Reviewing the Legislative Process in Parliament
Committee of Chairpersons
02 September 2010
Chairperson: Mr O Bapela (ANC)
A review of the legislative processes in Parliament had been undertaken by a Parliamentary Task team, and their report was presented to the Committee. The Task Team had been mandated to look at various issues that had been shown as problematic in recent years, including the basis of Constitutional Court challenges and the Court’s decisions. The presentation highlighted the legislative process, from initiation and Cabinet approval of a bill through to its final signature and coming into operation. Key aspects that were particularly relevant to the Committee of Chairpersons, including the public participation process and committee deliberations on a bill, were highlighted. It was noted that the public participation rule was particularly sensitive, and many successful challenges in the past were based on claims that insufficient participation had been allowed.
Three recommendations were made by the Task team regarding the pre-introduction processes. It recommended that there should be substantial engagement between Parliament and the Executive on all pre-introduction processes for Bills, specifically around the application of Joint Rule 159, National Assembly Rule 241 and National Council of Provinces Rule 186. It also recommended that it was necessary only to publish the long title or a summary of the objectives of the bill concerned when alerting Parliament and the public of the imminent introduction of that bill into Parliament. The Task Team also recommended, in relation to the committee stage, that the various processes that a committee should follow when considering a bill should be spelt out in the Parliamentary Rules, and elaborated on in a handbook. It also recommended that the public participation process should be formally closed before the committee progressed into the deliberative phase, although this did not prevent the committee from continuing to receive submissions after formal closure. The Task Team also recommended that no purpose was served by the adoption of a Motion of Desirability. The Rules should provide that the final version of a bill, including all amendments agreed to by the committee, should be before the committee when it voted for or against that bill. Some issues of deadlines would typically be covered in the handbook.
Members of the Committee discussed whether it was preferable to have matters covered in a handbook or rules, stating that the former may well only be regarded as a guideline and may not result in standardisation. Members felt that it was important to have a record of the public participation, and noted that this was not set out in the Rules but had been pronounced upon by the Constitutional Court, and also expressed the view that definite timeframes should be set out for this. They enquired whether Ministers or Deputy Ministers were apprised of the procedures, and whether they should engage directly with committees on bills. Members also noted the importance of correct costing, and enquired what procedures were set out for that, and raised questions about challenges to the constitutionality of bills, and how these could be made. Members noted that the presentation had not dealt with private Members’ bills, Green and White Papers, how a bill impacted on related legislation, and the tagging mechanism. They agreed that substantial discussion was still needed, and a follow-up session was required.
Reviewing the Legislative Process in Parliament
Mr Kopeng Bopela, Chairperson of the National Assembly Chairpersons Committee, said the purpose of the meeting was to assist the Chairpersons, of the National Assembly committees, particularly those who were new to the post, to deal with legislative procedures. He noted many apologies due to a number of chairpersons having concurrent Parliamentary commitments, and said a further session would be arranged to accommodate those who were absent. This meeting would take the format of a workshop, which would be facilitated by Ms F Chohan, Chairperson of the Portfolio Committee on Basic Education, who had been the convenor of the Task Team responsible for the report.
Ms Chohan welcomed the Chairperson's initiative in arranging the meeting and introduced Mr Anton Meyer, an independent consultant and former Chief Legal Advisor at Parliament, who had assisted the Task Team.
Ms Chohan gave some context to the document. She explained that as the legislative process had matured and the interaction with the other branches of government had evolved, some snags had been encountered in the legislative process. After the first democratic election in 1994, there was an overwhelming feeling that the new Parliament, unlike the previous institution, should be an open and transparent institution. Much of the design of the institution and the practices that ensued after the country had become a democracy, were concretised into what a Court would regard as part of the 'law of procedure'. She explained that when a Constitutional challenge was made to legislation, an examination would first be made of the process through which it was adopted, and secondly on the substance of the enactment.
