The Interim Committee on Scrutiny of Delegated Legislation considered the composition of the quorum that would be required for decisions to be taken as well as the Guidelines under which it would operate. For purposes of a quorum the Committee was given the choice between three National Council of Provinces Members and five National Assembly Members or a majority. The Committee settled for the former option so as to ensure that both Houses were present when decisions were taken. During the discussion for the consideration of the Guidelines the Committee wanted to know why Guidelines were chosen as opposed to Rules. The Committee also wanted to know what had informed the proposed three week period in which the Committee had to finalise its scrutiny on delegated legislation. The Committee amended the Rules so as to allow for an extension should the three week period expire before its work was complete. The Committee also requested that officials from both the National Council of Provinces and the National Assembly should work together on setting up the Committee as well as the Guidelines.
Mr Smith asked the Committee to consider the minutes of 16 May 2012. There were no amendments and the minutes were adopted unanimously. The issue of the quorum should be adopted and approved by the Committee.
Presentation: Proposal for Adjustment of Quorum Requirements and Decision Making Process of the Interim Joint Committee on Scrutiny of Delegated Legislation
Ms Marina Griebenow, Senior Procedural Adviser from the Nation al Assembly Table, said that the Rules that governed the Committtee were adopted by the National Assembly (NA) and the National Council of Provinces (NCOP) last year. On the issue of a quorum, the Committee was governed by the general rule that covered joint Committees. Due to the fact that the Committee had a NA component as well as a NCOP component there had to be a majority of three NCOP Members and five NA Members for the purposes of a quorum. There was a need to have a quorum for decision making but not sitting. The decision making process was governed by Rule 146 which pertained to joint committees appointed by a joint resolution of the NA and NCOP. In the past there have been difficulties with joint committees meeting and functioning properly. The Committee could alter the quorum requirements to mirror those that used to be used for the joint monitoring committees. Under these requirements the majority would not have to have a certain number of NCOP Members or NA Members. When it came to the decision making process a question would be decided by the majority of Members present. In order for this proposal to be approved, the Chief Whip of the NA and the NCOP from the majority party have to be approached.
Mr Smith said that as things stood the Committee could not take a decision unless there were three NCOP Members and five NCOP Members.
Mr Gaum said that the Committee should approve the proposal.
Ms B Ngcube (ANC) said that she preferred the majority route.
Ms N Ntwanambi (ANC) differed from Ms Ngcube and said that at times decisions were taken without the presence of Members from the NCOP. The three NCOP Members and five NA Members should be the preferred quorum.
Ms S Van der Merwe (ANC) said that she agreed with Ms Ntwanambi.
Other Members agreed with the proposal of three NCOP Members and five NA Members.
Mr Smith said that the Committee would now consider the Guidelines.
Ms Griebenow said that the Guidelines covered the referral of matters to the Committee and the relationship between NA and NCOP Committees. Due to the fact that this was a new structure permanent Rules should be avoided and Guidelines adopted instead. The proposal was that the Joint Tagging Mechanism (JTM) should be tasked with ascertaining whether a Bill had delegating provisions and refer it to the relevant Committee as well as this Committee. The Programme Committee met regularly to receive briefs on the progress of Bills; progress made by the Committee could be added as well. If a particular Committee made amendments to delegating provisions then the Committee had to know about this. The Committee also had to know how the delegating provision would be amended by the Committee. Where there was an amendment of delegating provisions the relevant Committee dealing with the Bill had to inform the House Chairperson and then this Committee, the Programme Committee also had to be informed. The proposed Guidelines would affect the work of NA Committees and this may not go down well. It was proposed that where there was an intention for delegating provisions to be amended then the Committee had to be informed three weeks in advance so that it could conclude its work in sufficient time. If this Committee did not finalise its work within this three week period then the relevant NCOP or NA Committee could go ahead and finalise the Bill. In a report of a NCOP or NA Committee there had to be mention of whether or not it had considered the recommendations of this Committee. A further Guideline had been inserted which provided that the Committee may decide to publish its findings on the delegating provisions for consideration by the House. This provision was for really serious cases where this Committee may feel that a matter had to be escalated to the House. The Guidelines were an interim measure as the Committee was being set up. Should the Committee want to use the Guidelines then the Chairperson would have to approach their respective presiding officers to place this before the Programme Committee. If the Programme Committee agreed then the Guidelines could be published in the Announcements, Tablings and Committees.
