Joint Subcommittee on Delegated Legislation: deliberations

Joint Rules

20 March 2002
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Meeting report

Parliament of the Republic of South Africa

The following minutes were taken by National Assembly Table Staff Member, Ms Marina Griebenow.
Wednesday, 20 March 2002 (11:10) V226

National Assembly
Masutha, M T (Chairperson)
Pretorius, I J
Rajbally, S
National Council of Provinces
Jacobus, L
Maseka, J T
Matthee, P A
Schmidt, H C
Nogumla, R Z
Surty, M E

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

1. Opening and welcome (Agenda item 1)

Adv Masutha, as chairperson, opened the meeting at 11:10.

2. Apologies (Agenda item 2)

Apologies were tendered on behalf of Messrs Y I Carrim and T S Setona.

3. Consideration of agenda (Agenda item 3)

On the proposal of Adv Masutha, the discussion of agenda item 6 was moved forward in order to accommodate Mr Surty's contribution, as the scrutiny of provincial legislation required input specifically from the NCOP component. The agenda, as amended, was adopted.

4. Discussion: Scrutiny of provincial delegated legislation and municipal by-laws (Agenda item 6)

Adv Masutha briefly explained section 146 of the Constitution, which creates a dispute resolution mechanism in the event of conflict between national and provincial legislation. He said if national legislation set norms and standards along particular lines, it automatically prevailed. However, that was not the substance of the Subcommittee's concern, as it did not deal with original legislation. The Subcommittee had to deal with section 146(4), which creates a deadlock-breaking mechanism between the two spheres of government, specifically in the area of delegated legislation. In terms of this section, the NCOP is given the authority to break such a deadlock if it exists.

Mr Jenkins explained that in respect of certain areas in Schedule 4, which deals with concurrent powers, provincial legislation could prevail over national delegated legislation. The section proposed a mechanism - not a mandatory provision - to deal with such a situation. In drafting a policy to scrutinise delegated legislation, this provision had to be taken into account. In scrutinising delegated legislation, one had to be aware that it could be tested against provincial legislation.

Mr Surty explained that one had to look at two areas. One was where there was conflict between national and provincial legislation. When such conflict did occur, the matter had to be referred to the NCOP. If the dispute went to court, the court would take the opinion of the NCOP with regard to the dispute into account. However, the Subcommittee had to look at sections 146(6), 146(7) and 146(8), which dealt with subordinate legislation emanating from national legislation in areas were there were concurrent competencies, or from a provincial Act.

Adv Masutha said that section 146 dealt with two distinct areas: original legislation, which was not part of the Subcommittee's brief, and subordinate legislation. The latter was the Subcommittee's concern. The challenge to the Subcommittee was to come up with a mechanism through which it could implement what was being envisaged in section 146(6).

On the application of section 146(6), Ms Borien quoted an example mentioned by Prof Christina Murray. A law made in terms of an Act of Parliament or a provincial Act, ie delegated legislation, could prevail only if approved by the NCOP. That applied in the case of delegated legislation made in terms of a national Act that was in conflict with a provincial Act or in the case of provincial delegated legislation, which could trump national legislation.

If there were, for example, a national Consumer Protection Act - consumer protection being one of the areas in which there are concurrent powers - and a Gauteng Consumer Protection Act, and the Minister issued regulations that were in conflict with the Gauteng Consumer Protection Act, the provincial Act would prevail. The Minister's regulations would not apply in Gauteng unless the national regulations had been approved by the NCOP. The same applied to provincial regulations.

Adv Masutha said that the Subcommittee's concern ought to be how it could develop or propose a mechanism to enable the NCOP to actualise the constitutional mandate it had been given.

According to Prof Murray, disapproval by the NCOP did not affect the validity of delegated legislation. Its approval would only be relevant if there were conflict. Prof Murray was also of the opinion that the national government or a province could choose to refer only those delegated instruments which they thought could come into conflict with existing or future legislation. The choice, therefore, remained with the national government or the province to refer delegated legislation to the NCOP.