The mandate of the Task Team had been to look at the various issues which had become problematic, the comments of the Constitutional Court, and Parliament's practices. The challenges brought before the Constitutional Court related specifically to the procedures followed in the passage of certain Bills through Parliament. The intention of the Constitution was that it was up to Parliament to arrange its internal affairs. However, because these arrangements had been undefined, the Constitutional Court had effectively usurped the terrain on which Parliament should have pronounced itself, and had itself concretised issues and told Parliament what the law was.
The document that the Task Team had produced was drafted in legal format, since the recommendations that were being made had to be set out in legal terms. The Task Team made substantive recommendations with regard to the Rules of Parliament and the Joint Rules. Workshops had been held with Members of Parliament (MPs) of all parties. The Task Team had then taken the process forward, and made recommendations on the necessary amendments, based on the Court judgements.
Ms Chohan said that both she and Mr Meyer would present on the topics. They would miss out some sections in the document, as they were not necessarily applicable to this Committee, but rather to the Joint Rules Committee. They would deal with the legislative process and its various stages, the committee procedure, the tagging of bills, the public participation process and the legislative handbook.
Mr Meyer said the preparation of the document had started two years ago, but there had been some new developments, mostly in respect to the tagging of bills. A Constitutional Court judgement would require those parts to be rewritten. He explained the stages in the legislative process of ordinary Bills through Parliament. The Constitution provided for Bills to be introduced in Parliament by any member or committee of the House concerned. In practice, most Bills coming before Parliament emanated from the executive. Ordinary Bills went through a number of stages and the Task Team had flagged certain aspects in the rules which were not working as they should, and had made recommendations on improving them.
The first stage in the legislative process involved the initiating, development and Cabinet approval of the Bill. This entailed the preparation of a first draft by departmental specialists and other experts, and its formal approval, in principle, by the executive. While there were many reasons why Bills were conceived, ultimately all new legislation, whether it was a totally new bill or an amendment bill, aimed to change the existing law.
The next stage was the submission of the draft bill to Parliament. Joint Rule 159 required that once Cabinet had approved the legislative proposals, the draft of the proposed Bill had to be sent to Parliament, together with a memorandum that explained the objects of the proposed legislation. The draft of the proposed Bill was then referred to the responsible committees of the respective Houses. This procedure would enable committee members to acquaint themselves with the subject of the Bill, and plan for it. The Task Team had noted that in practice, this rule was not working as it should, and it no longer answered to the purpose of the Rule. There had been instances when Parliament had not received the Rule 159 draft. The Task Team also noted that as Joint Rule 159 was intended to alert Parliament to the fact that the proposed legislation was coming, it was not in fact necessary for the whole draft Bill to be sent to Parliament at that stage, and that the long title or a summary of the objects of the legislation should be sufficient. This was now included as a recommendation of the Task Team. Also, from a practical point of view the Bill was often considerably changed in the process and it was not advisable to have a draft Bill that was not fully thought through being made public.
The third stage was the processing of the bill into the form and style that conformed to legislative practice, and its certification by the Office of the Chief State Law Advisor as consistent with the Constitution. The next stage was the submission of the certified bill to Parliament's Bills Office for editing, publishing and proof-reading. Before the introduction of the Bill into Parliament, notice had to be given in the Government Gazette, and either an explanatory summary of the Bill, or the draft Bill as it was to be introduced, also had to be published in the Government Gazette. In terms of the National Council of Provinces (NCOP) Rule 186(2), the notice must contain an invitation to interested persons and institutions to submit written representations to the Secretary. The National Assembly (NA) rule required this invitation only when the Bill was published in the Government Gazette
Mr Meyer commented that the time period between the publication in the Gazette and the introduction to Parliament may be too short for public comments to be taken into account. It was thus for Parliamentary purposes that the bill was published before the introduction. In practice, comments sent before introduction to Parliament would be sent to the department concerned, and hopefully would be taken into account in finalising the Bill. The Task Team noted that these rules were not working as they should. There seemed to be compliance for the sake of formality rather than there being any meaningful role in the legislative process. The NA Rule 241 and NCOP Rule 186 intended to alert the public of the intention to introduce the proposed legislation in Parliament. The Task Team thus recommended that a summary would be sufficient for this purpose.