Mr Gaum asked for an explanation on the difference between the Guidelines and the Rules. What was the status of Guidelines? Why was there the requirement that notification should be given to the House Chairperson as well as the Programme Committee?
Ms S Kaylan (DA) asked what informed the decision to allow for a three week period, was this realistic?
Ms Ntwanambi asked what was the effect of this process of setting up the Committee on the Rules of both Houses as well as the Joint Rules.
Ms Ncube said that the NA did not have a timeline for dealing with Bills unlike the NCOP which was always given six weeks. How would this impact on the work of the Committee?
Mr N Koornhoff (COPE) said that according to his understanding any Money Bill would not be scrutinised by the Committee.
Ms Griebenow replied in the affirmative.
Mr Smith said that he would answer some of the questions. The approach of the Committee in terms of what it was doing was that a base set of Guidelines should be established and the current Guidelines were the minimum requirement for the Committee to operate. The Guidelines amounted to the Committee’s recommendations. Rules would only come into play once the Committee was permanent and the Guidelines were adopted by the House. It had been agreed that the Committee would meet fortnightly and the three week period seemed desirable because the Committee would have met at least once during this period. The Committee could not prompt the process of scrutinising delegated legislation from the onset because this would be forcing the relevant NA Committee to deal with delegated legislation first, the Committee could also not wait too long as it would miss the opportunity to make inputs and recommendations.
Ms Griebenow added that it was difficult to adopt permanent rules as this was an interim structure. The Guidelines went as far as possible to not impact on the current Rules governing the reporting of the Committees. Once the Committee was permanent then there would be proper Rules governing it. The status of this currently was that the Guidelines would be as adopted by the Programme Committee. A House Chairperson would be informed of a NA Committee’s intention to amend delegating provisions. The three week period was a notice to the Programme Committee of the intention of a NA Committee to finalise a Bill.
Mr Smith asked which three week period was being referred to, was it for the NA or NCOP?
Ms Griebenow said that the period referred to depended on whether the Bill was introduced in the NA or NCOP. The time frames were much clearer in the NCOP than the NA.
Ms Van der Merwe said that there should be provision for an extension should there be any delays and the Committee was unable to finish its work within the three week period. It was foreseeable that there would be disputes, some Members and individual parties may have different views and approaches to legislation compared to that of the Committee.
Mr Smith agreed on the inclusion of an extension provision.
Adv Modibedi Phindela , Secretary to the NCOP, said that although these were Guidelines they affected the NCOP, Joint Rules and the NA Rules. There were provisions In the Guidelines that effectively amendment the current NCOP Rules.
Mr Smith said that Adv Modibedi Phindela was correct. It was envisaged that there would be many changes; currently the intention was for all stakeholders to have an input on the Guidelines.
Ms Boroto said that the NA table that was working on this should have somebody who was from the NCOP sit down and work with it.
Ms Ngcube asked if the criteria was embedded in the Guidelines.
Mr Smith said that the criteria was adopted on 22 September 2011.
Mr H Groenewald (DA) asked if there was a specific date and time included in the Guidelines on when the Committee was supposed to meet.
Mr Bloem asked what the time frames were.
Mr Smith said that Ms Griebenow and a nominee from the NCOP would finalise the Guidelines during the recess period. The Committee had to start working as soon as possible and the support staff should be appointed as soon as possible,
Ms Boroto said that the Committee would work as a Joint Committee and not two separate houses. Its work should start flowing during the third term and all administrative staff must have been appointed by then.
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