Review of National Assembly Rules: Chapter 13 Legislative Process

Meeting report

The Chairperson welcomed the Deputy Minister of Home Affairs, Ms Fatima Chohan. The Review Task Team had been charged by the Sub-Committee on the Review of Assembly Rules to do a clause-by-clause review of the Rules of the National Assembly. The Task Team was near to completing a good job aided by experts such as former Members of Parliament, Mr Mike Ellis and Ms Sybil Seaton, who were part of the Task Team. They were about to review Chapter 13: Legislative Process and had decided to invite Ms Chohan who was the Convener of the 2008 Joint Task Team on the Legislative Process in Parliament. Her Joint Task Team had come up with a report reviewing the legislative process in Parliament and Ms Chohan would brief the Task Team on the details and desired outcomes of that report.

Briefing by Convener of 2008 Joint Task Team on the Legislative Process in Parliament
Deputy Minister of Home Affairs, Ms Fatima Chohan, said the current review of the Rules of the National Assembly was a broad and technical continuation of the process carried out by the Joint Task Team on the Legislative Process in Parliament convened in 2008.

Ms Chohan spoke about the Report produced by the Joint Task Team in 2008. As reflected in the report, the Joint Task Team approached the review by breaking it down into six sections: the legislative process, the tagging of bills, mixed bills, legal advisory and drafting services for parliamentary committees, public participation in the legislative process and a look at the legislative handbook. She focused on the recommendations in the report which was of importance to the current review of the Rules.

The Legislative Process
Ms Chohan explained the various stages which ordinary Bills, excluding Constitution amendment Bills and money Bills, go through. These included: initiating, development and cabinet approval; submission of the draft Bill to Parliament; processing and certification by the Office of the Chief State Law Adviser; submission of certified Bill to Parliament; prior notice and publication of draft; introduction; the committee stage; the plenary stage; the process in the other house; submission of Bill to the President for assent and finally the Bill becoming an Act.

The Joint Task Team recommended that there needed to be substantial engagement between Parliament and the Executive on all pre-introduction processes for Bills, and specifically the application of Joint Rule 159, NA Rule 241 and NCOP Rule 186. Since the purpose of Joint Rule 159 was to alert Parliament about an imminent Bill, it was recommended that the rule should require only the long title of the draft Bill or a summary of its objectives to be sent to Parliament. Also considering the fact that the purpose of the notices in terms of NA Rule 241 and NCOP Rule 186 was to inform the public of the imminent introduction of a Bill in Parliament, consideration had to be given to publishing only the long title or a summary of the objectives of the Bill concerned. Publication of the Bill itself in the Government Gazette could follow at a later stage.

Ms Chohan explained the language requirements for Bills and noted that the recommendation of the Joint Task Team was that Joint Rule 220(1) should be brought in line with the established practice, namely that the official text of every Bill must be in the English language. This rule should provide that a translation of a Bill into at least one of the other official languages must accompany the Bill when it is introduced [with an escape clause to allow the introduction of a Bill in one language in urgent cases or where there are other suitable reasons]. An option to this recommendation was to require that, instead of a translation of the whole Bill into at least one other language, a translation of either a summary of the objectives of the Bill or, where appropriate, the long title should be provided in all other official languages. This would enable the dissemination of the objectives of legislation to a wider spectrum of the population. The Joint Task Team recommended that Joint Rule 222(1) should be changed to provide that when an Act is amended that was passed after the adoption of Rule 220 [March 1999], the official text of the amendment Bill must be in the same languages as the signed text of the Act.

Ms Chohan explained the committee procedure and usual chain of events when a Bill was referred to a Committee for consideration. The 2008 recommendations for committee procedure were that the stages of legislative procedure to be followed by a Committee in considering a Bill should be spelt out in the Rules and elaborated on in the handbook. The adoption of a motion of desirability did not serve any purpose, and the 2008 recommendation was that it should be scrapped. This was eventually scrapped from the Rules.
In view of various practices concerning public involvement in the legislative process and recent judgments by the courts in respect thereof, it became imperative for the public participation process to be separated from the deliberative stage. It was further recommended that the Rules should provide that the final version of a Bill, that is the version going to the House for adoption, must be before the committee in its final form when it decides on and votes for or against the Bill.