The next stage was the formal introduction of the Bill into the House, in terms of the relevant procedures prescribed by the rules of that House. These procedures differed according to the nature of the Bill. After introduction, the Bill was transferred to the Joint Tagging Mechanism (JTM) for classification. This classification was of critical importance as it determined the processes to be followed and the lawfulness and constitutionality of the Bill. The Bill was then sent to the relevant portfolio committee for consideration and a report.
Ms Chohan dealt with the committee stage, outlining the usual chain of events once a Bill had been referred to a committee. She said that her comments would apply to the usual procedure, when the bills emanated from the executive. Firstly, the subject matter would be introduced to the committee by the political head, the Minister, or by a Director General or a Deputy Director General of the department concerned. Firstly, there would be an informal discussion on the subject of the bill, which would help the committee to establish its preliminary views. The second stage was a clause by clause briefing on the Bill by officials of the department concerned, which would give the committee a detailed understanding of every clause and the identification of possible problem areas.
The next phase was the public discourse phase, when the general public would be invited to submit comments. The actual mechanism of inviting people to make comment was the subject of much discussion. A committee would be in receipt of submissions, either in written format, or a request from people to engage with the committee directly. The last step of the public discourse phase was the consideration by the committee of the inputs received. The Task Team had deliberated on the necessity that the public participation phase should be formally closed before the committee moved on to the deliberative stage. This became more important, because of challenges made on the grounds that the public participation rule had not been complied with. Often, there would be no record that a committee had engaged in the public participation process or that the committee had engaged on the submissions in a methodical way.
The Task Team had thus recommended that the public participation process should be formally closed before the committee progressed into the deliberative phase. The Task Team felt that the committee could continue receiving submissions from the public after the formal closure, noting the tendency of the public to continue sending submissions despite closing dates. Nothing prevented the Chairperson from distributing the submissions to the committee, or prevented members individually from picking up on issues raised in those submissions during the deliberative process.
In the deliberative phase the committee would draw from the submissions what it could, and would draft amendments. These was usually informed by both the public participation as well as by the committee’s own research. She indicated that often research was needed, particularly comparisons as to how other democracies dealt with the issues. The deliberative and drafting phases could go hand in hand.
The last phase involved adoption of the bill. The formal procedure was known as the 'adoption of a motion of desirability', which was a motion to accept the principle of and the need for the legislation. The general feeling of the Task Team was that this served no purpose.
The committee would then move to the formal consideration of the bill, where each clause was examined and every amendment was formally proposed and decided upon. The Task Team felt that where applicable, this stage should be followed by a motion for the committee to agree to the bill, as amended. Therefore a 'B' version of the Bill, which included all amendments, would be adopted by the committee. It was the committee's responsibility to ensure that the final product was before Members when they adopted the Bill. Concurrently, the committee should then consider and adopt the Committee Report that recommended the passing or the rejection of the bill.
In the case of a bill before the NCOP (excluding a Section 75 bill), the committee stage also involved the submission of the bill to each provincial legislature so that each legislature could for confer authority on its delegate to convey that province’s view on the bill, and vote according to the mandate he or she had been given. If there was a difference between the two Houses, a mediation process was followed.
A committee could recommend approval of a bill, with or without amendments, or the rejection of the bill, or, depending on the nature of the bill, a redraft of the Bill.
Mr Meyer then described that once the committee had finished with the bill, this stage was followed by the plenary stage. The bill would be placed on the Order Paper for consideration and decision by the House. If the House passed the Bill, it was then referred to the other House for processing in terms of its own rules.
The process in the NCOP involved going through a committee stage and a plenary stage, as in the NA. It was possible that a bill might be referred to a Mediation Committee, depending on the type of bill, particularly one that had been tagged as a bill under Section 76 of the Constitution, and the decision of the second House. The NA could overturn decisions of the NCOP by a two-thirds majority.
