Review of National Assembly Rules: Chapter 13: Legislative Process

Rules of the National Assembly

01 November 2013
Chairperson: Mr M Mdakane (ANC)
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Meeting Summary

Members were briefed on the tendency of Committees to make substantive changes to Bills. This might be against the policy of the Executive, and the intent of the public hearings. The Committee discussed the obligations on Members introducing legislation in their individual capacity. There should be public consultation before the Bill was introduced, and the costs of this should be borne by the Member or his or her party. Members felt that should the Bill meet with the approval of the relevant Committee, these costs could be refunded. While policy differences between major policies were found to be small, Members agreed on the need to publish a Memorandum (isn't this happening already?) containing the objectives and policy background of a Bill.

The Tongoane court case had settled the question of a mixed Bill that contained matters falling under both Section 75 and 76 of the Constitution. The Bill should be tagged a Section 76 Bill [according to the “substantial measure” test, any Bill whose provisions substantially affect the interests of the provinces must be enacted in accordance with the procedure stipulated in section 76].The concept of a mixed Bill no longer existed and it was proposed that the mixed classification be scrapped. Members agreed on the need for wide consultation, but the Executive had more resources to achieve this than a Private Member. Broad consultation would be expensive for a Private Member, and should not be compulsory. However, it would strengthen the argument for the Bill.

Members discussed the First and Second Reading procedure at some length. The first readings was an assessment of the broad desirability of a bill and was invariably skipped. It was agreed that all Bills should be introduced in Parliament, and that a brief first reading debate should be allowed. Too many Members were tied up in their areas of concern whereas all Members should have a sound knowledge of all the work being done by Parliament. The second reading debate should follow the committee deliberations. Members regretted the diminishing role being played by Parliament, as this was where all matters of national interest should be publicly debated. The current culture of regarding Parliament as barely relevant should be turned around.

In the afternoon, the Task Team discussed the rest of Chapter 13:
Rule 247 Procedure when Assembly in session
Rule 248 Procedure during recess
Rule 249 Process in committee
Rule 250 Referral to Assembly committee if joint committee fails to report
Rule 251 Committee’s report
Rule 252 Explanation of report
Rule 253 Second Reading
Rule 254 Amendments proposed by members before decision of Second Reading
Rule 255 Referral of amendments proposed in Assembly to Assembly committee
Rule 256 Referral to Assembly committee if joint committee fails to report
Rule 257 Consideration of Assembly or joint committee’s report

Members noted that it was important to make sure that the legislative process was followed. This greatly depended on the Chairperson of a Committee. Not following process put the entire Parliament at risk. Parliament got negative media reports and was embarrassed because process was found to be wanting. It was proposed that a clause be inserted to make a distinct differentiation between the different processes. Carelessness about due process allowed some members of the public, who were watching and looking for weaknesses in the process, to exploit this. Parliament could not afford that so its procedures had to be well defined.

The provision in Rule 251 about including the views of the minority in the Committee Report, was discussed. COPE said that including this was the essence of a constitutional democracy. Looking at the Constitution, it was explicit that the views of minorities must be included. There should be a paragraph about what were the principal objections by the minority. Such a provision also exposed opposition members the reasons for the opposition were not recorded. This would compel the opposition to also do its work and not merely oppose for the sake of opposition. The drafters were asked to find a better way to draft the Rule so that the minority had an opportunity to express itself as was enshrined in Section 57(2)(b) of the Constitution.

Rule 253(2) provided that the debate on the Second Reading must be conducted on the “subject” of the Bill. The task team agreed it needed to be clarified. It did not say the Second Reading must be conducted. Either the Rule should be reformulated to say it was compulsory or it should be made very clear that the Second Reading be done only if there were good reasons for it.

The Task Team agreed that the remainder of its work mostly dealt with procedural matters. It agreed to invite the Deputy Minister of Justice to its next meeting to brief the Team on procedural matters related to the motion of no confidence.  The Committee would continue to meet as planned to finalise the revision of Rules as well as the motion of no confidence.

Meeting report

Adv Charmaine van der Merwe, Senior Parliamentary Legal Advisor, recapped the recommendations of the 2008 Joint Task Team as briefed by Deputy Minister Fatima Chohan the previous week. The Executive needed to have an input in Bills, including Private Members' Bill. In Rule 233 a concern had been expressed that there should not be just blank references. The wording of Joint Rule 159 should be spelt out clearly. The proposal was that a Cabinet Minister would now be required to submit a draft version to the Speaker, and a Memorandum explaining the objects of the legislation. The 2008 Joint Task Team had asked to dispense with a sub-rule under 159 that gave the Speaker the option of amending Bills. The Office of the Speaker had recommended that the prior consultations with the Joint Tagging Mechanism be retained. When a Bill was introduced in the National Assembly (NA), it should be referred to the Joint Tagging Mechanism (JTM). These recommendations had been incorporated into the draft.