Tagging of Bills
After defining tagging and listing the types of Bills which could come before Parliament, Ms Chohan explained that the Constitution created different legislative processes for different types of Bills. This raised potential questions about the constitutional validity of legislation resulting directly from the procedure it followed in Parliament. The correct classification of Bills was a challenge for Parliament. For that purpose Joint Rule 151 established the Joint Tagging Mechanism (JTM), consisting of the Speaker and Deputy Speaker of the National Assembly and the Chairperson and permanent Deputy Chairperson of the NCOP. Every Bill introduced in Parliament was referred to the JTM for classification. For the purposes of all parliamentary proceedings, the JTM’s classification of a Bill was final and binding on both Houses. If the JTM classified a Bill as constitutionally or procedurally out of order, the Bill could not be proceeded with.

The Joint Task Team recommended that for tagging purposes, a Bill should be looked at objectively and classified according to its dominant feature. Only when a Bill did not have a single substantial character and contained both section 75 and section 76 provisions could it be classified as a mixed Bill. Parliament had to be proactive with regards to this and should give credence to these proposals for the Joint Rules.

Mixed Bills
Ms Chohan told the Task Team that in an effort to alleviate some of the difficulties involved in classifying and separating section 75 and section 76 Bills, Part 7 of Chapter 4 of the Joint Rules provided a procedure for mixed section 75/76 Bills . A mixed Bill contained provisions to which section 75 of the Constitution applied as well as provisions to which section 76 applied, but which could not be classified as either a section 75 or section 76 Bill using the pith and substance test. In terms of Joint Rule 191, a mixed Bill could be proceeded with if it was of a nature that a dispute between the Houses was unlikely to arise, if it would be possible to split the Bill if necessary into a section 75 and a section 76 Bill, and if the Bill would not lead to other unmanageable procedural complications. The procedure for mixed Bills attempted to ensure that the requirements of both section 75 and section 76 were met. Hence, the NCOP must pass a mixed Bill by both voting procedures; first voting by province and then by individual member. Since there was uncertainty about the constitutionality of the mixed Bills procedure, the implementation of the relevant rules had been held in abeyance until legal clarity was obtained. Parliament approached the Constitutional Court for advice on this but the then President of the Court responded that such advice could not be given. Consequently, the legal uncertainty remained.

In view of Parliament’s constitutional obligation to comply with the “manner and form” requirements for the passing of legislation and the possible consequences of failure to do that, it did not seem advisable to implement the mixed Bill procedure at that stage. The Joint Task Team recommended that an amendment of the Constitution be considered to make specific provision for mixed Bills or a rules review be done to delete the mixed Bill procedure from the Joint Rules and continue with the practice whereby a Bill that contained both section 75 and section 76 provisions and did not qualify to be tagged as either of the two was regarded as unconstitutional and out of order. It was alternatively recommended that the rules should retain the mixed Bill procedure in the Joint Rules but without implementing it until the Courts had had occasion to give guidance on the constitutionality of the procedure. And, in the meantime, continue with the practice of considering Bills containing both section 75 and 76 provisions as unconstitutional.

Legal Advisory and Drafting Services for Parliamentary Committee
The recommendation of the Joint Task Team was that Parliament should initiate discussions with the Executive with a view to establishing such a central legislative drafting office, serving both the Executive and Parliament, to provide an integrated service for the drafting of parliamentary legislation in accordance with best practice in various other countries.

Legislation Handbook
Ms Chohan said that some countries had a legislation handbook which set out the legislative process in fine detail. Such handbooks stipulated the roles of the various stakeholders as well as the procedures to be followed in the different stages of making and amending laws. The handbook had an official status and served as a general guide in relation to the legislative process. The Joint Task Team recommended that such a legislation handbook be developed as a joint initiative between Parliament and the Executive. The handbook had to set out the principles, processes and practices involved in making Acts of Parliament, from inception to completion.