After the bill had been passed by both Houses, in accordance with the Constitution it would then be submitted to the President for assent. After this had been done, the bill then became an Act of Parliament and had to be published. A signed version of the Act was then entrusted to the Constitutional Court for safekeeping.
Three recommendations were made by the Task Team regarding the pre-introduction processes. Firstly, it recommended that there should be substantial engagement between Parliament and the Executive on all pre-introduction processes for Bills, specifically on the application of Joint Rule 159, NA Rule 241 and NCOP Rule 186. Secondly, since the purpose of Joint Rule 159 was to alert Parliament about an imminent bill, only the long title of the draft bill or a summary of its objectives should be sent to Parliament. Thirdly, since the purpose of the notices in terms of NA Rule 241 and NCOP Rule 186 was to inform the public of the imminent introduction of a Bill in Parliament, only the long title or a summary of the objectives of the Bill concerned should be published.
Ms Chohan outlined recommendations made by the Task Team on the committee stage. Firstly, the stages of the legislative procedure that a committee should follow when considering a bill should be spelt out in the Parliamentary Rules, and elaborated on in a handbook. The purpose of the handbook was to preserve the institutional memory around the processes, that would then concretise into a set practice and evolve into what could be called Parliamentary law. In view of various practices followed by individual committee chairpersons and the recent judgments by the Court, it was imperative that the public participation process should be separate from the deliberative stage. The Rules should provide that the final version of a bill, including all amendments agreed to by the committee, should be before the committee when it voted for or against that bill.
At the request of Ms Chohan, Mr John Jeffery (ANC), a member the Task Team, then gave some input. He referred mostly to administrative issues outside of the legislative procedure, such as time frames and deadlines for the introduction of bills to ensure that they were passed in the current year. He said that committee chairpersons should ensure that the public participation phase should not be delayed. As soon as chairpersons knew that bills were to be presented, they could initiate the process of receiving public comment.
Mr Jeffery said that the appointment of members of commissions and officials should be standardised. The same applied to regulations. Normally, committees did not have powers on their own, as theoretically Chapter 9 Constitutional entities were accountable to the NA, and not to the Executive.
Mr Meyer responded that the issue of deadlines would typically be covered in the handbook. Mr Jeffery had raised some pertinent points.
Ms Chohan cautioned that the processes mentioned were in-house arrangements to enable the process to run efficiently. If they were imported into the Rules then they could become matters that were subject to Judicial review. The handbook allowed for flexibility, so that if Parliament wished to function differently in the future it would be easier to change and institute new practices. The handbook was being suggested by the Task Team because it had been proven as an important tool in other countries, as illustrated by the detailed handbooks in Australia. She reiterated that it was far easier to change a handbook than to change a Rule, which required a whole Constitutional process to be followed.
Mr D Gumede (ANC -Chairperson of the Portfolio Committee on Tourism) asked whether the Task Team had considered scoping public participation.
Mr Bapela, addressing the issue of public participation, asked how best to achieve a balance in a democracy which was both representative and participatory. He noted the importance of the record of public participation, which would show that submissions had been engaged with, and were accepted or rejected for particular reasons. He raised the notion of when one could say 'the people had spoken', and the idea that in a representative democracy the electorate had given Parliament their mandate to govern by electing the Parliamentary members.
Ms E Coleman (ANC - Chairperson of the Portfolio Committee on Economic Development) wanted to know whether Ministers and their Deputies were apprised of the procedures to be followed. She also wanted to know whether the requirement that costing should accompany a Bill was still applicable, and what procedure was laid down for that. She noted that there sometimes had been problems in enacting Acts of Parliament as funds were not available. She asked what was meant by “reasonable time” for public participation. She also wanted to know whether the department or the State Law Advisors would be responsible for the amendments in the committee stage.