The Chairperson said that rules must have a purpose, and must be unambiguous. There would be new entrants to Parliament on an ongoing basis. The idea was not to control the politics of Members, but new Members should be aware of the Rules of Parliament.

Rule 237 Preparation of draft bill
Mr Kasper Hahndiek, former Secretary to the NA and consultant, said that there was a whole process in the Committees. The JTM should classify the final version of the Bill before it went to the House. The Committee should complete its work first, but then delay the introduction of the Bill until it was classified by the JTM. This would avoid future litigation.

Ms S Kalyan (DA) asked how a Cabinet Bill could become a Committee Bill.

Rule 241 Prior notice and publication of draft legislation
Ms J Kilian (COPE) reported on a case where a Minister had introduced a Bill but the Committee had got stuck on some of the clauses. The Executive knew what its capacity was to implement a Bill, but some of the changes made at the Committee level did not match this capacity. The Minister of Human Settlements had withdrawn a Bill because of the changes made by the Committee. A Committee should only deal with recommended amendments of an Amendment Bill, and would have to then seek the consent of the House before introducing new clauses to amend other sections of the principal Act. If not, the Bill must be withdrawn.

Mr K Hahndiek said that the intent of the Bill must be clear. What was contained in the Bill, whether new or an amendment, should be summarised in the long title. The Committee might decide to make further amendments to a principal Act. There could be major implications for the passage of the Bill if the Committee went further than what was originally intended.

Ms Kilian said that it took things back to the public participation process. This was done on the Bill as presented to Parliament. If the changes went too far there should be a new public process. This matter had to be clarified.

Mr K Hahndiek said that if the Committee went beyond the original Bill then this would not be apparent to the public. Those issues presented to the House should be the area of focus.

The Chairperson said that the Rules should minimise the need for legal opinions. The guidelines should capture the processes. The public could make a profound contribution that could change the nature of the Bill. The Committee should report on public opinion and advise the executive on the need to change the Bill fundamentally.

Adv van der Merwe suggested that Rules 239 and 240 provided for consultation. Rule 240(c) said that the Committee must consult the JTM. She suggested that there be a stipulation that the tagging should be on the original intent of the Bill. A redraft of a Bill could be entertained where there were too many amendments for the A list of Portfolio Committee Amendments.

The Chairperson said there could be a case was where a Bill introduced by a Minister was so substantively changed by the Committee that it was effectively a new Bill. The Rules should be clear on this. This created management problems.

Mr Michael Ellis, Consultant and former DA Member of Parliament, asked why this was such a problem.

Mr K Hahndiek said that this was because of the public participation process. Redrafting should be confined to the subject of the Bill.

Mr Perren Hahndiek, Committee Secretary, said that there were two meanings to 'redraft'. The more extreme case was where there was a change in policy.

Mr S Tshabalala, Committee Section Manager, said that the Memorandum should explain the objects. The application of this was limited by the current Rules, and this led to confusion. The Memorandum should be clear in expressing the objective, and should consider the socio-economic consequences of the Bill. Each clause should be unpacked to make the intention clear.

Rule 243 Introduction of bills in Assembly
Adv van der Merwe said that Rule 249 (Process in committee) was currently drafted in a confusing manner. The Committee, in the case of an Amendment Bill, had the discretion of seeking the permission of the NA to make other changes to the Amendment Bill. She proposed that this be corrected for clarity. If the Bill was an Amendment Bill, the permission of the NA should be obligatory. She gave the example of the Rental Housing Bill. The Committee, with the permission of the House, had changed the entire subject matter. The Bill had been re-published and more public submissions had been invited. It made sense to define 'redraft' as being a process that did not change the subject matter of the Bill. The Memorandum was a bit of a stepchild in legislation. Some went into commendable detail, while others were sketchy. This detail was a lot of work, but would assist the Committee.

The Chairperson asked why this should be so difficult. A large percentage of legislation was in the form of amendments. Only certain clauses were being amended. He did not think that this should present that much difficulty to the Executive. The intention of the Bill should be made clear. A Committee could not change policy.

Ms Kilian suggested that the difference between the two types of redraft be defined. There was a reference to individual Members. Section 73 of the Constitution ensured that a Member of Parliament could introduce legislation. She queried the use of the term 'Private Member'. A more consistent reference would be to an Individual Member.

Mr K Hahndiek said that there could be a reference to a Member acting in his or her private capacity. There was a proposal to amend Rule 227(1)(a). If a Member published a draft Bill in terms of the Rule, it could be introduced after public comment. In the case of the Executive, public consultation was required before the Bill went to Cabinet, and only then did the Bill go to Parliament. In the case of a Member's Bill, his proposal was that a Member could draft a concept bill. Any comments received would be referred back to the Member prior to introduction of the Bill. He asked if Parliament should "support" the public participation process in this case.

Mr M Xaso, Secretary to the National Assembly, said that the Rule reflected the current practice.

