Procedural matters: Parliamentary Law Advisor's briefing; Proposals of NCOP: State Law Advisor's briefing

Ad Hoc Committee on Protection of State Information Bill (NA)

14 March 2013
Chairperson: Mr C Burgess (ANC)
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Meeting Summary

The Senior Parliamentary Legal Advisors had been asked to brief the Committee on the applicable Parliamentary Rules when a Bill was referred back to the NA, after having been debated upon by the NCOP when changes were recommended by that House. He summarised Rule 270 and noted that the Committee could accept or reject the proposals. It also had a very limited ability to change wording, but only when strictly relevant to the amendments that had been proposed by the NCOP. Where it appeared that the NCOP had made amendments but had not managed, in that wording, to address the mischief in quite the right way, it was possible to propose another amendment. However, anything done by the NA at this stage must not affect the classification of the Bill. The content of Joint Rule 161 was also summarised. 

Members were asked to confine their questions to seeking clarity. The IFP Member said that Parliament should be bound firstly by the Constitution, and submitted that there was an inconsistency in that section 75 of the Constitution enjoined the Committee to reconsider “the Bill”, but the Rules were confining the Committee to only a limited consideration of the proposals by the NCOP. An ANC member countered that whatever the decision on that point, it should not impact on the current work of the Committee. The DA and IFP suggested that the Parliamentary Legal Advisor be asked to look into that point and the constitutionality of Rule 270. The Chairperson ruled against further comment from the DA and IFP Members when they started to go into the merits of the Bill, in particular the tagging, and also the interpretation of clause 38 amendments, but assured them that they would be given time to raise the issues at an appropriate time. It was suggested that the Chairperson of the NCOP Committee may need to be called to clarify the reasoning behind some of the proposed amendments, and the Committee agreed that this was already provided for in the Rules.

The Office of the Chief State Law Advisor gave a presentation setting out the version of selected clauses as agreed to by the NA, the proposals by the NCOP, and the way that these clauses would appear if the amendments were accepted. Due to the very short notice given to this Office, no reasons for changes were included at this stage but they could be provided later. No questions were raised. The Committee would probably only be able to meet again in the week commencing 25 February.

Meeting report

Parliamentary Law Advisor’s briefing on the Rules and procedure
Mr Ntuthuzelo Vanara, Senior Parliamentary Legal Adviser, had been asked to brief the Committee on the National Assembly Rules applicable to Bills that were returned from the National Council of Provinces (NCOP) to the National Assembly (NA), with proposals for amendments.

He noted that the applicable Rule was NA Rule 270. Essentially, this Rule and subRules set out that it was possible for the Committee to accept or reject the proposals from the NCOP. The Committee could make proposals on the wording, as set out in Rule 270(2)(b), but this was a limited ability as it “may not propose any amendment which is not strictly relevant to” the amendments proposed by the NCOP. Furthermore, the proposals must meet certain criteria as set out in subrule 270(2)(d). Anything done by the NA at this stage must not affect the classification of the Bill, or render it procedurally or constitutionally out of order with Joint Rule 161.

The reason for this was that it was obviously not desirable, at this stage of the proceedings, to introduce any amendments that would change the classification. If the Bill became a section 76 Bill through the changes, it would then have to be reintroduced as a section 76 Bill from scratch to avoid any inconsistency in the procedure.

Mr Vanara briefly outlined the content of Joint Rule 161, which outlined the circumstances in which bills would be regarded as constitutionally out of order. These would include a bill being incorrectly introduced by an unauthorised person or committee, being incorrectly introduced in the wrong house, s a Constitutional Amendment Bill that also contained provisions unconnected with the constitutional amendments, if the procedures set out for a bill introduced under section 74(5) were not complied with, or if it was in breach of section 77(2). Joint Rule 161(2) set out the circumstances in which a bill may be procedurally out of order.

Mr Vanara summarised that the Committee could still accept or reject the proposals from the NCOP. In a case where the Committee might feel that there was agreement on the proposal, in principle, but where it also felt that the proposal did not achieve the desired outcome, in the sense that it did not sufficiently address the mischief, the NA Committee could then propose another amendment.

The Chairperson asked Members to confine their questions, at this point, to questions seeking clarity only. He did not wish to hear more legal opinions from Members, nor to debate the specifics of the Bill.