Mr Surty said that one had to consider why the drafters of the Constitution would have such a provision. He explained that provinces could refer matters to the NCOP in cases where there was conflict and the NCOP would then act as arbiter, as it represented all nine provinces. The NCOP would approve or disapprove the delegated instrument and provide reasons for its approval or disapproval. Mr Surty said that he believed that it would not occur frequently in the present context, but would increase as more powers were evolved to the provinces and they developed more capacity. He added that the NCOP would not consider all delegated instruments, but only those that were referred to it. What was necessary was a repository or library of delegated instruments to enable the NCOP to consider matters in context. He suggested that the issue of a mechanism for scrutiny, also by the NCOP, should not be looked at in isolation. A general mechanism should be created and the constitutional obligation of the NCOP should be considered in that context.

It was
NOTED: That a specific role had been assigned to the NCOP and therefore a procedure would have to be created in respect of scrutiny which did not include the National Assembly.

The rest of the oversight function in respect of the scrutiny of delegated legislation would, however, have to include both Houses. In the design of the mechanism, the Subcommittee would need to delineate some of the issues and conform them in accordance with the intentions of the Constitution.

Proposal for an interim scrutiny mechanism (Additional agenda item)

Adv Masutha said that all the issues around delegated legislation had been unpacked. Alongside that was the issue of an interim mechanism that had to be developed. The question of what had to go into the interim mechanism was an immediate one that had to be resolved. He brought to the attention of members that a draft proposal on the interim mechanism was before them as Annexure 3. He asked members to ensure that the issues raised by Mr Surty were included.

A document marked "Annexure 3" had been distributed to members of the Subcommittee earlier and was presented by Ms Tsholetsane.

She explained that the proposals in the document emanated from previous discussions of the Subcommittee. She proposed that scrutiny, in the interim, should be done by portfolio and select committees, as they were au fait with the parent legislation which had given rise to the subordinate legislation. As a starting point, all parent Acts should establish a general duty for all regulations to be tabled and uniform time periods to be prescribed. At present there was no uniformity.

Adv Masutha said that a more appropriate approach would be for the Subcommittee to draft legislation that would prevail over any other law and set uniform standards for the tabling and processing of subordinate legislation. It was a question of ensuring that there was uniformity of norms and standards regarding the scrutiny of delegated legislation.

Ms Tsholetsane further suggested that an interim mechanism should focus on regulations, to the exclusion of other instruments of delegated legislation, since the Subcommittee was still in the process of deciding what instruments should be brought before Parliament for scrutiny.

Adv Masutha pointed out that it was a choice that the Subcommittee had to exercise. Did it want to confine itself to regulations or did it want to open up the interim mechanism completely, bearing in mind that the issue of what constitutes and what does not constitute delegated legislation had not been completely resolved?

He added that certain bodies developing subordinate legislation had to do so in consultation with the relevant Minister and that particular Minister then exercised oversight over other types of delegated legislation. He said that the Subcommittee could even deliberate on uniform standards for other types of delegated legislation. He mentioned the example of the Rules Board that could make rules, but they did not become law until the Minister had approved them. One could, therefore, legitimise the situation in the legislation that the Subcommittee would be coming up with. These were options that the Subcommittee would consider.

Adv Schmidt said that he had a problem with legislation that would prescribe to portfolio and select committees how they should go about their work. Adv Masutha pointed out that that was what the Constitution provided for. Mr Surty added that Parliament could, if it wished, establish appropriate mechanisms to encourage uniform practice, including legislation. He said that one would, however, have to look very carefully at what one put into that legislation.

Mr Surty congratulated the staff on the documents presented to the Subcommittee and said that they contained good proposals. He said that Annexure 2, which contained the issues on which political decisions were required, would inform the Subcommittee as to how it should deal with Annexure 3. In Annexure 3 minimum standards could be set with which the executive would have to comply until such time as the Subcommittee had developed an appropriate understanding of what was required. He said that subordinate instruments should be published for a certain period, for example for not less than 30 days and for not more than 120 days. Portfolio and select committees should not be compelled, at that stage, to comment on it. One could, however, determine that if the relevant portfolio or select committee had not responded within this time, the regulations were in order. Until such time as the workshop had been conducted and the executive consulted, minimum standards should be set.

Mr Surty said that the first three bullet points of Annexure 3 were acceptable. The third could be developed, even by means of an instruction of the Rules Committee. The subordinate legislation would then, through the Clerk of the Papers, be referred to portfolio and select committees. He said that the fourth bullet warranted more discussion and would probably be informed by Annexure 2. It would, in the end, be very useful in the development of the interim report. Regarding the last bullet, he said that the provinces could be very helpful in making the regulations available electronically. He suggested that the NCOP could become the custodian of all provincial delegated legislation.