Adv van der Merwe said that changes to the Rule would avoid costs going to Parliament. If a Member published a Bill, and public comment indicated a serious flaw, the Member would have to republish this as a new Bill and the same costs would apply again. The publication should be facilitated through the Office of the Speaker, and the costs of re-publication should not be covered by Parliament. She was concerned if there were small changes, such as spelling errors, the Bill would have to submitted again as a new Bill. Her Office advised Members to consult before the Bill was published. The system was open to abuse.

Ms Marina Griebenow, NA Table Staff, did not think that Private Members should be financed by Parliament before the Bill was referred to a Committee.

Ms Kilian was concerned by Rule 243(1)(c). The NA Member would be tasked to solicit public views. The Memorandum must list all the persons consulted. Clearly a balance was needed regarding costs and the constitutional right of a Member to introduce legislation. Members should not be constrained by the costs involved. The Rules currently made provision for the Speaker's Office to carry reasonable costs. Financial liability could be used to frustrate a Member.

Mr Ellis said that if a party or Member was serious about an issue, and had some support, there were other ways of achieving the funding than through Parliament.

Ms Kalyan said that there was a danger that big industry players could sponsor a Bill.

Mr Ellis did not think that this was necessarily a problem. The Bill would still need support at Committee and National Assembly level to be passed.

Ms Kalyan repeated her concerns. Funds could be channelled to parties to finance private legislation rather than have direct sponsorship.

Ms Griebenow raised a question of ethics. There might be major problems if this were to be allowed.

Mr K Hahndiek said that Parliament did fund parties. An option would be to have Parliament repay the costs should the Bill be adopted.

Mr Xaso said that the Rules of Parliament made provision for this case. The Speaker would approve expenses before they could be incurred.

Adv van der Merwe said that the Parliamentary Legal Office would attempt to find a balance and revert to the Task Team.

The Chairperson said that it would be sad if Parliament had to encourage trivial legislation financially. Financial support should only be offered if a Bill met with the approval of the Committee. There might be a flood of private Bills. There needed to be a balance between the rights of Members and costs.

Mr P Hahndiek felt that only a Bill approved by Parliament should be supported. He felt that the Secretary of Parliament was a better option for the financing than the Office of the Speaker.

Mr K Hahndiek raised a related issue. On whether the Member introducing the Bill had to first consult the Executive, he did not think that this should be the case.

Adv van der Merwe said that the Committee should address the Executive on the content of the Bill.

The Chairperson said that Rules should stand the test of time.

Rule 241 Prior notice and publication of draft legislation
Adv van der Merwe had made a proposal on the introduction of bills. At present only the Executive had to give prior notice to the Speaker. Committees were not informed of a pending private bill, and could not budget their time for such bills. She proposed that a Member be obliged to submit an explanatory summary of the Bill to the Speaker, who would then refer the bill to the responsible committee.

Ms Kilian asked if policy was an Executive function. The reference to policy in Adv van der Merwe's proposal should be changed to providing the policy background to legislation.

The Chairperson said that any Bill should be based on current policy.

Ms Kilian said that there were not major policy differences between parties. While there were lunatic fringes in South Africa, the major parties were converging towards the centre. An amendment to the Children's Act had been driven by a DA Member because of a gap in the legislation, and was in fact in line with ANC policy. It was not correct to say that the motivation of private legislation was based on policy differences. The underlying policies should be described.

The Chairperson was excited that Members wanted to close the policy gap with the ANC.

Mr Xaso thought that this could be aligned with the Joint Rules, which spoke to allowing Members in Joint Rule 159 to align themselves with the intention of the legislation.

Mr Tshabalala said that it was clear that publication was compulsory. The use of 'if' should be deleted.

Rule 242 Notice withdrawing proposed legislation
Mr K Hahndiek said that in (2) the person intending to withdraw legislation should publish this in the Gazette. He felt that in the case of a Private Member, this should go via the Speaker.

Rule 243 Introduction of bills in Assembly
Mr K Hahndiek said that the current Rule was that Bills initiated by Assembly members or committees could only be introduced while the NA was in session, except in an emergency situation. Bills from the Executive could be introduced at any time.

The Chairperson felt that it would be fair if the same concession should apply to Private Members as well. This would not cause any disruptions.
Adv van der Merwe said that (1)(c) provided that a bill must indicate whether it was a proposed section 75, 76 or Money Bill. It was not for the introducer of the Bill to decide this. In the Tongoane case, the Constitutional Court had ruled that any Section 76 matters in a bill rendered it a Section 76 Bill. There was no longer the concept of a mixed bill as a result. If Parliament felt the need for a mixed bill, that process should be implemented and not remain suspended. She proposed that the mixed classification be scrapped. In the supporting memorandum, in the case of a Private Member, the legal opinion of the Parliamentary Legal Advisor was required to be included.  However, in the case of a Bill introduced by the Executive this had to go through the State Law Advisors.

Mr P Hahndiek said that there was still a lot to be done in terms of the tagging procedure. Section 74 bills dealt with the Constitution, and he thought that these could be mixed.

