed by the end of April.  The timeframe had ramifications for the Parliamentary programme. 

National Treasury was concerned over the Division of Revenue Amendment Bill. The current practice was to pass the Bill by the first of March to enable money transfer to provinces at the beginning of the financial year. This Act made provision for a period of thirty-five days after the adoption of the fiscal framework for Parliament to consider the Division of Revenue Amendment Bill. This timeframe brought the entire process into April or May, thus hindering the Treasury’s transfer of funds. The concern with tabling earlier was that the Medium Term Budget Policy Statement (which was contingent on December revenue figures) could only be finalised in January. Further discussion needed to take place to consider the sequencing of the various processes and timeframes.

The Chairperson commented that the issues were complex and could not be finalised or even fully reviewed during the current meeting.  He suggested that discussion was postponed until the workshops convened.

Mr Oriani-Ambriosini suggested that the Subcommittee acquired a mandate to draft an early amendment and got an early start on resolving the apparent contradictions and ambiguities.

The Chairperson was of the opinion that the National Assembly table needed to re-examine the Act for areas where rules were explicitly required.

Mr P Handiek noted that specific rule amendments might be necessary for certain instruments.  Any rules decided at this stage might be subject to change and a possible solution would be to draft interim rules or House resolutions.

The Chairperson confirmed that the drafting of interim rules was done by the Subcommittee but the felt that the National Assembly Table still needed to re-examine the rules for subsequent deliberation by the Subcommittee.

Mr Oriani-Ambriosini was of the opinion that he had a Constitutional right to introduce legislation, as applicable to all Members of Parliament. In this case, the rules had to be changed in accordance with the Constitution to allow individual submissions.

The Chairperson said that the Subcommittee could commission a second opinion to establish Mr Oriani-Ambriosini’s contention as a technical matter.

The meeting was adjourned.