Review of the Joint Rules

Rules of the National Assembly

03 November 2009
Chairperson: Mr M Jacobs (ANC, Free State) & Advocate M Masutha (ANC)
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Meeting Summary

The sub-Committee deliberated its mandate with respect to the item on the agenda that enjoined the sub-Committee to review the rules of Parliament. There was extensive debate on whether this sub-Committee could be seized with the matter, as it did not appear either to have been referred by the Joint Rules Committee (JRC) or be a legacy item that had been specifically revived. Members briefly outlined what they saw as the functions of this Committee, with some believing that the sub-Committee had an ongoing and continuous brief to review the Rules. However, since the NCOP had already commenced with a review of its own rules, whereas the NA had not, it was decided that the matter could not be pursued, and that the sub-Committee should refer back to the JRC reporting upon what it had discussed and get a specific mandate. In addition, there was a need to consider, in the event that a rewriting of the rules was proposed, whether there was capacity to do this in-house or whether it should be outsourced, in which case the Committee would need to consider funding, availability of expertise and other issues.

The sub-Committee then discussed the Southern African Development Community Parliaments’ recommendations for the setting up of a Joint Committee on HIV and AIDS. They debated whether the idea of establishing the Committee had in fact been agreed, in which case all that this sub-Committee would have to do would be to draft rules to give effect to it. However, Members who had been present at the Summit and at the previous meetings of the JRC noted that there were issues raised about budgets and functions, and for this reason the matter was referred to this sub-Committee for further debate and to make a recommendation on the suggestion. Members gave their input. They generally agreed that it would be crucial first to determine the rationale behind and the intended mandate of the new Joint Committee. The problem of HIV and Aids was multi-sectoral and there was some doubt whether this new Joint Committee should merely be the point at which recommendations would be made and efforts coordinated, or whether it would be able to take further actions. If the new Committee was intended to undertake inter-departmental cooperation, then there was a Constitutional problem as there was no provision for this in the rules. The holding of meetings by Joint Committee was also something that was not covered. A Member suggested the setting up of a small task team, that would be able to consider the issues, perhaps do some research and advise further but no final decision was taken, in view of the shortage of time. Members were asked to reflect on the matters and present their views at the next meeting.

Meeting report

Joint Rules Subcommittee mandate and agenda
Co-Chairperson Advocate M Masutha submitted that this was the only surviving Committee of the joint or several rules Committees. The other sub-Committees had since been dis-established. Their task had traditionally been of a technical nature and entailed drafting rules where the respective Rules Committees had decided that there was a need. Ordinarily speaking, they did not deal with policy issues, which would have been dealt with elsewhere.

However, from the agenda drawn for this sub-Committee, it was apparent that they were increasingly being called upon to look at the underlying policy issues, for instance having been asked to deal with the establishment of a joint Committee on HIV and AIDS.
The Committee essentially had to consider two items -namely, the consideration of the Committee's draft agenda and the review of rules. The other item was the issue of the establishment of a joint Committee on HIV and AIDS.

Adv Masutha indicated that he had come across a decision, when going through the minutes of the last Joint Rules Committee, pertaining to the oversight mechanism when a matter had been referred to the sub-Committee for consideration. Adv Masutha asked the Committee Secretary to clarify whether the matter was before the sub-Committee or not.

The Committee Secretary submitted that the oversight mechanism had been adopted by the Joint Rules Committee, and there were obviously consequential rule amendments that were made. However, there was a task team that was currently looking at the implementation of all the provisions of the oversight model. The sub-Committee would have to look at, for example, the Financial Management of Parliament Bill proposals, and establish a joint mechanism to look at Parliament's budget and other such issues.

There was a need to reach clarity on whether this would replace the Plan of Action, or if it was in addition to it. Once the political task team had provided clarity on that then the sub-Committee could start looking at the joint rules, and start drafting the rules necessary for the implementation of the oversight model.

Adv Masutha commented that this was an example of what he had said earlier. The policy issues underlying the policy were sorted out elsewhere, and only once that was done would the sub-Committee would be in a position to formulate rules. He suggested that the matter stand over pending that clarity.

Co-Chairperson Mr M Jacobs expressed his doubt whether the matters had been properly placed before the sub-Committee for consideration.

Adv Masutha responded that the sub-Committee could only deal with the matter if it had been referred to it by the Joint Rules Committee.

Mr A Watson (DA, Mpumalanga) commented that he thought that Mr Jacobs was referring to a decision by the Joint Programming Committee a while back, to the effect that requests from the NCOP Chief Whip had to go to a main Committee first before being dealt with by the sub-Committee.