Discussion
The Chairperson thanked Ms Chohan for the briefing and said that after listening to Ms Chohan it was important for the Task Team to establish what it wanted to consider and relate it to the current rules review process. The legislative process was a very interesting one and Whips and Chairperson had to be taken through the process once the reviewed rules were out.

Ms Kalyan said that the briefing from Ms Chohan was a very good one and much had been learnt from it. With regards to tagging, she asked what were the legal implications of a situation where a committee had finished its work on a Bill but the Bill could not proceed as it had not been tagged. She was under the impression that when the Bill was introduced to the Committee, the tagging should already have been done in order to tie in with its work on the Bill. A current example was the Marine Living Resources Amendment Bill which was provisionally tagged as a Section 75 Bill. The Portfolio Committee had deliberated and finalised it yet in today parliamentary papers, it was now tagged as a Section 76 Bill.

Mr M Booi (ANC) said that in terms of public participation, Parliament was not reaching out to the people out there, especially the ones in the rural area. The presentation done by Ms Chohan was very good and was not only of use to the Members of the Task Team but also of great importance to all Members of Parliament. The work of Parliament was unfortunately not reaching ordinary people. In most of the public hearings conducted by Committees, it was only the elite who attended or made submissions. How many people had access to the Bills? This was not only about rural areas but urban areas too. This was why many of the Bills passed in Parliament did not have the input and opinion of the ordinary man. There was an urgent need to find a way of reaching out to everyone. There was Parliament TV but this was only accessible to people who had DSTV. Public participation had to be taken more seriously.

Ms J Kilian (COPE) said that the National Assembly Programming Committee had recently been talking about the tagging of Bills and it appeared that the current delay in tagging was partially due to the fact that a lot of Bills had been introduced just before the final Fourth Parliament deadline of 7 June and that had created a blockage. The problem was that some of these Bills were very long and had not had a thorough analysis of how they should be tagged. The beginning of committee work on a Bill was the detailed discussion of a Bill before the adoption of the Committee’s report. This was the section of the process which always experienced the most delay.  

Ms Kilian said, in terms of public participation, it was important to simplify the objectives of the Bill so that the man on the street could understand. In previous processes, public participation was initiated but people would come and speak on completely different matters and the essence of the Bill was not dealt with. This meant that they did not quite understand what the public participation was about. This often made the processes quite clumsy and difficult. This was an issue which had to be addressed.

She believed that some of the broader recommendations about the positioning of legal drafting capacity which could serve both the executive and legislature was quite useful. Parliament had now extended its constitutional and legal services and it was now busy building drafting capacity. It was important not to duplicate but it was also very important not to downplay any views from the executive. Parliament was often so reliant on and confident about departmental and state legal advisers but yet they always advise against changes to the Bill. She was concerned because government could easily be opening itself to legal challenges about the process followed and by allowing the executive to drive the process while it was in the domain of the legislature.

A former Member of Parliament and Consultant, Mr Mike Ellis, said that it was necessary to establish the type of support which committees could need during the legislative process. Too often, committees were guided by “other groups” outside of Parliament. What support was required by the Committees?

On Tagging, Mr Booi said it was important to know how much time was put into a Bill. Tagging was a constitutional command but that did not mean for the whole process of law making?

The former Secretary to the National Assembly and Consultant, Mr Kasper Hahndiek, said that the rules provided that tagging had to be complete before Committees could work on the Bill. This was because if committees wanted to amend the Bill, they had to have a clear knowledge of the types of amendments which could be introduced. A Committee could not report on a Bill until it was tagged. On the motion of desirability issue, he was of the opinion that the concept was misunderstood. There was the need for an engagement on the principle of the Bill before getting down to the detail. Taking a decision on its desirability did not mean passing the Bill. ‘Desirability’ was only about the principle of the Bill and that was captured in the long title. The question was whether such a Bill was required and why was such a Bill required. Once it was agreed that such a Bill was required, the next step was to see what the Bill proposed. Upfront, there was need to engage on the principle of the Bill. This was what the motion of desirability was all about.