Dr M Oriani-Ambrosini (IFP) said that Rule 270(2)(b) was not strictly relevant. He noted that the Committee and Parliament must interpret the Rules in terms of the Constitution, and not the other way around. Section 75 (1)(c) said that if the NCOP had passed the Bill subject to amendments, the NA must “reconsider the Bill” (which meant the entire Bill) and may pass the Bill again, either with or without amendments, or decide not to proceed with the Bill. The Committee could not, in his view, be restricted by the Rules to consideration of only the amendments proposed by the NCOP. He said that if the Constitution had given a power to the Committee, then the Rules could not take it away. He urged that the Rules must be interpreted consistently with the Constitution.

Dr Oriani-Ambrosini also agreed that the timing was important, otherwise Parliament may have to withdraw, reintroduce the Bill and then start the whole process again. Timing was something with which all committees were seized.

Dr Oriani-Ambrosini asked how this could be a section 75 Bill, when it dealt with provincial archives – which were a provincial competence.

The Chairperson called Dr Oriani-Ambrosini to order and said that these comments were now getting to the substance of the Bill, and this was also something that had been fully raised and debated in the first round of the process. If this Committee was wrong on the point, then Members would be given another chance to debate it, and Dr Oriani-Ambrosini should leave that point now and revisit it at the appropriate time.

Dr Oriani-Ambrosini said he would abide by that ruling but wanted comment on his first point.

Mr Vanara answered that Dr Oriani-Ambrosini was correct when he noted that section 44(4) of the Constitution enjoined Parliament, when exercising legislative authority, to do so in accordance with the Constitution. He was also correct that the Rules must be consistent with the Constitution. However, he had been asked by this Committee to look specifically into the issue of Rule 270 and what it actually stated, and not to the constitutionality of that Rule. He could only speak today to the issues that he had thoroughly researched but was willing to look into the constitutionality if the Committee did want him to do so.

Ms M Smuts (DA) thought that an opinion should be sought on Dr Oriani-Ambrosini’s point.

Ms Smuts said that because Dr Oriani-Ambrosini had raised the tagging issue, she wanted to re-state, for the record, that the DA had been unhappy with the tagging from the start of the process. The main Constitutional objection to the Bill on this point remained unresolved. Provincial Archives were within the exclusive legislative competence of provinces. The Western Cape Legislature had passed its own Act. The records were supposed to be under national control, but everything at the moment was classified by, and the record keeping was governed by, the Intelligence Services. This Bill also tried to keep the Minimum Information Security Standards (MISS) provisions for record keeping in place, which it had done by creating a category for “valuable information”.

Ms F Mentor (ANC) raised a point of order, saying that the Chairperson had asked that Members merely ask questions of the Parliamentary Legal Advisors for clarity. These statements were entering into discussions.

The Chairperson agreed, and told Ms Smuts that he had stopped Dr Oriani-Ambrosi from proceeding with his points.

Ms Smuts said that she had merely stated this as a background to the question she would now ask. She reiterated that the Bill ought to be a section 76 Bill. There was a difference of legal opinion and the issue was not dealt with anywhere under rule 270. She would not raise the points now but would take them up later.

Mr L Landers (ANC) asked why Ms Smuts was being allowed to make such a lengthy speech.

The Chairperson called the meeting to order and asked that only questions of clarity be posed.

Ms Smuts said Mr Vanara had given a useful guideline on what rule 270 meant. She asked if clause 38 (the new clause 36 in the B-version, which related to hostile activity) was a clause where the NCOP did not appear to have achieved its own purposes, and where consequential changes may then be possible. Here, the NCOP had stated that the offence would be punishable by a period of imprisonment of no more than 20 years. The concept of negligence had been deleted throughout, and she started to read out the wording.

Mr M Sonto (ANC) raised a point of order and said that the reason why Dr Oriani-Ambrosini was stopped was that he was delving into the merits and specifics. What Ms Smuts was now raising had nothing to do with the input given by Mr Vanara. The Committee should not be considering the content of the Bill at this point, as it could move to that when the time was right.

Ms Mentor asked that the questions be limited to the brief.

The Chairperson stopped Ms Smuts and said that the points of order as raised by Mr Sonto and Ms Mentor were well taken. Ms Smuts was now asking Mr Vanara to express an opinion on something that was the work of the Committee. He again asked that only questions seeking clarity be raised at this stage. He assured Members that when the appropriate time came to debate the issues and content, he would give them an adequate chance. The Committee could obtain a legal opinion on any issues.

Ms Smuts argued that she was not in fact dealing with the substance of the Bill. She had asked if the NCOP amendments to clause 38 were an example of amendments that did not achieve the purpose. The NCOP had made certain changes to subclause (a) but had not carried them through consistently.

