Proposed Amendments to Draft Rules of National Assembly: briefing

SUBCOMMITTEE ON REVIEW OF NATIONAL ASSEMBLY RULES
25 January 2001
PROPOSED AMENDMENTS TO DRAFT RULES OF NATIONAL ASSEMBLY: BRIEFING

Chairperson: Adv JH de Lange

Documents handed out:
Amendments proposed by Democratic Alliance (DP and FA)
Amendments proposed by the Parliamentary Law Advisers

SUMMARY
The Committee was briefed by the Parliamentary Law Advisers and the Democratic Alliance on their proposed amendments to the draft rules for questions in the National Assembly. New rules have also been drafted on certification and quorums.

MINUTES
Proposals by Parliamentary Law Advisers
Certification of Bills
According to Mr Anton Meyer, Parliamentary Law Adviser, there has been a problem with the certification of bills for some time. Bills introduced by the Executive are certified by the State law Advisers. As soon as a draft bill is approved by Cabinet it is sent to the State law advisers. They then make proposals and discuss it with the relevant Department. When the Bill is to their satisfaction the law advisers certify it and it is then tabled in Parliament. The certificate issued states that the Bill has been properly drafted, is consistent with the Constitution and will be able to be applied in practice.

In some cases the Minister insists that a Bill must be introduced as it is, even though the state law advisers may disapprove of the Bill as it is. One such example is the Immigration Bill, which was not certified by the state law advisers. The question of what happens when a bill has not been certified is one of the reasons why Parliament has decided to introduce a rule requiring certification.

Rule 243 (1)(a) sets out the only requirements for certification. Mr Meyer proposed that this could be changed to say that certificate must say the bill is inconsistent with both criteria, it must be certified for both (a) and (b).

Adv de Lange agreed that this made sense. If a bill is not certified it cannot stop the bill from being passed but it does help the work of Parliament. Staff may consult the chief law advisor and where there is no certification they can give a report.

Mr Ellis (DP) said this makes sense and it will guide the Committee considerably.

Mr Hahndick (National Assembly Table) said that the National Council of Provinces (NCOP) must do the same for consistency sake because some bills are introduced in the NCOP.

Adv de Lange said it can only be a rule once both Houses of Parliament approve it. He proposed that once the National Assembly has dealt with this matter and adopts it must be referred to the Joint Rules Committee.

Quorums
Adv de Lange explained that the Interim Constitution had a provision on quorums, which was adopted in the Rules of Parliament. The final Constitution changed the provision on quorums but the Rules were never amended. These proposed amendments will therefore bring the Rules in line.

Mr Meyer said that as it stands it is not a quorum provision but it covers decision taking. It would fit in better in Chapter 6 of the Rules, which deals with questions, as the NCOP has it.

Adv de Lange pointed out that it deals with the decision of questions.

Mr Soera (Table Secretary) asked if there was any other legislation imposing quorum requirements, besides the Constitution.

Adv de Lange said that if there was such legislation it would be unconstitutional.

Mr Meyer confirmed that there was no other legislation.

Mr Ellis (DP) asked what the quorum requirements were.

Adv de Lange said that when this issue was discussed it was decided that when voting takes place a quorum must be present. There is no quorum required when debates take place. He is of the view that the rule is unconstitutional while some say that it can be read in the context of the constitution.

Mr Hahndick commented that this is a question of the number of people who must be present before a vote takes place. Otherwise other majorities for decision making must be included.

Adv de Lange said that this was his view.

Mr Meyer suggested that a rule such as 133(2) relating to Committees is needed; that there is no need for a quorum unless decisions are taken.

Adv de Lange said he had no problem with making it clearer.

Mr Mahlangu (ANC) said that on many occasions in the House points of order flood in over a lack of a quorum, even where no decisions are being taken. It would be good to include Rule 133(2), as it would make the requirements clearer.

Mr Hahndick said that Rule 26 is consequential.

Adv de Lange said that the real change there is from three to five minutes.

Mr Hahndick explained that if there is no quorum to take a decision that decision would be suspended. Either the House would go on to other business on the Order Paper or the presiding officer would adjourn the House if that was the last order of business. If the presiding officer postpones the decision it may have the same effect of adjourning the House.

The previous rule which is being removed states that if there is no quorum after the ringing of the bell the presiding officer has no option but to adjourn the House.

Mr Soera asked whether it should not be 'before'?

Mr Hahndick said that the other rule is 27. When the House is adjourned because of the absence of a quorum the names of Members present must be recorded in the minutes. However, this does not help the lack of quorum at all.

Adv de Lange agreed that Rule 27 is superfluous.

Questions
Mr Meyer explained that the law advisers had tried to draft the rules in accordance with the interim procedure and suggestions made in a subsequent document drawn up by the Subcommittee of the Whips Forum.

There are three parts:

-A general part applying to all questions: Rule 107 only
-Questions for oral reply: the majority of rules
-Questions for written reply
The last few rules apply under oral questions and these apply generally to all rules.

The Democratic Party made a number of suggestions.
Notices and placing of Questions
They stipulate that there must be notice (Rule 107). This is more or less in line.
Questions for oral reply
Rule 108(1), (2) and (3) as in the existing rules.
What is new?
Rule 108(9), which is in line with existing practice. The lay out of questions in the Order Paper is determined by the rotation order among the parties, which is determined by the Chief Whips' Forum. Questions for oral reply must be dealt with in relation to three clusters, Safety and Security, Economics and Social Affairs. The clusters rotate on a weekly basis. Every third day a different cluster has a chance. If the Minister is absent on the relevant day, the questions must go on the Order Paper for reply by the Minister on the first occasion of question day for Ministers, in consultation with the Leader of Government Business. Thirty minutes are added to the question time for that Minister.