Adv van der Merwe said that a bill dealing with the Constitution could not deal with any other matters.

The Chairperson felt that (vi) was very useful. The proposal from the Parliamentary Legal Advisor should be incorporated.

Mr K Hahndiek said that the memorandum must be consistent with the Constitution. He suggested that the Bill should be in line with existing legislation.

Adv van der Merwe pointed out that in relation to Private Members, the list of consulted parties had not been a requirement. It was helpful to the Committee to see this list. This was in (1)(c) (iv).

Mr K Hahndiek said that the Executive had to consult widely, while a Member could be more selective. The Committee dealing with the Bill could have their own list of parties to be consulted. If the consultation was too narrow, the Committee could ask for more extensive consultation.

Ms Kilian had raised the issue earlier. Costs of consultation could be prohibitive. The obligations placed on a Private Member should be considered carefully. While the list of consulted parties was obligatory, it did not have to be comprehensive. A budget would be needed for wide consultation.

Ms Kalyan asked what the rationale was for this provision. The Executive had many entities at their disposal. A Private Member would have to consult the same people as consulted by the executive, and might not get a favourable response. She asked what threshold would be set, if any. She asked if it would be sufficient to attach a petition.

Mr K Hahndiek said that the obligation was not correct. The onus should be on the Committee to engage in consultation. Cost and political opinions might mitigate against consultation.

Adv van der Merwe read paragraph ( c ), which stated that the memorandum must contain certain things. Financial management legislation such as the Public Finances Management Act (PFMA) and Municipal finances Management Act (MFMA) required consultation with the Minister and fiscal authorities. If a Member was amending a Bill about, for example, the Auditor-General (AG), it would be simple enough to say that the AG had been consulted. The details of the consultation were not important for the purpose of the memorandum. Private Members could be excluded from this provision, or the requirement for consultation could be made discretionary. There should be some form of assessment. There should not be an impression that consultation was not allowed

Mr P Hahndiek said that the process of government was a political one. In the case of a PMB, Parliament needed to make an initial assessment of who had been consulted. This did not indicate that consultation was obligatory. Government might not need to consult on a technical amendment. A Private Member had a particular mandate, and might represent a specific constituency. If consultation had taken place, then this must be reported; but there should be no obligation to consult.

Mr K Hahndiek said that Parliament had the responsibility to engage with an Executive Bill. The Executive had their responsibilities but Parliament represented the whole of the country. He agreed that consultation should not be mandatory for a Private Member.

Ms Kalyan said that the identity of the consulted parties might indicate if legislation was really necessary. This was a critical issue, as it seemed to be a way of pre-judging a bill before its merits were considered.

Mr K Hahndiek said that if a Member wanted to convince the Committee of the importance of the issue, proper consultation would help to sway the argument in his or her favour.

The Chairperson said that wide consultation would strengthen the argument.

Rule 246 When First and Second Reading procedures are applicable
Mr K Hahndiek had noted a reservation about the term 'reading'. Before documents were printed, a clerk would read the bill in the House. There were distinctive stages in the processing of a bill, reflected by the first and second readings. The first readings was an assessment of the broad desirability of a bill. The second reading followed the committee deliberations and consultation. While the terms came from Westminster, many such terms were freely used in Parliaments worldwide that shared this origin and the terms were universally understood. He cited how the use of the title 'honourable' had at first been shunned by the democratic Parliament but was soon in widespread use again.

The Chairperson accepted the explanation. The first reading was about the principles of the bill. The second reading was about the detail of the bill, and this concept should be captured in the Rules.

Ms Kalyan asked about the first reading of a Private Member's bill, and the third reading in the House of Commons.

Adv van der Merwe said that Rule 247 would allow for all bills to have a first reading. A process was set out for the second reading, and did not specify if a debate would be held and how this would be decided. It seemed that most Members were satisfied that not all bills needed to be debated. She was not sure how this should be worded, but it was needed.

Ms Kilian said that some Members felt that the NA was not particularly relevant as all the detailed work was done in Committees. However, the purpose of the NA was to keep the public aware of the issues in front of Parliament. This was why there was live television coverage. It was not always a good practice to forego the First Reading debate. This was the principle about why a Bill was being introduced. The Second Reading debate must be on the "subject" of the Bill, but she was not sure what was meant by that. It might be better to refer to the detail of the Bill. There must be provision for at least either of the reading debates to take place. Members were now experiencing 'pressure cooker' legislation and this was leading to some sloppy practices. The Speaker had already pronounced on this. Due to pressure from the Executive, there was a move to further reduce debating time. This was wrong. Public participation models were becoming a different approach to legislation, but she feared that Parliament was losing out on its core business. Parliament should return to the core business as mandated in the Constitution. A Bill should achieve its purpose, and this would not guarantee success in this regard. The British House of Commons sat regularly until midnight, with a quorum.