Adv Masutha explained that the purpose of Annexure 3 was to enable the Subcommittee to make definite proposals on an interim mechanism to the National Assembly Rules Committee. The Rules Committee would then, probably, refer the document to political parties for input, whereafter the Subcommittee would finalise its recommendations on a interim scrutiny mechanism from the feedback received. It was, therefore, necessary for the Subcommittee to develop the document by suggesting elements that could be included for consideration.

Mr Matthee said that he agreed with what Mr Surty had said about the interim scrutiny mechanism. He added that the reason why portfolio and select committees had been shying away from accepting additional responsibilities was the fact that they did not have the necessary capacity to deal with such issues. Not all committees had lawyers serving on them. He suggested that the point should be made in the document that there was a desperate need for committees to be provided with the necessary capacity by having more legal advisers who work for Parliament and not for the executive. That would enable committees to deal with the substantive issues before them.

Adv Masutha said even if portfolio and select committees were tasked, in the interim, with the scrutiny of delegated legislation, the question remained whether there should not be some kind of standalone or overarching structure that could process everything and select issues for the various committees to deal with.

Mr Surty said that the nature of the capacity required would be determined by how far one wanted to go with the exercise. He said that Commonwealth countries were moving increasingly also towards considering the socioeconomic impact of subordinate legislation. That required someone who had the necessary legal and economic skills to assess such impact. He suggested that the Subcommittee should not go the expansive or expensive route in its consideration of an interim mechanism. The approach should be fundamental and progressive. He suggested that a retired academic could be appointed to vet the subordinate legislation that had been tabled and make certain recommendations to the portfolio and select committees, as they did not have the necessary capacity to deal with every piece of delegated legislation.

Adv Masutha agreed that the approach would initially be minimalist. He said that the real capacity would be necessary once the permanent structure was in place. The Subcommittee would also have to look at what monitoring systems were already in place at policy level.

On the proposal of Adv Masutha, it was
AGREED: That Annexure 3 would be expanded to include the various options that had been mentioned in the discussion and the implications of the options noted.

Adv Schmidt enquired how the interim mechanism would deal with subordinate legislation of which it disapproved. Adv Masutha replied that a procedure would have to be established to deal with such a situation. The scrutiny mechanism could, for example, recommend to a department to look at the problematic issues and ask it to resubmit the subordinate legislation.

Ms Tsholetsane mentioned that the questions that had been raised had been dealt with in the main document, Annexure 1, including that of the capacity of portfolio and select committees. She said that the document mentioned that the Subcommittee could consider proposing the establishment of a separate committee to deal with delegated legislation.

Regarding the first bullet of Annexure 3, Miss Rajbally said that ad hoc committees that had been established had had a detrimental impact on the work of portfolio and select committees. She said that the Subcommittee would have to consider very carefully whether it wanted to established a separate committee or whether it wanted the work done by portfolio and select committees.

Adv Masutha agreed that the current workload of portfolio and select committees made it almost impossible for them to discharge their task of passing legislation and exercising oversight. The scrutiny of delegated legislation would, therefore, be an added burden.

He said that one way of addressing the problem could be for a committee to determine whether it was necessary to scrutinise the regulations or not. An initial, superficial examination could, if required, be followed by a more elaborate scrutiny procedure.

Regarding the second paragraph of the fourth bullet of Annexure 3, Adv Masutha remarked that it was controversial. Adv Schmidt added that the most damning infringements of personal rights and freedoms had been contained in regulations. It was, therefore, imperative to include the legal and constitutional issues in the scrutiny of delegated legislation. Mr Matthee agreed that they were too crucial to be excluded. He reiterated that the problem was the lack of capacity of committees.

Adv Masutha said that if the Subcommittee recommended the route suggested by Mr Surty, namely that of acquiring the services of a retired legal expert, that kind of problem would be picked up. There was, therefore, a role both for portfolio and select committees and for a committee that would filter the subordinate instruments. Such a legal expert would have the same kind of role in respect of delegated legislation that the state law advisers had in respect of original legislation. He asked whether one could not consider extending the role of the state law advisers beyond that of original legislation to include delegated legislation. That would, however, be for the executive to decide.

On the proposal of Adv Masutha, it was
AGREED: That there would have to be an administrative mechanism to advise portfolio and select committees on legal and constitutional issues.