Rule 110 states that the Deputy President must answer questions every second week, four questions per day. However, there is no question time for the Deputy President if the President is scheduled or the Deputy President is scheduled for the NCOP.

The President answers questions every three months; six questions per day, and these are limited to issues of national and international importance.

In Rule 112 'Secretary' is to be replaced by 'Speaker'.

In Rule 113 time allocated and limits are in line with interim procedure.

Rule 114 deals with unanswered questions. These must be submitted in writing to the Secretary of Parliament. Rule 114(2) governs the procedure.

Mr Meyer said that a 114(3) should be inserted because the next rule is in conflict with Rule 109(3), which relates to where a Minister is absent for question time and the Speaker has directed questions to be put on the Order Paper for the next day. Rule 114(2) does not apply where the Speaker has made arrangements for the next day.

He suggested adding a similar provision to 109(3) in Rule 115(3).
Mr Soera said that here the onus was on the Member while in Rule 109(3) the onus is on the Speaker.

Adv de Lange said that Rule 115(3) is pre-emptive. If a Members so requests, it must happen. The two need to be linked. He found this problematic as it undermines the structure of the question system. The Minister simply does not arrive to answer questions. You cannot create too many outlets because the system is trying to force the Minister to answer questions every three weeks. The Rules making provision absent Ministers must be exceptions. Furthermore, it always undermines the questions which will be asked the following week if questions are held over.

Mr Ellis said that this point has been debated for a long time, especially the importance of Ministers being present. There are occasions when Ministers cannot be present. But the Chief Whips Forum has found that Ministers are too often absent and a means of forcing Ministers to answer questions would be welcome. He thought that Rule 109(3) is the main provision. The Speaker, as leader of the House, needs to enforce the Ministers' presence.

Mr Meyer referred to Rule 115(1)(b); if a Minister is not present the questions are held over. This creates a problem. Rule 115(3) tries to curb this. The DP has a proposed amendment for 109(3).

Mr Robbie Karreman (Questions Section) said that this is a definite principle stated in the Guidelines which is why they cannot ignore it. The Whips Forum also has not removed it.

Adv de Lange suggested that the Forum was wrong. He could understand why people have avoided using it as it could undermine the system and move accountability parameters outward. Even if a Minister does answer the questions at a later stage it affects the system.

Ms Rademeyer (Questions Section) added that it also leads to huge administrative problems.

Mr Meyer said that the current standard practice is that where a Minister so requests it, the questions must stand over. One could insert a requirement; that the Minister must give good reasons.

DP's proposed changes
Mr Ellis outlined the principles behind their proposed amendments. The DP had always said that question time is for the benefit of all parties and not for the Ministers; it is for the Member seeking evidence and answers. With that in mind they always stressed the need for interpellations, which are an important part of the parliamentary process. They would argue for bringing interpellations back.

Their concern was the long delays between a question being asked and answered. It is too long. Questions need to be answered within a few days of being asked. While aware of the incredible pressure on the questions section there is a need for information seeking and it is a pity that it cannot be speeded up.

A two-cluster system would have the best benefit for MPs. With recesses and the President in the House there is often a five or six week gap between a Minister answering a question. To avoid this, a two-cluster system would be better.

Questions to the Deputy President and the President need to be looked at. What does a 'three-month cycle mean'? They would welcome the President being in Parliament four times a year. Also, the Deputy President could answer more questions when it is his turn. If the process could be speeded up they would be happier with the system as it stands.

Ms Rademeyer said that on the question of delays, they are also caused by Departments, who need time to gather the information required and in the form it is required.

Mr Karreman said that shortening of delays would not unsettle the questions section.

Mr Ellis said that political parties also needed to be smarter in how they ask questions.

Adv de Lange agreed. He said parties need to prioritise their questions. Often there is no efficacy in the way in which questions are asked and there are some Ministers who are still not being asked questions.

Mr Ellis suggested two reasons for the latter. Members get tired of flippant answers and not getting the information they want. Some Departments have no sex appeal.

Adv de Lange said that the opposition parties could also avail themselves of the Promotion of Access to Information Act.

Mr Meyer suggested a change to the provision on questions to the President: 'every three calendar months.'

Adv de Lange suggested adding 'except in recess'. Did this mean four times a year? Last year there were only three terms. Something more appropriate is needed. The President is willing to answer questions four times a year. The Guidelines state 'once a quarter'.

Mr Hahndick pointed out that the opening speech and debate is already an interaction with the President.

Mr Ellis responded that Members of the opposition put many points to the President, but he cannot possibly address all their questions.

Adv de Lange asked how many questions on average a Minister would answer. Mr Soera said it was about eleven questions.

Mr Ellis said that delays are a source of frustration for Members and the Speaker shares this frustration. The DP did not think that the system works at all.

Adv de Lange said that follow-up questions are the way most Parliaments are going. Part of the problem is the fact that up to 80 questions are being asked at a time. Members need to prioritise questions.

Mr Ellis said that parties are given a chance to prioritise but forums should always be encouraged to look at a better question system.

Mr Hahndick said that Rule 109 foresees that the Chief Whips Forum may oversee certain issues and may take binding decisions.

Adv de Lange said he thought this was wrong, although practical. The Whips Forum cannot be given power they do not have.

Mr Hahndick replied that they do consult with parties.

Adv de Lange said he had no problem with this.

The Committee would meet the following Wednesday to discuss the proposed changes to the Rules.

The meeting was adjourned.