Review of the Rules
Adv Masutha requested that the sub-Committee proceed on the review of the Rules. By way of background, he stated that the matter dated back to 2007, when the Rules Committee saw the need to overhaul Parliament's rule book. Some of the things in the rule book were contained in convention, established practices and standing orders, so a new Member would not automatically know of the rules that were applicable to debates. In fact, the rule book went beyond mere rules. Although this had been discussed in the National Assembly, it was in fact applicable to both houses, and ideally there should be agreement of both since all rules of Parliament were to be reviewed. The aim was to adopt a common approach, whilst respecting the independence of each house. Joint Rules, although they existed, were not to form the focus of this sub-Committee. The Table Staff had proposed that the services of an expert should be called upon to do the whole exercise, and differing views were expressed on that, with some people questioning whether did not have sufficient capacity currently within the institution for all of this to be done in-house. The sub-Committee had requested the Secretariat to put forward a draft proposal for the appointment of such an expert and to come up with draft terms of reference.

Adv Masutha asked Mr Jacobs to comment on any issues that impacted on their current discussion stemming from the NCOP deliberations on the rules.

Mr Jacobs replied that at this point he was not sure, as he was still thinking what would be the implication of the decision. The NCOP had started to review the rules, which was why he was asking what would be the implication of the resolution.

Mr Watson asked once again if this matter had been referred to the sub-Committee by the Joint Rules Committee (JRC). He did not recall that having been discussed at the JRC.

Adv Masutha answered that it could have been discussed by the NA Committee. Perhaps this should be clarified from the minutes of the JRC.

Mr Watson responded that the document before the Committee spoke to the joint rules and the NA rules.

Adv Masutha explained that ideally separate sub-committees, on for the NCOP rules and one for the NA rules, would be seized with the matter. However, where the sub-Committees converged, at this forum, then they were in a position to compare notes and say what was the approach of each review of the rules, in order to reach a collective response to the issues. The matter was therefore before the sub-Committee in essence, and Members needed to discuss the best way that they could collectively approach the question. If the feeling was that this was a matter that had to be dealt with differently in different houses, and if the starting point was to say that maybe the NCOP sub-Committee might already have engaged with the matter, then maybe that had to be brought into the equation.

The Parliamentary Researcher submitted further information on the legacy issue from the Third Parliament. This was not a matter specifically dealt with at the last JRC, and it could not be found there, but had come forward from the Third Parliament

Adv Masutha then asked how best to deal with the matter in this case.

Mr Watson responded that that the current document was a memorandum written to the Speaker of Parliament and the Chairperson. On pages 4 and 6 there was an approval signed by Mr Zulu and Mr Mahlangu. The question he still had was from whom and from where this document had been referred to the sub-Committee.

Adv Masutha responded that this was a draft proposal and it was not a decision that had been taken.

Mr Watson responded that he realised it was not a decision. However, it was couched in the form of a request to the Speaker and Chairperson.

Adv Masutha replied that it was a draft request to come up with the deliberations and the decisions of the Committee. If there was consensus in the sub-Committee, that document would be taken further. If not, then it would be ignored. The sole purpose of the document was to provide a draft for the sub-Committee's consideration.

Mr Watson responded that this was the point that he did not understand. The sub-Committee had to have referrals from somewhere and he still was not clear from whom or from where that document had emanated.

Adv Masutha responded that Members should put the document aside for a moment and deal with the matters separately. The first issue that Mr Watson was raising was that the sub-Committee could only deal with issues that were referred to it by the parent Committee, and he noted that it did not appear from the Minutes that such a referral had been done. The Committee would need to resolve this. Adv Masutha was under the impression that this, a legacy issue dating back to 2007, had been in fact resuscitated formally at the last JRC meeting of the Third Parliament. The Parliamentary Researcher's feedback seemed to indicate that that never happened. If that was correct, then the Table Staff should not have put the matter before the sub-Committee. This issue needed to be clarified before discussing the context of the document.

The Committee Secretary conceded that it had been an oversight on the Committee Section’s part. However, she said that this item was on the agenda of the previous sub-Committee and for this reason it had been revived under this Committee, as a legacy issue. If Members wished it to be referred back to the JRC, then this could be done. It would postpone the consideration of the issues.

Adv Masutha noted that in this case, the matter should not be before the sub-Committee. He had been under the impression that this was resuscitated because the Third Parliament had been properly seized with the matter. If not, then it would fall off with the ending of the Third Parliament. He suggested that if Members wished to table a formal proposal to remove the item from the Agenda, they should do so, and any related documentation would also fall from the agenda.

Mr Watson affirmed that he would put such a proposal. The matter had to be dealt with afresh. Although Adv Masutha was part of the previous Committee, Mr Jacobs was not. The request in the memorandum was new. The matter had to be taken off the agenda and referred to the sub-Committee formally.