Mr K Hahndiek agreed that proceedings in the House were critical. There was a temptation to shift the emphasis away from the House. The media were often no longer interested in a Bill by the time it came to the House due to exposure during the committee phase. In many cases Bills were not debated properly due to work overload, and in some Parliaments strict deadlines were introduced to get bills processed in good time. On the second reading, there was a limit to the scope of the debate. He recalled a debate that had been all about what was not in the Bill. Debates should be managed by the Speaker to prevent such occurrences.

Mr K Hahndiek said that the first reading debate was to make Members aware of the contents and focus of the bill before it went to the Committee. Members tended to follow a 'silo' approach, concentrating solely on their specialist area. Members should be aware of the totality of the business of Parliament. The first reading debate served to provide this background. Great detail was not needed in the first reading debate. Members had been given three minutes to speak, with a wide variety of speakers. This practice had only lasted for a year. He understood that first reading debates were now the exception rather than the Rule.

Mr K Hahndiek said that the first reading debate had been followed by the second, followed by a committee comprising the whole House. After that there would be a third reading debate to assess the result of the deliberations. This concept had fallen away in South Africa.

The Chairperson raised the issue of the introduction of a Bill. There might be time pressure on the scheduling. First reading debates were an opportunity for Ministers to introduce their Bills, rather than slip them quietly into the Committee stage. There were not so many Bills coming to Parliament as to exhaust Members. He was satisfied with first and second readings, although the perception of a second reading was often thought to be the debating on a Bill in the NCOP.

Mr Ellis agreed with the Chairperson. Members had indicated the need for more question time in the House. Over the years there had been a determination to cut back on the number of hours spent in Parliament. There had been agreement on a basic schedule, and this had been the reason for first reading debates being neglected due to pressure of time. There was an unhealthy culture in Parliament. It was a pity that the House now only sat until 6pm. Parliament no longer had the opportunity to do its work properly. In many aspects the members of the Task Team were recommending longer hours for Parliament in order to do justice to its work.

Ms Griebenow said that Parliament used to sit from a Monday morning until 10pm on most nights. Parliament had been vibrant, and had got through a lot of work. People might have their household responsibilities, but had to do the work expected of them.

Ms Kilian said that there was a trend for Executive to make announcements at media conferences rather than in Parliament. The public was starting to consider Parliament as being irrelevant. The idea of a spontaneous debate was a good one. People were reading prepared statements rather than engaging with issues. The use of vernacular should be encouraged. She asked if EPCs could be held on a cluster basis. First choice was the to debate legislation in the NA, but the EPC concept would be a good alternative. Ministers should make their announcements in the House first and to the media thereafter.

Mr P Hahndiek said that the NA would schedule the second reading and the first, but the first was done on the request of the Minister. The NA should have the power to insist on a first reading. It did not seem quite right that this was totally up to the Minister.

The Chairperson said that the problems with quorums was the result of the culture being described. It could happen that the NA only sat once a week. The Rules must insist that the working days of Parliament should be from Monday to Friday. However, all Members knew that it was virtually impossible to have a Committee meeting on a Friday. Parliament should have the right to request a Minister to present a bill in the House. Some creativity should be taken from the Extended Public Committees (EPC) process. This was used during the budget phase, but could be used successfully for other business. Parliament could not be allowed to become irrelevant. Portfolio Committees were the nerve centre of Parliament. The NA should be the centre for discussion. The authority of Parliament should be reassessed. It would be difficult to restore the levels of discipline formerly displayed by Members.

Ms Griebenow said that in the original Rules a number of clauses had covered leave of absence. These could no longer be enforced. There must be an appeal to the next Parliament to eliminate the dead wood so that the clause on leave of absence could be enforced. Fines were needed to put some muscle into the Rules. The public had a perception of an absentee policy.

Ms Kalyan said that an attendance policy was being developed which should be enforced by the end of 2013. Members had been opposed to financial sanctions, and attendance should be managed by parties. The attendance policy would be adopted on 12 November.

Mr K Hahndiek understood that the Portfolio Committee decided if there should be Second Reading debate. This did not sound right. This debate should be a requirement unless there were exceptional circumstances. Perhaps Committees felt that there was nothing more to be said in the House after months of engagement. It was a strange practice that once a debate was concluded that the long title of the Bill was read. In emotional debates, when the Secretary read a Bill, there was often an emotional response.

Mr Tshabalala said that it might be better not to be over-prescriptive. He asked if there was a need for a process for the Committee to determine the desirability of having a final debate in the National Assembly.

Ms Kilian asked if the Task Team would be bold enough to adopt the guidelines given by the Parliamentary Law Advisor. The First Reading debate would allow the Minister to speak for up to fifteen minutes in introduction, with Members being given about three minutes to react. She asked if the introduction of the Bill could be made to coincide with the First Reading. She was of the view that sanctions for absenteeism were justified. The Constitution made rules for people to be held accountable. Once again, a nasty but important decision was being deferred to the following Parliament. This Parliament should not be known as one that wasted taxpayers' money.

