Joint Subcommittee on Delegated Legislation: Draft Minutes of Proceedings

JOINT SUBCOMMITTEE ON DELEGATED LEGISLATION
19 February 2002
DRAFT MINUTES OF PROCEEDINGS

Co-Chairpersons: Adv M T Masutha and Mr T S Setona

Relevant document:
Options for a definition of delegated legislation (see Appendix)

Please note: These draft minutes were prepared by Committee Secretary, Ms M Gribenow.

Present:
Ackermann, C
Cassim M F
Lever, L G
Lockey, D
Nogumla, R Z
Pretorius, I J
Sulliman, M A

Staff in attendance:
M Griebenow (NA Table), J Borien (NCOP Table), M Tshotletsane (Parliamentary Law Adviser)

1. Opening and welcome (Agenda item 1)
Adv Masutha, as chairperson, opened the meeting at 12:10.

Apologies (Agenda item 2)
Apologies were tendered on behalf of Messrs Y I Carrim, P A Matthee, L C Mothiba, M E Surty and S N Swart.

3. Consideration of agenda (Agenda item 3)
The agenda, as presented, was adopted.

4. Decision of National Assembly Rules Committee (Agenda item 4)
At the request of Adv Masutha, Ms Griebenow reported that it had been agreed at a meeting of the National Assembly Rules Committee on 5 February 2002 that the Joint Subcommittee on Delegated Legislation had to expedite a separate proposal for an interim mechanism for the scrutiny of ministerial regulations, while it proceeded to complete the broad task before it.

Adv Masutha said that the concern was that the process had been a prolonged one. It was, therefore, necessary for an interim mechanism to provide Parliament with leverage to exercise its oversight of delegated legislation. He said that he had approached Ms Tsholetsane, the parliamentary law adviser, to consider the matter and provide input at the meeting. He further proposed that the matter of an interim mechanism be included as a recurring issue throughout the Subcommittee's deliberations.

Mr Cassim said that the Portfolio Committee on Justice and Constitutional Development had been applying a mechanism that required regulations to come before the committee before they came into effect. He suggested that the Subcommittee should approach the chairperson of that committee, Adv J H de Lange, and Ms F I Chohan-Khota, chairperson of the Ad Hoc Subcommittee on Oversight and Accountability, to provide input on the matter.

Adv Masutha replied that there were also other portfolio and select committees that used certain mechanisms. However, he was of the view that the proposed workshop would provide an opportunity for all relevant roleplayers to be brought on board and that any contributions could be made at that stage.

At the request of Adv Masutha, Ms Tsholetsane explained that the question of an interim mechanism was not a legal one to which she could provide a legal answer. However, there was an existing mechanism that required all regulations to be tabled in Parliament. The Subcommittee could ensure that such regulations were scrutinised by referring them to portfolio or select committees. The Subcommittee could set certain guidelines, for example that the regulations had to comply with the Constitution.

Adv Masutha said that it could be necessary to have a generic statute, such as the Interpretation Act, which would override and standardise the existing statutory arrangements in respect of the tabling of regulations.

Mr Lever suggested that existing measures should, in the interim, be followed as closely as possible. He added that as regulations were often obscure, it could be necessary to provide a period for public comment. That would have to be balanced with the understanding that regulations often had to be implemented urgently. Provision should be made for such instances.

Adv Masutha said that the comment was relevant, particularly in view of the constitutional provision that regulations had to be accessible to the public.

Mr Lockey said that regulations were made in terms of an Act to give the executive some flexibility. It would, therefore, be incorrect to require public input before regulations came into operation. Parliament needed to ensure that regulations complied with the parent Act and the Constitution. He said that the public had had an opportunity to provide an input when the parent Act had been considered by Parliament.

Adv Masutha said that the matter could be discussed further at the workshop, where each Ministry would be able to give its insights and views.

Mr Lever said since most regulations were highly technical, the only persons who would be able to inform members of the impact of the regulations, would be the persons affected by them. It was therefore important to hear the comments from the public.

Mr Sulliman said that the workshop should also look at the role of committees and that the Ad Hoc Subcommittee on Oversight and Accountability would be able to make a positive contribution to the discussions.

Adv Masutha said that he did not expect the Subcommittee to decide on the issue of the interim mechanism at the current meeting, but that he was confident that the workshop would assist it in developing such a mechanism.