Adv Masutha apologised for the oversight and asked if there were any other comments on the matter.

Ms F Chohan (ANC) submitted that she was not sure whether the sub-Committee was working from the premise that anything that was not formally resuscitated in the new Parliament had to come to an end. She thought that this was a wrong assumption to make.

On the issue of the document, she had understood the memorandum to merely be an exercise that Adv Masutha and Mr Jacobs embarked upon as a tool to facilitate the sub-Committee's discussions. She agreed that it had no status. This Committee filled the need to have a sub-Committee to provide Parliament with the rules, so in a sense it was a standing sub-Committee, as opposed to the specifically-named “ad hoc” sub-Committees. She believed that this Committee had a standing mandate to review the rules. If it was the sub-Committee's express desire that the matter be formally referred to it from the JRC, then it could be done, although to her mind it was a non-issue. Whether this sub-Committee was to review ad hoc individual rules, or whether it was to review the rules in a broad fashion was something that the sub-Committee could at some stage deliberate.

Ms Chohan suggested that a report be tabled to the JRC, as to what the sub-Committee had done today, noting that the sub-Committee was also considering a review of the rules as a whole, was considering the appointment of a consultant, and would leave it to the JRC to express its views.

Adv Masutha sought clarity on why such a matter had to be brought to the sub-Committee in the first place, given that the sub-Committees of the Rules Committee of each house were responsible for the review of the rules of that house. There was a small portion of the rule book that contained joint rules, applicable to the joint business of the two houses. Normally this sub-Committee would consider only those joint rules, whereas the Rules Committee of each house would review its own rules. This was now referred to this forum for purposes of co-ordination. If there was to be a major project to review the entire rule book of Parliament, then there had to be a co-ordinated approach.

In answer to Ms Chohan, he noted his understanding that anything not completed by the end of the Third Parliament would fall away unless expressly resuscitated in the new Parliament. This was not the case with this work.

Dr M Oriani-Ambrosini (IFP) agreed that all pending business of Parliament came to an end on conclusion of a Parliament. The new Parliament was “born with no agenda”. He also commented that Adv Masutha had correctly stated that this matter would be before the sub-Committee because it would flow from the NA, and, following that approach, the NCOP. However, it now appeared that the NCOP had already embarked upon a process that could not be consistent with that approach. The NA had not adopted this approach. The matter had been brought before the previous sub-Committee, had not been finalised, and was not adopted by the JRC. There was a need to put the procedure right, by firstly considering the rules of the NA, then the rules of the NCOP, then to coordinate the joint business.

Adv Masutha asked if the NCOP colleagues wanted to share their perspective with regard to the process of reviewing the rules. He asked them to clarify if the NCOP was reviewing the entire rules or only certain rules, following decisions of the NCOP sub-Committee.

Mr Watson responded that the NCOP sub-Committee had taken a resolution to review the NCOP rules. In the previous Parliament, the whole Rule Book was reviews. The new Parliament’s NCOP Rules Committee had passed a resolution to appoint a new sub-Committee to review the proposals by staff. This was done in-house. This sub-Committee would be considering the provisions on Chapter 10 of the Rules later on in the day. It had already completed the nine other chapters, and had proceeded about half way through the rules. By the end of November, the proposals would be tabled. However, he clarified that the NCOP sub-Committee was not seized with the proposal before this sub-Committee.

Ms Chohan commented that she was trying to suggest a way forward in the matter because there was some sense that the sub-Committee could not proceed without the JRC’s specific mandate to do so. However, there was also a sense that because the NA had not yet done its overall review of the NA Rules, it would be premature to review the joint rules. This thought that this was missing a fundamental point about the joint rules. These joint rules were far from comprehensive. From the time that the NCOP was conceived, up to now, there were some glaring lacunae in the rules. For instance, there was no provision in the rules for Joint Committees to discuss matters jointly. She thought that, instead of speaking of a “review” the Committee should perhaps be thinking of “developing” the joint Rules. One was not a precondition of the other. She agreed though this sub-Committee must get a mandate from the JRC, to review the rules (although she reiterated that she did not think it was necessary) it should also put proposals to the JRC about how the sub-Committee should proceed and get a mandate on that.

Mr Kamal Mansura, Secretary to the National Assembly, submitted that the practice had been that the sub-Committee had considered matters on its own initiative and then reported to the JRC on what it had done, seeking confirmation to proceed with certain matters, such as the need for review of the rules. There were occasions, of course, when it also worked on a referral basis. This sub-Committee must agree in principle whether there was sufficient capacity at Parliament to re-draft amendments to the rules, or, if not, how the issue was to be resolved. In the latter case, a process must be set up to take into account the funding required, the expertise that was available in the field, and what process or mechanism to be followed to reach a conclusion.