Mr S Sizani (ANC - Chairperson of the Portfolio Committee on Rural Development and Land Reform) said that the document had not dealt with how a bill impacted on related legislation or Departments, constituencies and stakeholders. He had encountered a problem in his committee, and wanted to know why there was no rule on that matter. He referred to the final stage of the legislative process whereby the finalised Act would be submitted to the Constitutional Court for safekeeping, and questioned why that Court would keep a law that was potentially unconstitutional, and why it was usually left to a member of the public to challenge the constitutionality of legislation. He said that nowhere in the Rules was specific mention made of the fact that public participation was a requirement, yet much legislation was challenged on the basis that there had been no such participation. He also referred to instances when one Act was repealed on the date that another Act replaced it, and asked who was responsible for co-ordinating the timeframes.
Mr S Holomisa (ANC - Chairperson of the Joint Committee on Constitutional Review) said that there were gaps in the presentation. For example, the Task Team had not looked at Private Members Bills. He referred to the motion of desirability and stated that the need for the legislation should have been established much earlier on in the process. He agreed with the Task Team that Parliament should do away with the Motion of Desirability. He felt that there should be a definite timeframe for public participation, with a cut off date after which no submissions should be entertained, except in exceptional cases, such as comment from persons in remote areas who genuinely had not been informed about the bill within the timeframe stipulated.
Ms B Dambuza (ANC - Chairperson of the Portfolio Committee on Human Settlements) also wished to speak to public participation. She wanted to know who decided on the criteria for when representative and participatory principles would be followed, and said these criteria should be specified. She supported the idea of substantive engagement between the Executive and Parliament, to prevent the tendency of committees to “hang on to” Bills. She supported the cut off time for public submissions, saying it would be disruptive to receive submissions during the deliberation stage. She echoed the question posed by Ms Coleman on the costing of the Bill, and agreed that departments often did not have the capacity for implementation of new Acts. She requested that the regulations be brought to the attention of the committees and Parliament, and the processes should be thoroughly debated to prevent problems when it came to implementation.
Mr E Sogoni (ANC - Chairperson of the Standing Committee on Appropriations) agreed that there should be closure in the process of public participation, to prevent Parliament opening itself up to litigation. He felt that Parliament should improve its communication strategies, and not only advertise in the the national papers, but also use other media such as radio, and also consider different language groups. He favoured using rules rather than a handbook, as the Rules were non-negotiable and everyone knew they had to be followed, whereas the handbook could be seen as providing guidelines only. He raised questions about the tagging process and noted that bills had been incorrectly tagged on occasion. He enquired what responsibility the respective committees had in this regard.
Mr M Fransman (ANC - Chairperson of the Portfolio Committee on Higher Education and Training) asserted the necessity for public participation even when a bill entailed minimal technical changes, as it could have a knock on effect. He supported the necessity for timeframes which must be stated upfront in advertisements and other media. In the event of substantial issues, the timeframes could be adjusted accordingly. He concluded that as the democracy matured, the issue of public participation would draw attention more often, and it would be best to articulate on the processes now.
Ms B Thomson (ANC - Chairperson of the Portfolio Committee on Women, Youth, Children and People with Disabilities) supported public participation, and engagement with submissions brought before the respective committees, saying that all persons or institutions deserved to be heard. She queried why it sometimes happened that some Ministers never engaged with committees directly on bills, either by attending the briefings or deliberations.
Ms Chohan said that the issue of public participation had been dealt with in summary when the stages of the legislative process were outlined in the presentation. It was also dealt with more substantially in the document. It was necessary to look at what the Courts had said on this matter, otherwise Parliament would be speaking in a vacuum. Whether or not the Rules were specific about public participation, Parliament had no choice other than to allow for it, as the Constitutional Courts had pronounced that public participation was a necessary step in the legislative process. Law was made not only by Parliament through its delegated legislative powers, but also by Court pronouncements. Parliament must look at the parameters, what was said, what was not said, and what were the spaces for Parliament to re-take that environment. Substantial discussion was still needed on those issues, and on the critical questions of representative or participatory democracy. Different practices by different committees highlighted these issues – for instance, some were able to hold roadshows to elicit public participation, but others simply did not find this feasible, because of the sheer volume of bills that they handled, or their budgetary constraints. Controversial Bills generated a lot of public interest. A case in point had been the Sexual Offences Bill, where there were huge numbers of interest groups represented, who wished to see prostitution legalised.