5. Workshop on Delegated Legislation (Agenda item 5)
Adv Masutha indicated that the Subcommittee needed to decide on the date and the programme for the workshop. He referred the meeting to the proposed programme that had been distributed.

At the request of Adv Masutha, Ms Griebenow reported that the topics for the workshop had been extracted from the list of key issues that the Subcommittee had agreed upon. A period of approximately 45 minutes had been allocated for discussion on each topic. She said that although the resource people had not yet been identified, they were likely to be law advisers from the executive, legal academics and legal experts.

Adv Masutha said that the workshop would be a means of obtaining information and consulting with key stakeholders. He was of the view that every Ministry should be approached to send an official who was involved in the development or administration of delegated legislation. He also believed that statutory bodies such as Icasa and others such as the Community Law Centre and Centre for Applied Legal Studies should be approached.

Mr Setona said that it was important to distinguish between the general audience and the presenters of the workshop. He indicated his support of the idea of including internal experts, such as Adv J H de Lange.

Mr Lockey said that the State Law Advisers had to be invited since all regulations were sent to them.

Adv Masutha said that the Subcommittee would drive the process. He was, however, of the view that it was necessary to have input from Parliament and the executive. The State Law Advisers would act as resource people rather than stakeholders. The selection of participants could be done administratively. If members wanted to suggest specific people, they could interact with the Subcommittee secretaries.

Mr Lever said that he would prefer if the presentations were done by a panel of presenters representing a range of views, from the executive to public institutions.

Mr Nogumla proposed that the chairpersons of portfolio and select committee should also be invited to attend the workshop.

Mr Cassim said that it was important to use the expertise in the Subcommittee and in Parliament generally. He said as members dealt with such issues all the time, they had the greatest amount of expertise. Contributions from outside often came from another mindset.

Adv Masutha said that he was of the view that the parliamentary law advisers would be best placed to make an input, whether they decided to do it themselves or through a consultant, such as Prof Corder. It was important that Parliament's side, or the Subcommittee's side, was heard at the workshop, so that the other stakeholders could respond.

Mr Pretorius raised concern about the short time available within which to prepare for the workshop. He said that it could be useful also to approach members of the legal fraternity.

Adv Masutha agreed that the time constraints were of concern. He suggested that the Corder report could be forwarded together with the invitations to enable presenters in particular to use it in their preparations. He added that the approval of the presiding officers still had to be obtained in order to have access to the necessary resources. The workshop had been planned to take place before the April recess, so that the recess period could be used to process the inputs. A draft report would then be available when members returned.

Mr Cassim said he believed it was necessary for the co-chairpersons to undertake a study tour to New Zealand or Australia as soon as possible, so that they could obtain first-hand experience of the manner in which those Parliaments, at a practical level, dealt with the issue of the scrutiny of delegated legislation.

Adv Masutha said that the recess periods could be used to undertake such visits. Mr Pretorius said that it could be useful also to refer to the reports of previous conferences on the subject that had been attended by members of Parliament.

Mr Lockey said that the internet was also a valuable source of information on the subject.

On the proposal of Adv Masutha, it was
AGREED: That all the options presented would be pursued.

Mr Sulliman indicated that the proposed date of the workshop, 11 March 2002, could be problematic, as Mondays were usually set aside for study group meetings. Adv Masutha said that the first step was to seek the necessary approval from the presiding officers and the chief whips of both Houses.

On the proposal of Adv Masutha, it was
NOTED: That it could become necessary to reschedule the workshop if difficulties were encountered with the proposed date.

Ms Griebenow added that the Subcommittee had initially planned the workshop for 15 March 2002, but the National Assembly whips had asked for it be moved to 11 March 2002 to accommodate a sitting of the Assembly.

Discussion (Agenda item 6)
Constitutional mandate
Ms Tsholetsane said that the constitutional imperatives were contained in sections 101 and 140 of the Constitution. Parliament's role was threefold, namely to ensure that regulations were accessible, that they tabled in Parliament and Parliament created a mechanism to approve or disapprove instruments of delegated legislation. The requirement of tabling was not new, since it already existed in the Interpretation Act.

Adv Masutha said that the formulation of the relevant sections meant that Parliament had a discretion as to whether or not to create a mechanism that would require, firstly, tabling and, secondly, the approval of regulations. However, regarding the accessibility of regulations, the constitutional provision was that it was mandatory.