Consideration of the recommendation to establish a Committee on HIV and AIDS.
Adv Masutha submitted that the impression he had received from the deliberations of the last meeting of the JRC was that a recommendation had been made by for Southern African Development Community (SADC) Parliaments to establish HIV-specific Committees in their Parliaments, subsequent to a conference in February 2009. Parliaments' respective houses had proceeded to adopt a resolution and to draft rules for the establishment of such a Committee. This sub-Committee needed to verify whether that assumption was correct and what the sub-Committee's mandate was in terms of the joint rules. One view held that the establishment of the Committee had already been decided upon, so that all it had to do was draft the relevant rules. However, another view held that the policy decision on establishing this Committee was referred to this sub-Committee by the JRC to debate.

Ms Chohan responded that she had been present at the JRC meeting when this matter had been discussed extensively. There was uncertainty as to how this structure could be created in Parliament. The feasibility of yet another Committee of Parliament, bearing in mind the budgetary implications, had come across squarely in that discussion. She suggested that with only slight amendments and some creative thinking across party lines it might be possible to establish a Committee without impacting upon these concerns. She therefore proposed that this sub-Committee establish a small technical task team to look into the various options in terms of the existing rules, and to table its findings to the sub-Committee at a later meeting.

Dr Oriani-Ambrosini commented that whilst he appreciated the importance of the problem, the fact was that HIV and AIDS was a national priority and a national emergency. He wanted to know exactly what would be achieved by establishing such a Joint Committee. It would not be able to process legislation, nor could it exercise any constitutional function. He wanted clarity on its terms of reference. Once this sub-Committee had identified what this suggested Committee was to do, then it could provide the rules. He could only assume that it would be mandated to conduct research, and coordinate and organise the NA and NCOP’s participation on these issues through other committees.

Adv Masutha responded that he had attended the HIV seminar. The underlying consideration was the multi-sectoral nature of the HIC/Aids challenges, so the idea was to coordinate all the different facets – such as HIV in the workplace, HIV in sports – and locate them under one structure, whilst recognising that this was not a health issue alone. He agreed that the points raised by Dr Oriani-Ambrosini, as to what the Committee could actually do were important, and there was a need to consider whether it would be the best vehicle to achieve the aims.

Ms Chohan commented that the input was absolutely central to the kind of proposal that this sub-Committee needed to make. In discussing the mechanism, there was also a need to discuss what the objectives were. She thought this was a discussion that needed to be done in smaller committee structures, and there was a need to undertake research arising out the summit, and to look at the resolution adopted in the respective houses, to check whether there had been any sense of what the mandate and jurisdiction of that Committee should be. She repeated that she thought this could be done by a small task team, to obviate concerns around the budget.

Adv Masutha responded that the sub-Committee could request another Portfolio Committee, such as the Health Committee, to advise on the matter, based on their own past experience of how effective Parliament had been. A host of programmes focused on health, so he was not sure how the task team would be constituted or what sort of technical expertise would go into that committee.

Dr Oriani-Ambrosini commented that two points had been raised, financial considerations and powers and duties. Adv Masutha had correctly identified the terms of reference as inter departmental co-ordination and social outreach. However, he thought that only the social outreach was Constitutionally permissible. An ad hoc Committee would have to be constituted in each of the houses in order to exercise any oversight and inter-departmental co-ordination.

Adv Masutha asked Advocate Suraya Adhikarie, Parliamentary Legal Adviser, to comment on how this mechanism would compare with the Joint Monitoring Commission.

Advocate Adhikarie responded that the Joint Monitoring mechanism in the past had dealt with a number of cost cutting issues, which stretched across portfolios. There had been attempts to bring those issues to a central point, and then make recommendations to the Portfolio Committees and Select Committees. However, the problem had been that the issues tended to be subsumed in the generally large workload of those committees – for instance, HIV and Aids was not the sole function of the Portfolio Committee on Health. Joint Committees did have the power to conduct public hearings, initiate enquiries and receive oral evidence. They could also call in the relevant government departments to get a clearer indication of what government’s domestic and international commitments were, and thus look at HIV and Aids in a more focused way.

Adv Masutha commented that the meeting would have to be cut short. He asked Members to defer the discussion, to give them time to reflect on the draft rules and consider also how they could interact with other Portfolio and Select committees. He could not see how a committee without oversight powers could be effective if it was correct that there was no provision for the exercise of oversight by joint committees.

The meeting was adjourned


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