The Chairperson did not think that the first reading and the introduction of the Bill should be conflated.

Mr K Hahndiek agreed that the procedures should be separate. If the House was not in session, then the introduction should be deferred until the next session.

The Chairperson felt that the Minister should introduce the Bill in a First Reading. The guidelines were in place. Members would be given the chance to react. A lot of time was being wasted by Members' statements. These were often not attended by Ministers. Parliament should have its own management mechanisms.

Ms Griebenow agreed on the need for an introduction a Bill by means of a First Reading. Where there were technical terms, the Members' responses could be deferred.

Mr P Hahndiek said that the procedure would have to be specified. He asked what collective of Members would decide if there would be a First Reading and to which Committee it would be referred. Some cooperation was needed with the Executive.

The Chairperson said that it would be good for the Minister to introduce the Bill, but a Deputy Minister could do so as well. The existing Rule could be retained, or a new Rule could be moved.

Mr K Hahndiek said that if too much discretion was allowed, the procedure would follow the same path. The current Rules allowed for the Bill to be deemed to have been read the first time.

The Chairperson said that in most parliaments, the Ministers were given the space to introduce Bills. Parliament would then decide on the date and further process. Currently, anything controversial could be slipped through the system.

Mr P Hahndiek said that the onus lay with the minister. Ministers were often poorly advised.

The Chairperson said that it was the duty of Parliament to insist that Bills be introduced. Too many Bills were allowed to come quietly.

Afternoon session

Rule 247 Procedure when Assembly in session
Ms Kalyan asked if the Task Team wanted to include anything about the tagging of a Bill in this section. There were situations where a Committee had completed its discussions on a Bill but the tagging of a Bill had not been completed.

Senior Parliamentary Legal Adviser, Adv Charmaine van der Merwe, said that tagging had become very difficult and it was no longer just about the long and the short title of the Bill. The briefing by the Department on public hearings had opened up issues that it was not easy to have a classification ready by the time of introduction. Tagging was a bit of a hot potato and she did not recommend that it should be done at the onset. Committees could proceed with discussions on the Bill and although it was true that the nature of the Bill affected the extent of Committee work, that aspect should not really be the test because each House operated separately.

The Chairperson said that the Task Team had completed Rule 247, saying it had taken longer because it concerned many outstanding issues about the making of laws and its challenges. Those were all exhausted now.

Rule 248 Procedure during recess
The Chairperson said Rule 248 was a procedural matter only. 

Adv van der Merwe said that the Parliamentary Legal Advisers had no issue with Rule 248.

Rule 249 Process in committee
Adv van der Merwe said that the Constitutional and Legal Services Office was proposing the number of interim rules be increased. She proposed that plain language be used to increase understanding of the Rule. The Doctors for Life case indicated that the content of a Bill determined the level of involvement required. Rule 249(1) could be amended to reflect that sentiment. In terms of Rule 249(2), the Committee had to facilitate public involvement. The use of the word “may” referred to the manner in which that may be achieved, but there was a risk that it might be interpreted as a discretion on whether to facilitate public involvement at all. On Rule 249(3), she asked why with an Amendment Bill, the Committee had to seek permission to inquire into amending other provisions of the legislation. If it was because of policy implications, would it not mean that Committees had to also request permission for additions to Bills that did not amend an Act? This rule could be interpreted to mean that there was a discretion whether to ask permission and that was not the case. She said Committees had expressed uncertainty whether they had the right to consult any other committee from either House that had a direct interest in the substance of the Bill. Other technical proposals were included in the document providing general explanatory notes and inputs from CLSO.

Ms J Kilian (COPE) said that it was important to make sure that process were followed. The process greatly depended on Chairperson. Not following process, could put Parliament at risk as one ended up with Parliament getting negative media reports and being embarrassment because the process was found to be wanting. A clause could be inserted in the Committee phase of the process to make clear, distinct differentiation between the different processes. Speaking from personal experience, there were several dangers in being careless. Some members of the public were watching and looking for weaknesses in the process to exploit this. Parliament could not afford that, so it procedures had to be well defined. Her proposal was that Committees must have clear distinction between the different processes. She had experienced a situation where a Committee was having only broad discussions on a Bill when all of a sudden, the Chairperson ruled that Members had to do a clause by clause vote on the Bill. This opened Parliament to litigation.

Mr M Booi (ANC) said that this was part of the discussion on public participation and if the facilitation of public involvement was not included, Committees were going to be left with the discretion to either do it or not. He supported Ms Kilian’s proposal and further suggested that the word “must” had to be included in the rule to indicate that public involvement was mandatory. This was going to assist both the Chairperson, Members and the public.

Mr K Hahndiek said that there existed a rule which was applicable to all Committees that they must facilitate public involvement. Since this was covered in the general rule, was there any need to include it in the specific rule.

Mr Booi replied that it was important to include it in the specific rule especially looking at Constitutional Court decisions. However, the legal team and drafters were present and could help the Task Team on this.