Mr Meyer reiterated Ms Chohan's call for a follow-up session, in which the questions posed could be addressed more fully. He said that this presentation had been a brief summary of a complex process, and therefore it did not deal with issues comprehensively, or with other aspects such as Green Papers and White Papers and Members Bills.
Mr Meyer commented on the discussions around the respective merits of using a handbook or Rules. He agreed that if any matter was a prescript it had to be followed, therefore it should be in the Rules. The handbook was envisaged to deal with legislative processes in the broader sense, and could outline the various roles and processes in a more accessible way.
Mr Meyer responded to the comment about Ministers, and said that there should be co-ordination between the Executive and Parliament, which was why there were Parliamentary counsellors to assist. It was a sensitive matter as to whether Ministers should appear before a committee. It was not strictly necessary, but a committee could request that they attend, as it was in the Rules and in the Constitution, although it was generally used in exceptional circumstances.
Mr Meyer said that there were only one or two provisions that allowed for the Constitutional Court to give upfront verdicts on the constitutionality of an Act. The President could refer a bill to the Court if he or she felt that the proposed legislation was not constitutional, and Members of the National Assembly could apply to do so in terms of Section 80 of the Constitution. Any other challenge had to go through the ordinary Court process.
Mr Meyer stated that the presentation had not dealt in detail with the tagging and Joint Tagging Mechanism, the body responsible for the classification of bills in Parliament, so it had also not dealt with incorrect taggings. The Rules provided that a committee could consult the JTM if Members believed that a Bill had been incorrectly classified, and could ask the JTM to reconsider its decision.
Ms Chohan said that there was a precedent for committees to approach the JTM about the reclassification of Bills. The Sexual Offences Bill had been tagged as a Section 75 Bill, but had to be reclassified as a Section 76 bill, on the basis of one clause. Tagging had been dealt with substantially in Parliament during this matter. She stated that the issues surrounding tagging, went to the heart of the Constitution, as some matters were delineated as provincial responsibilities, while others were delineated as national. The tagging could upset that balance, so there were huge political and constitutional implications in tagging. Chairpersons of committees played an instrumental role in this arena.
Ms Chohan said that in the case of purely technical Bills, it had been conceded that public participation was not essential, so the Chairperson of the committee could use her or his discretion, as long as this was reasonably exercised. The Rules and Regulations gave away a lot powers and chairpersons should use them effectively. She noted that there was no rule requiring consultation with other committees, but in cases where bills clearly dealt with more than one competency, it would be necessary for committees to sit jointly and confer with one another. Some bills had implications for all committees and departments. Costing was also a complex issue, and it was imperative to assess the state of readiness of departments to implement new legislation.
Ms Chohan gave her perceptions on public participation. Some members of the public had vested interests, and could react strongly to the rejection of their input. To avoid controversy, submissions could be accepted and distributed to individual members in the committee, who then, in their capacity as public representatives, could raise these issues during deliberations. In answer to Ms Coleman’s question on what would be considered a “reasonable time” for submissions, she thought that at least two weeks should be adequate, depending on the urgency of the legislation. During the committee stage the committee and its chairperson were responsible for amendments, and the chairperson must check that the B version of the bill, including all amendments, was adopted by the committee. Although there was often reference made to the “separation of powers” in fact there was also a need for distribution of power. Cooperation was needed from all spheres to put a piece of legislation into effective operation.
Ms Chohan referred to the 'Motion of Desirability' and said that it did provide an opportunity for Members to oppose a bill, particularly if it was controversial. Committees often forgot that they could redraft a bill completely.
Mr Meyer added that the document dealt briefly with preparation of amendments, and said that the State Law Advisors had the expertise to assist with the drafting of amending clauses.
Mr Bapela noted that the Deputy Speaker would be looking at the procedural processes in Chapters 9 and 10 of the Constitution. A follow up meeting would be scheduled.
The meeting was adjourned.
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