Amended Operational Guidelines for the Interim Joint Committee on Scrutiny of Delegated Legislation: presentation by Table Staff; Briefing on the Housing Development Agency Regulations, 2011

Meeting report

The Chairperson said that the meeting was to focus on the finalisation of the Operational Guidelines for the Committee, the presentation of a briefing note by the Parliamentary Legal Adviser (PLA) on the Housing Development Agency Regulations and an update on the progress of the Committee’s study tour to India and Australia. These issues had been work in progress and it was time for the Committee to take final steps. The Committee had to agree that the operational Guidelines be submitted to the Rules Committee after amendments by the National Assembly (NA) and the National Council of Provinces (NCOP).

Ms Hajira Sali who had been appointed as the new secretary to the committee was introduced to the members.

Briefing on Committee Operational Guidelines by the National Assembly and National Council of Provinces
In the briefing from the table staff Advocate Modibedi Phindela from the NCOP Secretariat said that the operational guidelines had been examined by the NA and NCOP, and it was noticed that the majority of the Regulations related to delegating provisions. The view of the NA and the NCOP was that the operational guidelines could serve the Committee and unlike in the initial proposal where the process of adoption was to have the rules sent to the Programme Committee, the present proposal was that the guidelines should be submitted to the Joint Rules Committee which would adopt them. Once they were published they could be published on the Announcements, Tablings and Committees (ATC) of Parliament. The original rules had been adopted by the House as part of the founding Rules of the Committee but the Rules were left as flexible as possible so that the Committee could from time to time amend the Guidelines. The next meeting of the Joint Rules Committee was slated for the 4^th of September 2012 and the proposal of the Table Staff was that the Rules be presented to the Joint Rules Committee.

The Committee was reminded to consider the important issue of delegating provisions. The majority of the Guidelines dealt with delegating provisions. If the Committee had to consider delegating provisions, then it might be overburdened because almost every Bill which came to Parliament contained delegating provisions. In the past, there had been an attempt to draw a distinction between delegating provisions and delegated legislation. Delegating provisions were provisions that were contained in a Bill before a Committee and delegated legislation were the Regulations that come to Parliament requiring approval by the NA and NCOP. It was important for the Committee to consider whether it still wanted to burden itself with considering delegating provisions. The reason for scrutiny was to attempt to control the power that had been given to the executive.

Discussion
The Chairperson reminded Members that the discussion was to focus on whether the Committee was satisfied with the Rules and to have them forwarded to the House. The other issue was whether the Committee wanted to take up the consideration of delegating provisions or to remove it from the original Rules and Guidelines.

Mr A Gaum (ANC) said that the Operational Guidelines only dealt with delegating provisions and did not indicate how the Committee was to deal with Regulations which were already made. It had to be clear on the procedures and the line of action by the Committee.

Adv Phindela replied that items 7 and 10 of the Operational Guidelines refer to delegated legislation. These provisions dealt with the Regulations which were already made.

Mr N Koornhof (COPE) said that it was difficult to operate with all the regulating powers within a specific and tight time frame. It was also going to be difficult for the Committee to scrutinize legislation done by another Committee on whether that regulation is within the ambit of the legislative framework. There was going to be huge opposition from other Committees.

The Chairperson asked if Mr Koornhof’s point was that there was no need for the Committee.

Mr Koornhof replied that he was suggesting that the Committee should stick to the original mandate of avoiding any constitutional clashes when legislation was being passed in Parliament. There could be consultation but not the complete take over from other communities.

Ms B Mncube (ANC; Gauteng) said that the Committee had a mandate to fulfill and the sentiments which could be expressed by other Committees were important but the Committee still had to fulfill its mandate.

The Chairperson said that the Committee had gone past the point raised by Mr Koornhof. The resolutions taken by the House with respect to the establishment of the Committee actually handled the issues he was raising. The important thing was to consider how realistic it was for the committee to be able to execute the mandate and to decide if the Committee wanted to try to do everything but have difficulties in doing so but take its duties gradually and succeed. The Chairperson also said that it was important to have a clause in the guidelines which provided for a final arbiter in the event of a deadlock between the Committee and other committees.

Adv Phindela said that it was important to identify that the role of the Committee was only advisory or that there was more to the work of the Committee than providing advice. After the study tour to Australia and India, there was certainly going to be some more insight on how the operation of the Committee could be carried forward. In other democratic countries, the role of a scrutiny on delegated legislation committee was limited to scrutinizing delegated legislation and reporting to the asssembly. It was also important for the Committee to note that in other democracies, Committees of this nature did not consider the policy considerations of legislation but the manner and form of delegated legislation.  

Ms S Kalyan (DA) asked if the Committee was an open committee which was open to the public and other committee and could be reported on by the Parliamentary Monitoring Group (PMG).

Adv Phindela replied that the Committee was an open committee but like every other committee of Parliament, it could be held in camera when dealing with very sensitive issues. 

The Committee agreed that the arbiter should be the House and that there was no need to include that clause in the guidelines. The Committee also agreed that the decision to proceed with the guidelines be put on hold till the committee returned from the study trip to India and Australia.

Update on the progress with the study tour
The Committee received an update on the progress with the logistics and preparations for the study tour to India and Australia. The proposed date for the tour was from the 21 October to 02 November 2012. The application for the tour had been submitted to the NCOP for approval. It had not yet been approved. After the approval by the NCOP, it was also going to be submitted to the NA for approval.

Briefing on the Housing Development Agency Regulations, 2011
The Committee was briefed by Advocate Frankie Jenkins, Senior Parliamentary Legal Adviser, on the Housing Development Agency Regulations 2011 which had been submitted by the Minister of Human Settlement to the National Assembly.

Adv Jenkins said that there was some confusion with regards to the empowering provision of the regulations. Was it done in terms of Section 32(1) or Sub- Section102 of Section 32 of the Housing Development Agency Act, 2008? It was important because Section 32(1) was specific on the types of regulations to be made.

According to Adv Jenkins, the draft regulations did not raise any provisions imposing levies, taxes or duties and the appeared to comply with the procedural aspects pertaining to the draft regulations in so far as Parliament was being consulted in the process. The regulations also did not impinge on the jurisdiction of the courts and there was no provision for retrospective operation of the draft regulations. The draft regulations conformed to the objects of the Act and the provisions of the draft regulation generally did not appear to make unusual use of powers conferred by the Act.

Adv Jenkins said that the draft regulations however had certain unusual use of powers. In sub-section 2, the draft regulations impose criminal sanctions for failure to comply with the regulations. The Act or any other legislation did not authorize the Minister to create criminal sanctions in respect of issues that had to be regulated through regulations.  The numbering after draft regulation 9 required correction. The draft regulations did not trespass on personal rights and liberties including those set out in the Bill of Rights or in a manner inconsistent with the Constitution.

Discussion
Mr D Bloem (COPE; Free State) asked how the Minister arrived at the issues in the regulations which were not constitutional and not authorised by the law in terms of the criminalising of compliance.

The Chairperson replied that the point made by the Advocate was that the Act did not give the Minister such powers so it was the place of the Committee to identify such a lapse.

The meeting was adjourned.