Adv Masutha added that another option would be to have the portfolio and select committees only taking decisions on policy issues and an expert dealing with the technical issues, filtering the subordinate legislation and preparing a report for the relevant committees.

Mr Matthee said that the state law advisers were part of the "problem". He asked how Parliament could be expected to do oversight of the executive, using the services of the executive's law advisers. The answer was to get more parliamentary law advisers. Once the legal experts had examined the technical issues, portfolio and select committees could take decisions on the political issues.

Ms Tsholetsane explained that the final bullet did not deal with the power given to the Minister in the parent Act. Mr Matthee said that he could not see how one could scrutinise delegated legislation without looking at that aspect. Adv Masutha said that the scrutiny of the Minister's power was a given. He added that there was another issue that fell outside the Subcommittee's mandate but which required attention, namely to what extent the parent Act was divesting Parliament of its responsibility to make laws.

Issues that require political decision (Additional agenda item)

Ms Tsholetsane, at the request of Adv Masutha, explained that the main issues from Annexure 1, Scrutiny of Delegated Legislation by Parliament, had been extrapolated and summarised in Annexure 2, Issues that Require Political Decision.

Annexure 2, which had been distributed to members of the Subcommittee earlier, was presented by Ms Borien.

Regarding the definition of delegated legislation, Adv Masutha said that increasingly it was becoming necessary to define delegated legislation and that could be done in one of three ways, namely by exclusion, by inclusion and by attributes.

On the proposal of Adv Masutha, it was
AGREED: That the document containing the definition of delegated legislation by attributes which had been discussed at the previous meeting would be expanded also to include a definition by exclusion and a definition by inclusion.

Regarding the definite exclusion of certain delegated instruments, Adv Masutha said that the Subcommittee had already decided to exclude certain instruments in respect of the interim scrutiny mechanism, but the matter would have to be left open for decision in respect of the long-term scrutiny mechanism.

Regarding where the scrutiny mechanism should be set out, Ms Tsholetsane mentioned that it could be necessary to examine what other jurisdictions were doing. She said that most jurisdictions set out the framework in legislation, but the actual scrutiny criteria and procedures were contained in the rules.

On the proposal of Adv Masutha, it was
AGREED: That the document would be expanded to include a definite proposal on where the scrutiny mechanism would be set out.

He said that he would be inclined towards passing a national law similar to the Interpretation Act, one that would determine that regardless of any other law, a particular procedure had to be followed with delegated legislation. One would then have the option of trumping other legislation or filling the gap in cases where the law was silent. If, however, the procedures were set out in the rules, one would not have the option of trumping a procedure that had been created in earlier legislation when new regulations were issued.

Adv Schmidt said that the procedures should be set out in one place. He said that he preferred legislation, as it created a lot of confusion if matters were set out in different instruments.

Mr Pretorius said that the NNP also preferred the scrutiny mechanism being set out in legislation, as the Constitution expressed itself in favour of that.

Regarding the accessibility of delegated instruments, Adv Masutha said that it was a constitutional requirement that delegated instruments had to be made accessible to the public. It had been mentioned at a previous meeting that the GCIS could be invited to the workshop to give input on their accessibility.

Mr Jenkins said that he had interpreted the particular provision to mean that the obligation was on the executive to make delegated instruments accessible. He mentioned a judgment by Justice O'Regan in which she stated that it was "an important principle of the rule of law that rules be stated in a clear and accessible manner". She continued to say that if it were not done, it could be an arbitrary exercise of power. Mr Jenkins said that it was not enough merely for the Subcommittee to say that it was the role of the executive to ensure the accessibility of delegated instruments. Justice O'Regan had also said that it was the role of the legislature to ensure that public servants implemented legislation and were sufficiently guided by the executive to act constitutionally. Mr Jenkins said in his opinion that would include the accessibility of delegated instruments. Parliament had a role to play through the principles of ensuring legality and adherence to the rule of law. He said that it was not something that Parliament could just leave to the executive.

On the proposal of Adv Masutha, it was
AGREED: That Mr Jenkins would compile a discussion paper in which the accessibility of delegated instruments was explained from different angles.

Preparations for workshop (Additional agenda item)

Ms Griebenow reported that a more detailed programme for the workshop had been circulated to members of the Subcommittee. Presenters had been approached and their response was being awaited. Also, approval for funding for the workshop was being awaited from the Speaker and the Chairperson of the NCOP.

8. Closure (Agenda item 9)

The meeting adjourned at 13:42.




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