The Chairperson said that this was indeed asking Mr Vanara for an opinion, and this was a point on which the Committee had to decide. It may well be a perfect illustration of the point that Mr Vanara had indicated. However, it was not for him to comment on it. It would be put to the Committee, and if the Committee did agree that there appeared to be inconsistencies, or had a problem with the clause, then Mr Vanara’s opinion on that point could be sought. He said that if he allowed Ms Smuts’s question at this point, then it was opening the floor to any party raising issues and examples.

The Chairperson noted that Mr Vanara was essentially saying that this Bill was to be regarded as the same Bill that the NA had passed, with proposals being made by the NCOP. The Committee now had to decide whether to change the Bill, in line with the proposals of the NCOP. If the proposals were accepted, then a C-version of the Bill would be drawn. However, it should not be taken for granted that the process was quite that simple. He was trying to be helpful and move matters along. He again assured Members that they would be given an opportunity to raise the arguments.

Mr L Landers (ANC) asked if Mr Vanara had been asked to look at Rule 270(2)(b), in relation to section 75, and whether it met the requirements of that rule.

Ms Mentor said that Members had every right to ask the legal advisors to look to the constitutionality of the Rules. However, she said that if this Committee decided that the Rules were out of line, it would bring this to the attention of the NA Rules Committee. Any misalignment of the Rules fell to that Committee to deal with the issues. The question was to what extent a finding to this effect might affect what this Committee was asked to do, which was to look into the amendments to the Bill.

Dr Oriani-Ambrosini said that he sat on the Rules Committee and was engaged with the redrafting. In all cases, the Rules Committee received feedback on the experiences of other committees – either from the point of view of constitutionality or practicality. In this venue, this Committee could focus on the questions, and if it reached a decision that the Rules needed to be changed, it could refer the matter on to the Rules Committee. This was the first time that the Committee was faced with this issue, and when it reached clarity, it would either kill the issue or open it up again. If there was a problem it could be fixed fast and avoid another possible flaw on constitutionality.

Ms Mentor respected the Chairperson’s wish to rule on this point and would not raise any further arguments, but merely wanted to note that a change to the Rules may carry other implications.

Mr Landers said that all that was needed was clarity on how to proceed. The Committee had received the set of proposals and either had to reject them or approve them. Ms Smuts had pointed out previously that in Rule 270(2)(b) there was scope for additional amendments, and Mr Vanara had confirmed that. Dr Oriani-Ambrosini was saying that what was in the Constitution negated that. The question was whether to follow the Rules or the Constitution. The point was not whether Rule changes were needed, but whether the Committee was to proceed under section 75(1)(c), or under Rule 270(2)(b).

The Chairperson made the point that the Rule had not been held unconstitutional to date. The Committee had been requested, by a resolution of the House, to proceed with certain work. Until such time as it was told not to, the work must continue. He did not necessarily agree with the interpretation of Dr Oriani-Ambrosini and did not think that there would be a unconstitutional process. If anyone considered this unconstitutional, it could be raised at the appropriate forum. At the end of the process, this Committee could ask that the NA Rules Committee look at the issue. However, at this stage it would be wrong procedure to stop considering the matters, after having been ordered by Parliament to continue. The issues raised could be borne in mind.

Ms Smuts said that the DA would continue with the process, but on the understanding that a further opinion be requested from Mr Vanara on the points raised.

Ms Smuts noted that this Committee could consult with the Chairperson of the NCOP Committee or NCOP. She thought that insight and input on a few clauses was needed, and would appreciate it if the NCOP Committee could, in particular, be called in to discuss clause 38 and clarify what its thinking had been. This Committee then might be able to make proposals to help the NCOP achieve its own purpose.

Mr Vanara confirmed that this was correct, and that the Committee or NCOP Chairperson could be asked to come in. this was what was meant by the Committee applying itself to the proposals.

NCOP proposals: Office of the Chief State Law Advisor briefing
Mr Enver Daniels, Chief State Law Advisor, explained that he had been informed on the previous day that the Office of the Chief State Law Advisor would be asked to do a presentation in the following week. However, late last night this instruction was amended, and he was told that a presentation would be expected today. It was very short notice, and whilst he had managed to prepare a presentation setting out the main changes being proposed, he could give a fuller presentation in the following week that detailed the reasons for the changes.

Dr Oriani-Ambrosini thought that if a better presentation could be ready in the following week it might be better for the Committee to wait for that. In particular it would be useful to know what the thinking of the NCOP Committee was to interrogate the process.

Ms A van Wyk (ANC) said that this was not the first time that a Bill had been referred back to the NA from the NCOP with amendments, and she could not quite understand why so many questions were being raised.

Mr Landers reiterated that the Chairperson of the NCOP Committee could, in terms of the Rules, be asked to address this Committee.

The Chairperson said that the Committee would have to take that decision. Ms Smuts had asked if it could be done, and it could, but the Committee must ultimately decide whether it was necessary to call in the Chairperson of the NCOP Committee, or to consult.

Mr Landers said that the question of “their intent” had been raised, and the only way that this Committee would be able to ascertain that was through a meeting.

The Chairperson reiterated that when the time was right, this Committee would make a proposal, debate it and decide. He did not think the intention needed to be established right now. He asked Mr Daniels to proceed.

Mr Daniels noted that his presentation set out the original version of the Bill as passed by the NA, then the proposed amendments, and then the clauses as they would look should the proposals be accepted. No reasons would be advanced at this stage.

He then proceeded to summarise the changes proposed to each of the relevant clauses (see attached document for full details of original wording, proposals and resultant changes)

He noted changes to the Long Title, and the Preamble (to add in a reference to the fact that access to information was a cornerstone of the democracy and a reference to section 36 of the Constitution). Proposals were made under the definitions clauses, for changes to the definition of classified information, a new definition of espionage, changes to the definition for the head of an organ of state, the insertion of “state” before “information”, and the addition of a definition for “sensitive information”.

Ms Smuts questioned why the changes had been made.

The Chairperson said that this was not being discussed in this presentation, but could stand over for another day.

Ms Smuts suggested that the Committee may as well then just read the amendments for itself and it was not necessary that Mr Daniels give this presentation.

Mr Daniels said that this was the way in which his Office normally presented Bills at other committees, and he would abide by the Chairperson’s decision whether he should proceed.

The Chairperson asked that he continue.

Mr Daniels continued with the definitions clauses, noting that “valuable information” was also to be changed.

The amendment to subclause 1(3) added further wording referring to the need to protect and classify certain state information in terms of this Act.

There was a proposal that clause 1(4) was to be deleted. However, new subclauses (4) and (5) were being added.

In respect of clause 3, subclause (1) was to be deleted and (2) moved up to become (1). Cabinet was to be added to the list of entities to whom the Act automatically applied. It was proposed that a municipality or municipal entity could not make application to have the Act apply to it, and in the case of other entities that made this application, approval of Parliament would be required. Changes were also made to 3(2) and a reference to “unlawful” alteration, destruction or loss was made in clause 3(2).

The NCOP had proposed that clauses 4 and 5 be deleted, and so all the subsequent clauses had been renumbered. He would still refer to the old (original) numbering.

In clause 6 he noted that the content of the former clauses 4 and 5 had been added into clause 6, and there were changes to subclause (g). Clause 7(1) had a new subclause (ii) added and (iii) was changed by insertion of “conditions for”.

There were several amendments set out for Chapter 5, to clauses 13(3), (6) and (7). There were minor proposals for clause 15. There were proposals to amend time periods named in clause 19, and substitution of wording for subclauses (3)(a)(i) and (6). In clause 22, and 24, there was a proposal that the reference to “National Assembly” be changed to “Parliament”. In clause 23, there were proposals on subclause (e). There was also a specific reference to the Joint Standing Committee on Intelligence in clause 24. Clause 29 also contained similar replacements of the words ‘National Assembly” with “Parliament”.

In Chapter 11, the words “or ought reasonably to have known” were being deleted in clauses 37(1),(2) and (3). A reference to “to the detriment of the national security of the Republic” was being added to the end of each of the subclauses.

Clause 38 contained alternations in subclauses (1)(a) and (b), and in subclauses (2)(a) and (b), and again in subclauses (3)(a) and (b), deleting the words “or ought reasonably to have know”. The words “that would” were being added prior to the reference to “prejudice”.

He set out the proposed changes to clause 43, which were largely additions of words. There was reference also to the Protected Disclosures Act and new wording for subclause (c). In clause 47(1)(c) there were also now references to the Protected Disclosures Act. Clause 49 was to be deleted. In the original clause 54, the wording of “may” to “must” in relation to regulations was noted. A new clause 54 (1) was inserted. Some consequential amendments were noted.

Ms Smuts asked why Mr Daniels was referring to what “we “did.

Mr Daniels said that this was because the Office of the Chief State Law Advisor had effected the changes, on instructions.

The Chairperson noted that the Committee would not be able to meet in the following week. He could apply for times to meet during the Committee Week, commencing 25 March, but he needed to get information from Members as to when they would be available.

The meeting was adjourned.


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