Adv van der Merwe said that she agreed with Mr Booi that it had to be included. Committees had always asked if they really had to have public involvement on certain Bills. It was very clear that public involvement had to be facilitated. The question was how to go about the issue of discretion. It was clear that the facilitation of public participation was a must. The fact that, despite it being in the general rule, the question was still coming up, indicated that it needed to be put in the rules here. Committee Members always looked at the rule in front of them and that was what they focused on.

The Chairperson said that the principle was acceptable. It was a general rule that study groups consulted between the two Houses but in terms of the Rules it was appropriate to provide for Members in the NCOP to consult with their colleagues in the National Assembly. This was going to facilitate the process of law making.

Adv van der Merwe referred to Rule 249(4) and said there were no more mixed Bills due to the Tongoane case. The proposal was that Rule 249(4) be suspended until the proposed procedure for mixed Bills was implemented.

Ms Kilian supported the proposal. She recalled a Bill where the Minister had brought an amendment for the House for approval.  She had refused to consider it. It was important for Bills to be completed entirely in the Committee before they were adopted in the House.

The Chairperson said that once a Committee had adopted a Bill as amended, that was the end of the Committee process. At that point, public participation was no longer possible.

Mr K Hahndiek said that after the public participation process, the Committee had to deliberate on the Bill. Public participation did not last throughout the legislative or committee process.

Rule 250 Referral to Assembly committee if joint committee fails to report
There were no comments or questions on this Rule.

Rule 251 Committee’s report
Mr K Hahndiek said that in terms of Rule 251(1)(b), the Committee to which a Bill was referred must table in the Assembly the Bill that had been agreed on by it, or if it had not agreed on a Bill. There was no question in terms of the Rule and the Constitution as well, that if a Bill was presented to a Committee, the Bill was presented to Parliament. It was Parliament which was ultimately going to take a decision on the Bill. A Committee Report could not be adopted in place of the consideration of the Bill by the National Assembly.

The Chairperson replied that there was general understanding on this point and it did not need to be emphasized.

Ms Kilian said that what Mr K Hahndiek was saying was very true and she did not think that there was a general understanding on the issue. She believed that the process followed in the past on Private Member’s Bills was not correct.

Mr K Hahndiek said that it was important to include in Rule 251 that in the case of Committee and Member Bills, the Committee Report had to state the view of the executive on the principle of the Bill.

Ms Kilian supported the proposal.

The Chairperson said the proposal was a very helpful one.

Adv van der Merwe said Rule 251(3)(e)(ii) had to be made clear as it often came up in committees. The Committee Report was not a minority report.

Mr K Hahndiek replied that part of the problem was the wording as the Rule had to state that it was in addition to the majority report. He agreed that the current wording of the Rule had to be clarified.

Ms Kilian said that this was one of the holy cows which were not supposed to be touched.

Ms S Kalyan (DA) agreed with Ms Kilian.

Ms Kilian said that including a minority report reflected the essence of a constitutional democracy. Looking at the Constitution, it was explicit and compulsory that the views of minorities must be included. She agreed with Mr Hahndiek that the Rule could merely say “in addition to the majority” and that was simple because it was a majority report. However, it was not necessary to go into the detail. Often only a paragraph was used to capture and explain what the principal objections were by the minority. It was basically a paragraph. The provision was also important for a governing party because if members of the opposition did not do their committee work, then it would be reflected and exposed in the report. The opposition was not recorded where it mattered and that was in the committee process. This was going to compel the opposition to also do its work and not merely oppose for the sake of opposition. She felt that the principle of the Rule did not need to be changed. Touching that Rule was like playing with a red flag before a bull.

The Chairperson said that the approach in the Rules was to be fair and open-minded.

Mr P Hahndiek asked if it was proper to group all the minority views together as there could be a situation where the minorities were not agreeing to the same thing.

The Chairperson said that this was a point that had to be worked out. It was also important to work out the problem where as a Committee there was agreement but during discussions in the House, opposition Members started declaring things differently from what was agreed on in the Committee.

Ms Kilian said that the principle was that the majority ruled but the minority must have an opportunity to express itself. This was clearly enshrined in Section 57(2)(b) of the Constitution.

The Chairperson said that there was no disagreement on the principle so all that had to be done was for the legal team to find a better way to draft the Rule. A Committee Report was a majority report.

Mr Booi said that it was important to remember the guidance of the Speaker on how Members and Committee should handle issues in the House. There was need to uphold democratic principles and it was the duty of every Member of Parliament to recognize the role of parties in Parliament.

The Chairperson said that it had been agreed that the Rule was going to be reworked and he believed that the legal team would be able to properly draft the Rule. He called on the Task Team to proceed with the discussion on the other Rules.

Rule 252 Explanation of report / Rule 253 Second Reading
The Chairperson asked if there was any comment on Rules 252 and 253.

