Joint Subcommittee on Delegated Legislation: deliberations

The following minutes were taken by National Assembly Table Staff Member, Ms Marina Griebenow.

DRAFT MINUTES OF PROCEEDINGS
Tuesday, 30 April 2002 (09:53) E3.05

Present:
National Assembly
Masutha, M T (Chairperson)
Schmidt, H C
Rajbally, S
National Council of Provinces
Lubidla, E N
Matthee, P A

Staff in attendance:
Borien, J (NCOP Procedural Services); Griebenow, M (NA Table); Tsholetsane, M (Parliamentary Law Adviser).

1. Opening and welcome (Agenda item 1)

Adv Masutha, as chairperson, opened the meeting at 09:53.

2. Apologies (Agenda item 2)

Apologies were tendered on behalf of Messrs Y I Carrim, I J Pretorius, J T Maseka and M E Surty, as well as Ms L Jacobus and Mrs G N M Pandor.

3. Consideration of agenda (Agenda item 3)

The agenda, as presented, was adopted.

Consideration of minutes of meeting on 20-03-2002 (Agenda item 4)

On the proposal of Adv Schmidt, it was
AGREED: That the consideration of the minutes would stand over until a quorum was present.

Miss Rajbally expressed concern about the scheduling of committee meetings. She said that three meetings had been scheduled simultaneously that morning, which made it particularly difficult for the smaller parties to attend, while the larger parties did not even send alternates if their permanent members could not attend.

Adv Masutha pointed out that the Subcommittee had tried, in its programme for the second term, rather to schedule meetings on a Wednesday. However, as the following day was a public holiday and he would be in New York the following week, the Subcommittee had to meet that day to consider its progress report to the meeting of the Joint Rules Committee on 7 May.

Adv Schmidt proposed that the Subcommittee should meet during lunchtime to secure a larger attendance, as many members were committed to other committees. Mr Matthee further suggested that Adv Masutha could meet with the chairperson of the Ad hoc Committee on Oversight and Accountability, Ms F I Chohan-Khota, to arrange for the meetings of the subcommittees in question to alternate.

After a discussion, it was
NOTED: That Adv Masutha would take members' proposals in respect of Subcommittee meetings forward when he discussed a new date for the workshop on delegated legislation with the new Chairperson of Committees, Mr G Q M Doidge.

Progress report to Joint Rules Committee (Agenda item 6)

Adv Masutha said that the workshop on delegated legislation had been intended to enable the Subcommittee to map a way forward on its substantive work and report on that to the Joint Rules Committee. As the workshop had been postponed, the work of the Subcommittee was being regarded as "work in progress". The report to the Joint Rules Committee would therefore cover the process that had been followed rather than the substantive issues that had been discussed to date.

Ms Borien presented the document "Draft progress report to Joint Rules Committee".

Adv Schmidt suggested that the draft report did not cover fully the work that had been done by the Subcommittee to date and should include timeframes on when the Subcommittee aimed to complete the different stages of its deliberations.

Adv Masutha said in a planning session it had been agreed to include the fact that the Subcommittee intended to have its workshop and finalise an interim report before the meeting of the Joint Rules Committee in the third term, the report to include proposals for an interim scrutiny mechanism and issues for political decision. The feedback from political parties would then enable the Subcommittee to produce a final report. He said that the Subcommittee could, for example, conclude in its interim report that it was necessary further to investigate the scrutiny mechanisms in other jurisdictions and how they function in practice, which would entail a contingent going to those juridictions.

Adv Masutha mentioned that he was reluctant to include the documents produced by the Subcommittee in the report to the Joint Rules Committee, as it could open up discussion on the substantive issues. He said that he wanted the Subcommittee first to exhaust those issues before presenting them to the Joint Rules Committee in the interim report.

On the proposal of Adv Masutha, it was
AGREED: That the progress report would be adapted to reflect the views expressed.

6. Discussion on key documents continued (Agenda item 7)

Adv Masutha explained that the Subcommittee was currently working with three documents that were being developed as the deliberations progressed, namely The scrutiny of delegated legislation by Parliament (Annexure 1), Issues that require political decision (Annexure 2) and Proposals for an interim scrutiny mechanism (Annexure 3).

Adv Masutha reported that the ANC study group had had a workshop at which it looked at different aspects of the Rules, including delegated legislation. Certain ideas had surfaced at the workshop, but a formal document had not yet been prepared for presentation to the other parties. He emphasised that members of the Subcommittee had to keep their parties abreast of what transpired at the meetings.