The Chairperson welcomed Mr M Oriani-Ambrosini (IFP) who had just joined the meeting.

Mr Ambrosini expressed his apology for his absence in the last months due to health concerns. He wanted to make a point and he hoped he was not taking the Task Team back. It was a point he wanted to make in respect of the chapter on legislative processes. What type of Parliament did the Members want to have? There were many options. There was the format of the US Congress where there was total separation of powers and no member of the executive could introduce a Bill in Congress. Not even the President of the US. He had to find a Member of Congress who was willing to introduce the Bill. On the other end of the spectrum, there was the South African Parliament (prior to the Constitutional Court ruling) where Members of Parliament could not introduce Bills and only the executive could. In reshaping Parliament, there was the need to look into the future. Part was capacitation and part was freedom. This review exercise was for the future and there was not going to be adherence to party lines as much as it was done now. Were the future Members of Parliament going to be freer? The motion of desirability was a formal mechanism. Looking at the US Congress, there were other mechanisms and an example was the scheduling of the Bill. The Constitution provided that Parliament had to decide with the benefit of public input. The motion of desirability was a mechanism to kill a Bill. There had to be public inputs first, before the motion of desirability. This was informed by the constitutional requirement of hearing what the public wanted. It was constitutionally impermissible to use the motion of desirability prior to the receiving of public comments.

The Chairperson called on Ms Chohan to comment and respond to the questions asked.

Ms Chohan noted that all the points raised by the Members were very interesting. She agreed with Mr Hahndiek’s response on the question of tagging. She welcomed Mr Ambrosini and said that she was pleased to see him. She hoped that his health had much improved. She took permission from the Chairperson to start with the issues raised by Mr Ambrosini as they more or less covered everything which had been raised by the Members. On the introduction of a Bill, she did not think that the issue of what kind of Parliament South Africa should have was in question. It occupied the drafters of the Constitution for months and these were discussions that were infused by political ideology and party philosophy. It was not good to think that the nation operated in a vacuum in that regard. This was part of the reason why she advised that when Parliament dealt with these issues, it should make use of people who had enormous experience as practitioners in Parliament. It was about building an institution, there was a common denominator and an aspect we all had an interest in. Equally, care had to be taken not to try to re-write what had been a very historical process and a process which had allowed the nation to forge a new future and new dispensation out of the ashes of the old. It was incorrect to say that these discussions had to be held now for the first time. There were going to be continual discussions in some aspects but there was a constitutional construct which did not talk about foreign models. South Africa had forged its own model. Interestingly, on the introduction of Bills, a member of the executive could only introduce a Bill in the National Assembly. In the NCOP, it was only a Member of the NCOP who could introduce a Bill. These were deliberate decisions and not a “building a china shop” kind of approach. Members of the executive could introduce Bills in the NCOP through the signature of a Member of the NCOP. This was in a bid to make sure that the two houses actually developed. She was of the opinion more could be done with Private Member’s Bills especially with issues which were non-contentious. This was an important but it was dependent on many dynamics and as the institution matured, the National Assembly was going to be better placed to deal with Private Member’s Bills. However, she did not think that Members should lose sight of the fact that there were vested interests in the implementation of Bills. To say that the executive must be excluded from Private Member’s Bills was a wrong notion. Adhering to the notion of state architecture, government had three arms and this led to the understanding that the maturity of the system was crucial. If a private member wanted to change something, there was the need for serious cooperation from the executive because once the Bill was passed, its implementation was now in the hands of the executive.

On tagging, the issue was why was tagging a problem all of a sudden. The answer was that now that the courts had decided that they would review the procedure through which Bills had been processed, tagging became crucial. This was because it was the weakest part which was most vulnerable to attack. This was because it was very open ended. It was not the simplest thing to do. There was very little that did not affect provinces. It was true that there was a legal aspect to the procedure but equally, it was informed by political considerations around what system of governance was desirable. Tagging was a political issue and that was when the problems crept in. it was easy to make a decision on tagging but it was equally easy to say it was a wrong decision. This was a serious concern. The issue was not what was or what was not a section 75 or 76 Bill. The issue was to what extent Parliament gave expression to the clause in the Constitution that said that Parliament defined its processes and not the courts or anybody else. Part of the problem was that the vacuum had been left and judicial creep had happened. Rightly or wrongly, there was the need to apply talents to the question to ask whether there was a sense that Parliament was in control and not the courts. Running to the courts made Parliament meaningless. This was not healthy for a young democracy. Members had to agree to re-assert parliament in terms of the substance and not the processes. If this was not done, it was going to cause harm. Some courts had even found it appropriate to refer matters back to Parliament.
Another mechanism was to give it a window of opportunity. This was probably the more effective way to do it. Once there was a tagging decision, there had to be a window of opportunity for anyone who wanted to challenge the decision, to take it court and deal with it once and for all. After that window had lapsed, there should be no opportunity for anybody to challenge it again. This was a possibility to be considered just to ensure that something was done properly.

On the motion of desirability, Mr Hahndiek was quite correct. It was a traditional thing, She actually thought that if they had applied the rules where the substance and nature of the Bill were brought to the Committee first to discuss if the Bill was an option to be explored, then it made eminent sense to have motions of desirability. The problem which arose was that when Committees met for the first time to discuss the Bill, the Bill was before them so the instinct was to go directly to clause-by-clause deliberations. With a motion of desirability, it gave Members a foretaste of whether the Bill should be passed or not and this was how she suggested that it should work.

On oral and written public comments and submissions during public hearings, the Joint Task Team tended up front to make the differentiation between the two major powers and functions of Parliament. The first was to legislate and the second was to oversee. Looking at the 2008 Report carefully, the two were separated but spoke to the context of how Parliament engaged with the budget based on its oversight experience. Where a Committee went ahead and did oversight and realized that a Department was up to no good, the Committee wrote reports but the executive could ignore those. Where did the power of Parliament lie? It was in bringing its experiences from oversight into the legislative process.

The South African Parliament was not the United States Congress. There was a lot of emphasis on co-existence and cooperation in SA’s Constitution. There were Parliaments which had a limit to the number of Bills which could be passed and in terms of the amending the budget, there were certain percentages which Parliament reserved for itself. It was symbolic more than anything else. In so far as public participation was concerned, the distinction could be made between the two types of parliaments. Talking about oversight, there had to be maximum opportunity for public participation. This was the part where the Constitution placed public participation out of the legislative process. This was drafted in the context of having a new Parliament where people did not feel unwanted as ordinary citizens and one which allowed for the People’s Parliament concept. However, through the actions of Parliament, the space had been opened to include public participation. Parliament had to be careful of its practices as they were soon going to be interpreted as concrete law. This was the situation with public participation.

Ms Chohan thanked the Chairperson and the Members for the opportunity to brief the Task Team and respond to their questions and comments.

The Chairperson said that the briefing was very informative and he thanked the Deputy Minister for the eloquent way in which she had presented the issues. It had been a highly educative meeting and it was very useful. When the Task Team dealt with the clause by clause issues of the Rules, it was going to be relatively easy. The Task team was going to borrow from the report and reshape it to accommodate the issues of concern. Unless chairpersons and whips understood these rules and processes, there was bound to be confusion. The rules were very important and only very few Members understood the rules of parliament. He was aware that Mr Ambrosini was married to American and other foreign systems and he was very unmarried to the South African system but it was important to understand that South Africa was development its own system of governance and the point was that every rule had a clear purpose. The rules were not a bible and could actually not cover everything. However the Rules had to be adhered to so that poor practices were avoided. He thanked the Deputy Minister for her time and engagement with the Task Team.

The Chairperson told Members that the next meeting had to be a very serious one and he suggested that they could meet for the whole day from 9am until 3pm.

The meeting was adjourned.