On Rule 253, Ms Kilian said she believed that the Task Team had had lengthy discussions on the requirements for debates on legislation. It had been discussed that the executive should actually introduce the Bill in the House so that the public could know about it and also to make Parliament relevant. She wanted to argue that if the Committees and Parliament were really serious about their primary function as legislators, then it was an important opportunity to have a Second Reading. The length of the debate could vary depending on the nature of the Bill. Rule 253(2) provided that the debate on the second reading must be conducted on the subject of the Bill. It did not say the Second Reading must be conducted but that when it was conducted, it had to be conducted on the Second Reading of the Bill. It was like saying you must drive on the left hand side of the road. It did not mean that you must drive, but when you drive, it must be on the left hand side of the road. That described it well. The point was that either the Rule should be reformulated to say what they meant or it should be made very clear that the Second Reading be done if there were good reasons for it. Something of this nature would be helpful. She proposed that there should be a compulsory Secondary Reading. If not, the Rules had to stipulate what it meant to have a Second Reading Debate on the subject of the Bill.

Mr Booi said that he agreed with Ms Kilian that there was a need for the Rule to be very clear. It could seem like a technical issue but it was not. It had a lot to do with the content and substance of the Rules. The Second Reading and allowing Members to give more insight on policies, was very critical. If this was not done, the Rules were going to go with the general notion that the voices of the minority and opposition were being suppressed.

The Chairperson said that the legal minds and wordsmiths of the Task Team would work on it as they knew how to phrase it appropriately to bring out the meaning of what was intended.

Rule 254 Amendments proposed by members before decision of Second Reading
Adv van der Merwe said that Rule254(1)(a) was very important and had to be stated clearly.

Mr K Hahndiek said that this Rule had been discussed by the Task Team before. The Rule dealt with the circumstances under which amendments to a Bill may be considered before decisions on its Second Reading. This was intended to ensure that Members did not take a second or third bite at the amendment process. This was based on the understanding that the amendment had been extensively debated in the Committee. This was why the Committee Report had to reflect all the amendments which had been accepted and rejected.

Ms Kalyan said that she accepted that the process could be open to abuse and there was the need to guard against that. However, there was a need to be cautious about it because sometimes flexibility was very important and rigidity actually frustrated the process.

Rule 255 Referral of amendments proposed in Assembly to Assembly committee
Adv van der Merwe asked if the Committee should not be allowed to approach the National Assembly for permission to consider another clause. In terms of Rule 255(1)(d), the Rule was specifically tied to sub-rule 2 and Rule 257(1)(b). However, she asked if the Committee should not also report on amendments proposed by other members that placed amendments on the Order Paper. On Rule 255(3), Adv van der Merwe said due to the Tongoane case, there was no need for mixed cases.

Rule 256 Referral to Assembly committee if joint committee fails to report
No comments were made.

Rule 257 Consideration of Assembly or joint committee’s report
The question posed was why were amendments proposed by Cabinet Ministers and Deputy Ministers treated differently from other amendments.

The Chairperson said that the suggestions and proposals were straightforward and did not require a lot of discussion. He asked if there were any comments or questions but there were none.

The Chairperson explained that the Committee had now reached Part 4 of the National Assembly Rules which dealt with Rules applicable to Constitutional Amendment Bills. These Rules related to the matters raised in Parts 1 and 2. The Task Team had already discussed and deliberated those parts. He called on Adv van der Merwe to quickly take the Task Team through the CLSO proposed revisions in Part 4.

The Rules covered by Part 4 were from Rule 258 up to Rule 267.

The Chairperson said that the matters remaining were not many and were mostly procedural matters. Thus it would be a good idea if the Task Team invite the Deputy Minister of Justice, Mr John Jeffery, to come in and assist with the procedural matters related to the motion of no confidence. This was not going to take long because the decision had already been made and it was only to ensure that the procedures were correctly stated in the Rules. He asked Mr P Hahndiek if it was possible to get Mr Jeffery to attend the next meeting.

Mr P Hahndiek replied that there had been a lot of discussion on the motion of no confidence and there were many officials who understood the process. His concern about inviting Mr Jeffery was that since it was only one weeks’ notice, he may not be available. However, if Mr Jeffery was not available, another person could be found to brief the Task Team.

The Chairperson said that anyone could brief the Task Team as it was no longer really a debate. It was merely to confirm the procedure and the process.

Mr Mike Ellis asked that once that was dealt with, what was the procedure thereafter.

Ms Kilian suggested that since the next meeting was going to coincide with 8th November 2013 National Assembly sitting, could the Task Team not shift the meeting to the next week and work on the 14 and 15 November. It would also provide time for CLSO to properly draft the revised Rules and incorporate all the proposals.

The Chairperson replied that the idea was a good one but it was important for the Committee to meet as planned to finalise the revision and the motion of no confidence. These were Rules which had already been finalised and it was not going to take long. It was important that the entire document was appropriately cleaned before the formal submission to the Sub-Committee on Rules. He thanked all the Members and the staff for their participation.

The meeting was adjourned. 


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