He said among the issues that had been noted at the workshop was the question of whether the norms and standards for scrutiny should be set out in legislation, Rules or guidelines (Annexure 1, page 5). With regard to it being set out in legislation, the question was how realistic it would be to produce legislation to establish an interim mechanism. The view seemed to be that, in the interim, one would have to look more towards the Rules of Parliament, especially as the Subcommittee was considering using portfolio and select committees to perform the scrutiny function.

With regard to using the portfolio and select committees to perform the scrutiny function in the interim, there was a counterview that it was not necessarily the ideal route because of the workload of those committees and the need for specialised skills and dedicated focus, particularly given the complexity of the criteria that inform the scrutiny process.

Adv Masutha said that there was not support for the automatic lapsing of regulations. It was generally felt that it would be an unworkable approach, particularly at present. Thought was given to putting a mechanism in place to revisit some of the regulations, particularly those that had been passed before the Constitution came into operation and were still in force. Adv Masutha proposed that it should be checked with the Department of Justice and Constitutional Development whether there had been any initiative to scrutinise legislation for constitutionality, including delegated legislation, and to recommend changes. If there were such a report, it could become part of the Subcommittee's deliberations.

Some of the participants in the workshop thought that the idea of a separate scrutiny comittee, supported by a retired professor, could be explored as an interim mechanism, whereas the Subcommittee had thought it could be mooted as a long-term mechanism after the Subcommittee had seen how such mechanisms work elsewhere and how effective and appropriate it would be for the South African scenario. The example of Scopa was mentioned, which looked at financial reports from the Auditor-General, irrespective of which department was involved. Suggestions were made that such a committee could be attached to the Joint Rules Committee, though it would need appropriate support. The Subcommittee therefore had to revisit the idea of establishing a scrutiny committee, both as an interim and a long-term measure.

The idea that only regulations should be scrutinised in the interim received a lot of popular support at the workshop. Other bodies that drafted delegated legislation would ordinarily fall within particular portfolios - Icasa would, for example, fall under Communications - and such delegated legislation had to obtain the approval of the Minister concerned before it became law. The Minister concerned exercised oversight over the statutory body. That mechanism could therefore be retained in so far as "secondary delegated legislation" was concerned. Parliament would then concern itself with "primary delegated legislation", such as regulations.

On the proposal of Adv Masutha, it was
AGREED: That -
the law adviser, in the context of augmenting the existing document, would further look at how oversight by the executive of "secondary delegated legislation" was a standard provision in all legislation providing for delegated legislation; and
the Subcommittee would then look at whether it was necessary to pass legislation that would standardise the process of scrutinising delegated legislation.

Adv Masutha said that it was the task of the Subcommittee to determine whether this was, indeed, the best route to take. It was up to the Subcommittee to make recommendations, both in the short term and in the long term.

Some scepticism had been expressed at the ANC workshop about the approval of regulations by Parliament within certain timeframes and having a uniform approach to that, as it was felt that the nature of certain regulations could require them to be implemented immediately. The matter could be approached in one of two ways, namely that regulations would come into operation once the committee had considered and approved them within a particular timeframe or they would come into operation within a particular timeframe and Parliament would have to make sure that it engaged them before that time elapsed. Adv Masutha said that these approaches would have to be considered by the Subcommittee to decide which would be more practical.

Adv Schmidt asked that the matters be followed up and the necessary documents be obtained and distributed to members of the Subcommittee, whereafter an informed discussion could take place.

Mr Matthee said that he had a problem with the executive overseeing itself, as in the case of Ministers scrutinising regulations made by statutory bodies. He said that all delegated legislation had to come to Parliament for scrutiny. He added that a lack of capacity, for example Parliament not having enough law advisers, should not be a deterrent to the institution performing its oversight function.

Adv Masutha said the question of how regulations were processed could possibly be looked at in the context of the workshop when the law advisers of the departments were present, for instance what kinds of norms and standards were being maintained with regard to the quality of regulations.

He said that perhaps Parliament's capacity to manage delegated legislation related to Parliament's ability to manage original legislation. When one scrutinised delegated legislation for its constitutionality or legality, one could find that one had to revisit the principal legislation. It was, however, a matter that needed to be discussed further, also at the workshop, and could be included in the interim and final report of the Subcommittee.

Adv Masutha said that the Subcommittee needed to consider whether the proposal for the interim scrutiny mechanism merely had to be augmented or whether the proposal should include giving two alternatives for consideration, the main options being that the scrutiny should be performed by portfolio and select committees or by a dedicated committee.

Miss Rajbally asked whether the Subcommittee should not first be looking at the various mechanisms in other jurisdictions. Adv Masutha said it was necessary to look at whether any other countries were using their portfolio and select committees to perform the scrutiny function or why some countries preferred it being done in a centralised manner by a dedicated committee. It was also necessary to determine how it worked in practice. If the Subcommittee did not have that information at its disposal, it was necessary for someone to go out and find out how it actually worked, for example how much delegated legislation such a committee was able to scrutinise.