He said the question was whether it was feasible or desirable that Parliament, after it had delegated the law-making authority to another body, then first had to approve the subordinate legislation made by that body. Was the purpose of delegating the authority not to ensure that such matters did not have to be dealt with by means of the protracted procedures of Parliament?

Mr Lockey said that the portfolio or select committees were best placed to deal with regulations pertaining to their scope of work. The committees could assess whether the regulations were consistent with the Constitution and the parent Act. He was of the view that not all regulations should be tabled. He said Parliament should only intervene in exceptional instances, for example when regulations were in conflict with the Constitution or the principal Act.

Mr Cassim said that Mr Lockey's point was fair, but that the problem was that certain regulations, which had been formulated before the Constitution came into effect, were being implemented blindly. He suggested that there could be two approaches, namely a committee within Parliament overseeing current regulations, and an external consultant checking old regulations and alerting the committee if there is any conflict.

Mr Lever said that the Subcommittee should focus on the imperative that regulations should be accessible. He further proposed compiling an index of all Acts and their related regulations. The question was also whether accessibility referred to the language that was being used for regulations, ie that it had to be understood be lay people. Did it mean that they had to be available in all the official languages?

Adv Masutha said that it was clear that there were a number of issues that warranted further consideration and discussion. The Constitution provided for the languages in which legislation should be available. The Subcommittee could look at specific input on the matter, if it were required. Regarding their publication, the existing procedure was that regulations had to be published in the Gazette, with the assumption that the Gazette is accessible to the public. It had to be decided whether there was room for improving the existing procedure.

Adv Masutha said that if one wanted to have a mechanism to approve regulations on a matter of policy, the portfolio and select committees would be the most appropriate structures. If, however, one wanted to look at the constitutionality of the regulations, perhaps those committees were not the most appropriate, as they possibly did not have the technical expertise. One could, therefore, require a specialist structure that looked only at the technical issues and not the merits of the regulations. In respect of the tabling of regulations, the current practice was that approval was only required in rare instances.

Mr Cassim said that it could be useful to draft options in respect of each of the key issues that had been identified. He also suggested that representatives from Butterworths and Jutas could be useful resource people for the proposed workshop.

On the proposal of Adv Masutha, it was
AGREED: That the legal adviser would look at the different practices and draft various options in preparation for later meetings.

Definition of delegated legislation
Adv Masutha asked Ms Tholetsane to take the members of the Subcommittee through the definition she had prepared.

Ms Tsholetsane said that the definition attempted to capture the characteristics that had been identified, namely that the power to legislate had to have been given to the executive and that the delegated instrument had to be of a legislative nature, thereby eliminating instruments such as guides or codes.

She said that the term "regulate" could suggest that delegated legislation only referred to regulations, to the exclusion of other instruments.

Mr Lockey suggested that the term "regulate" could be replaced with the phrase " to give effect to".

Adv Masutha said that he did not have a problem with the term "regulate", because even an Act of Parliament could regulate matters. He said that the importance of the term "regulate" was that the instrument had the force of law.

Adv Masutha added that proclamations that simply announced the coming into operation of an Act could be excluded. It would, however, always be a case of interpretation. If a department was of the view that a particular instrument did not constitute delegated legislation and did not have to be referred to Parliament, and it subsequently transpired that it was delegated legislation, then it would be in trouble. The onus would therefore always be on the department to refer the instrument to Parliament.

Mr Lever said that one should look at whether a definition of delegated legislation was required. If one simply listed those instruments that were not delegated legislation, one could find that a definition was not necessary.

Adv Masutha replied that even if one accepted that there was a risk in having a definition, the issue was that if there were no definition, departments would not know what to refer to Parliament.

He suggested the following: One could say that any instrument that specifically called itself "regulations" had to be referred to Parliament, or one could say that any instrument, such as those which called themselves "regulations" but had a regulatory function, had to be referred to Parliament, or one could say that any delegated instrument of a legislative nature had to be referred to Parliament.

He said that the existing arrangement was that the statutes themselves indicated whether the regulations had to be referred to Parliament. The Subcommittee was trying to create a generic power that would cover a range of instruments.

Mr Lever said that his view would fit into the third category that Adv Masutha had suggested, namely to identify those characteristics that made it necessary for oversight. He felt that it would be too risky to have a strict definition.

Mr Lockey asked what kind of instruments of a delegated nature there were other than regulations.

Adv Masutha replied that there was a myriad of such instruments which had varying degrees of legislative authority. Some could intrinsically be applicable to a particular institution and some could be applicable both extrinsically and intrinsically. He gave the example of the rules of court that were made by a rules board and related to court procedures. If these were not followed, the whole legal cause could be dismissed. These rules affected people's rights and, as such, were just as valid as laws or statutes.

He said that the history was that regulations were usually more vulnerable to legal challenge, but that was not necessarily always so. Another example was that of codes of good practice, such as those found in the Labour Relations Act, which also set out procedures to be followed. Although these did not have the force of law, courts would take the procedures into account when assessing, for example, whether a dismissal was fair.

As had been pointed out by the legal adviser at the previous meeting, the fact that an instrument was referred to as a code did not necessarily mean that it did not have legislative authority. The name could offer some guidance, but it had to be noted that regulations only had the force of law because the definition of the parent Act said that the Act included the regulations made under it. The problem arose when the parent Act was silent on what the legal status of the instruments were.

Ms Tsholetsane said that there was a definition of subordinate legislation in the Interpretation Act. It was problematic though, because it mentioned proclamations and, as had been said previously, not all proclamations were of a legislative nature. A scrutiny mechanism would presumably not deem it necessary to scrutinise an instrument such as, for example, a proclamation announcing the date of coming into operation of an Act. The definition she had proposed was, therefore, aimed at overcoming the problem of nomenclature.

Adv Masutha said that when the President assented to an Act, he was exercising a power under the Constitution and therefore such a proclamation was original legislation and not delegated legislation. He said that it could be useful to look at the provision in the Interpretation Act. It could also be useful to give a list of the types of instruments, without the list being exhaustive. An option would be to combine examples with the characteristics in the definition. He asked members again to look at the opinion of the law adviser that had been circulated at the previous meeting.

7. Consideration of minutes of meeting on 25 January 2002 (Agenda item 7)
At the request of Adv Masutha, the minutes were noted.

8. Matters arising (Agenda item 8)
There were no matters arising.

Closure
The meeting adjourned at 13:50.

Appendix:
OPTIONS FOR A DEFINITION OF DELEGATED LEGISLATION

Original legislation:

The power to enact legislation is provided for in the Constitution.

Examples of original legislation:
legislation emanating from Parliament,
legislation emanating from Provincial Legislatures
legislation emanating from Municipalities

What about proclamations by the President?

View 1:
We need to distinguish between proclamations announcing that the President has assented to an Act of Parliament (i.e. that the Act has become law) and proclamations announcing the date of commencement of an Act (i.e. that the law has come into operation).

The Constitution provides that the President can assent to an Act of Parliament. It must therefore mean that this is an original power and that the proclamation is original legislation not delegated legislation.

An Act of Parliament will sometimes provide that the commencement date will be determined by proclamation. It therefore follows that the proclamation announcing the date of commencement is delegated legislation.

View 2:
Most times an Act of Parliament will indicate that the date of commencement will in fact be the date on which the President assents to the Act of Parliament. In these instances the proclamation must be seen as delegated legislation.

Do we need a definition of delegated legislation?

View 1:
Yes. A definition will bring certainty as to which instruments must be referred to Parliament. If the definition is too wide, we might end up frustrating the functioning of the Executive because then all instruments would have to come to Parliament for approval. If the definition is too narrow, we might end up excluding instruments which should be brought to Parliament for approval

Options proposed:

Option 1
It could be narrowly worded to say that only instruments that call themselves "regulations" should be referred to Parliament

Option 2
It could be worded so that it focuses on the "name", and the "nature" of the instrument. In other words to say that only instruments that call themselves "regulations" and which have a regulatory function, should be referred to Parliament

Option 3
It could be broadly worded to say that all delegated instruments of a legislative nature should be referred to Parliament

View 2:
No. A definition will carry the risk of instruments falling outside of the definition not being referred to Parliament, when in fact they should be. Similarly instruments falling inside the definition, being referred to Parliament, when in fact they should not be.

Options proposed

Option 1
List the instruments that are excluded and which should not be referred to Parliament


Document prepared by Ms J Borien
23 February 2002