Ms Tsholetsane said that the main document did include the fact that most jurisdictions had a specialist committee devoted to the scrutiny of delegated legislation (Annexure 1, page 7).

Miss Rajbally mentioned that Prof Corder had advised that a joint scrutiny committee would be the most suitable mechanism to carry out the scrutiny function.

Adv Schmidt said that he, without boasting in-depth knowledge of the subject, would propose a model similar to that of New Zealand (Annexure 1, page 10). He said if the committee had to look at delegated legislation that only affected the National Assembly, the Assembly component of the committee could sit. If it affected the provinces, the NCOP component could be involved. However, the composition of the committee should not be the overriding consideration. He said that he would prefer the portfolio and select committees to be involved, but it was not always practical. Even parliaments with more resources did not follow that route. It was also possible to use a separate committee as a referral committee, which meant that the portfolio and select committees could still be involved.

Adv Masutha said that the latter idea appeared to be a third option. He said in the ANC workshop reference was made to Scopa, which invites portfolio committees to its meetings when it scrutinises the accounts of the department to which the work of that portfolio committee relates.

Adv Masutha remarked on the Cabinet manual that New Zealand's state departments used for drafting delegated legislation. Ms Tsholetsane explained that the manual concerned procedural issues and had been added to Prof Corder's report as an annexure.

She said that when one looked at international trends, one had to look at what the committees in the various jurisdictions actually did. In Australia the committee that scrutinised delegated legislation had the additional function of acting as a watchdog over human rights. The motivation for proposing the portfolio and select committees as an interim scrutiny mechanism rather than a specialised committee had been to get around the problem of capacity.

Adv Masutha said what he had envisaged the Subcommittee proposing in the interim report was, amongst other things, that the notion of such a committee be taken back to political parties for further guidance. In the interim a process of thorough investigation would be undertaken during which the functioning of such a committee would be explored. The following issues could then be look at: the capacity of the committee and the support provided to it, how it should be constituted, whether its members should have specialised skills and whether it would look at the full spectrum of delegated legislation or monitor randomly. The outcome of that investigation would then be captured in the final report to the Joint Rules Committee.

The Subcommittee was aware of what and how much portfolio and select committees could do. The committee chairpersons could be engaged during the workshop and, based on their feedback, the Subcommittee could propose what limited scrutiny functions those committees could undertake. Technical issues such as reviewing the constitutionality of delegated legislation could possibly be excluded in the interim, as it could be a subject of dispute. The problem was how much weight was attached to a committee pronouncing on constitutionality when, in fact, it had been envisaged that the courts would have the ultimate say.
Adv Masutha explained that one wanted to understand how certain issues worked in practice in those jurisdictions where they had scrutiny mechanisms, for example how much power such mechanisms had to vet things, whether they could veto proposed delegated legislation completely and what recourse departments had. He said that he was not sure that any of the Subcommittee's report provided any answers to those questions. Partial implementation in the form of an interim mechanism that did not deal with such difficult questions would be the route to follow in the meantime.

Ms Tsholetsane said that if one looked at the work of such committees in other jurisdictions, one got the idea that they did not do much more than merely rubberstamp what they received. In 1998, the scrutiny committee of the House of Commons reported on 214 of 2 600 instruments that had been submitted to it (Annexure 1, page 8). It appeared that the committee only reported on problematic instruments.

Miss Rajbally pointed out that the Subcommittee also had to look at section 146(6) of the Constitution. Adv Masutha said that the matter of the powers of the NCOP when there was a conflict between national delegated legislation and provincial original legislation had not been discussed at the ANC workshop, save to say that the NCOP component had to attend to it and come forward with a proposal. The Constitution made provision for it, but there was no mechanism for its implementation. The task of the Subcommittee was to ensure that the NCOP processed it.

Adv Masutha said that the fact had arisen earlier that some of the issues would have the implication that the Rules of both Houses would have to be reviewed. It would, however, be unwise to forward matters to the Subcommittees on Review of Rules of the Houses without specific recommendations.

On the proposal of Adv Masutha, it was
AGREED: That the matter would be brought to the attention of the chairperson of the NCOP component of the Subcommittee and the Chief Whip of the Council, so that they could give guidance at the next meeting as to how the NCOP component proposed that the Subcommittee should proceed.

7. Closure (Agenda item 8)

The meeting adjourned at 11:26.

M T MASUTHA
Chairperson
T S SETONA
Chairperson

APPROVED: