Financial Sector Regulation "Twin Peaks" Bill: re-consideration

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Finance Standing Committee

15 June 2017
Chairperson: Mr Y Carrim (ANC)
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Meeting Summary

The Finance Standing Committee convened urgently to look into re-considering the Financial Sector Regulation "Twin Peaks" Bill. This was an attempt to follow the necessary processes when adopting the bill.

Much of the meeting revolved around the detailed briefing by the Parliamentary Legal Adviser, in which he attempted to explain the issue at hand which had resulted in the need for the meeting. Referring to a legal opinion letter that had been distributed to the Committee, he said that rule 286 stated that the Standing Committee on Finance had to formally adopt the amended Bill. However, since the Committee was working with rule 307, 308 and 309, which did not require a formal adoption of the Bill, this would not be necessary. He pointed out that in the legal profession, if the rule did not deliberately state that formal adoption of the Bill was required by the Standing Committee on Finance, then it was not required.

The legal adviser concluded that the Committee had followed the rules exactly. The issues which had surfaced were merely a matter of practice, and not rule. He continued that decisions had been taken at a certain level and that he would not be the one to say if those decisions were right or wrong.  He assured the Committee that the he and the team from National Treasury had done all in their power to ensure that all was in compliance.

 This briefing resulted in a discussion during which the DA clarified its stance on the issue at hand, and conclusively reserved its position to adopt the resolution which the Committee had formulated concerning the adoption of the C-list version of the Bill. 

Meeting report

Opening Remarks
The Chairperson welcomed all who were in attendance, and thanked Ms T Tobias (ANC) and Mr S Swart (ACDP) for chairing the previous meeting which he could not attend. There had been a lot of confusion as from 10:05am till the time of the meeting, and he had been deliberating on what the issue at hand was specifically about. He said that if some committees did not abide by the rules and norms of Parliament, the Standing Committee on Finance was not obliged to do the same. An example was drawn from an instance when Members had been allowed to take part in public hearings the day before a meeting. Even though this allowance was not a rule per se, it nonetheless remained consistent with the notion of popular democracy.  However, he declared that the Committee could not impose this on another committee. As a result, he called on Adv Frank Jenkins, Parliamentary Legal Advisor to explain to the Committee what the issue was.

Briefing by Parliamentary Legal Advisor
Adv Jenkins said that the issue was whether the Committee was advised to formally adopt the D-version of the Bill. The D-version of the Bill was the version the National Assembly (NA) had passed and sent to the National Council of Provinces (NCOP). Proposals had come back and the Standing Committee on Finance had accepted some them and changed others, which had resulted in a C-list version of the Bill. The D-version was the B-version of the Bill which the C-list had acquired in order to have a new version of the Bill. The question was whether the Committee should formally adopt the new version of the Bill clause by clause, or on page by page basis.

He referred to a legal opinion letter that had been distributed to the Committee. The Committee was obligated to report and to formally adopt an amended version of the Bill in rule 286, which was the Bill that had been introduced to the NA. In other words, the NA had not yet adopted the version of the Bill. He further clarified that this rule did not apply to the version of the Bill that had been viewed by the NA, sent back to the Standing Committee on Finance and then back to the NA for reconsideration of the Bill. He said that this was his reading of the Bill.

Rule 286 said that the Standing Committee on Finance had to formally adopt the amended Bill, but since the Standing Committee was working with rule 307, 308 and 309, which did not require a formal adoption of the Bill, this would not be necessary. He said that in the legal profession, if the rule did not deliberately state that a formal adoption of the Bill was required of the Standing Committee on Finance, then it was not required. He mentioned this in light of what the Chairperson had earlier alluded to -- on how committees differed in practice. Other committees would do the formal adoption of the D-version of the Bill, but this was by no means a rule. The formal adoption of the Bill by the Committee would be good practice, but should not be understood as a rule or requirement.

In the case of the Financial Sector Regulation (FSR) Bill, Adv Jenkins explained that the final version had to be considered as a result of all the typographical errors and amendments that had been done. This was an attempt to ensure that all the information was correctly captured. This corrected version had been considered on the Wednesday evening and had been distributed to the Standing Committee on Finance on the Thursday morning. If some Members were concerned that this version was only “served to the Committee on Thursday, then there was a (counter) argument, as it was actually served to the Committee on Wednesday”.

He said that he went through the FSR Bill in the early hours of Thursday morning in order to review the amendments that had been made in order to have it sent by the time of the Committee meeting. He highlighted how this process was merely a matter of practice, and not ruling. There was a legal reason for why he had interpreted the rule as he had done. He elaborated on how rule 306 and rule 308 clearly stated that the Standing Committee on Finance could strictly only review the proposed amendments made by NCOP. If it was said that there must be a formal adoption of the whole D-version of the Bill, it implied that the Standing Committee on Finance could adopt or reject some of those clauses, but the rules did not give such authority to the Committee. The Committee could not simply say, “there was something that the NCOP did not look at and we do not like this, so let us take it out”. He reiterated that the Committee could not, by any means do that.

This strengthened the legal argument which proposed that the Committee had to adopt the C-list version of the Bill and send it to the NA as required by the rules, and by the D-version of the Bill. When one viewed rule 3 and 9, the NA then reviewed what the Standing Committee on Finance and the NCOP had deduced on the amended version of the Bill. The NA considered each of the issues which had been amended in the Bill and only thereafter approved the D-version of the Bill as a whole.

Adv Jenkins concluded that the Standing Committee on Finance, in this context, had followed the rules exactly. The issues which had surfaced were merely a matter of practice, and not the rule. Decisions had been taken at a certain level and he would not be the one to say if those decisions were wrong or right.  He assured the Committee that the he and the team from National Treasury had done all in their power to ensure that all was in compliance.

Discussion
The Chairperson said he had been told that at a meeting earlier, Adv Jenkins had said that the Standing Committee on Finance had not done its work on the D-version of the Bill. He wanted to know if this was indeed what Adv Jenkins had said, or not.

Adv Jenkins said that this was not correct. What he had heard from his colleague was that the Democratic Alliance had raised the point that it disagreed with the advice which stated that the Committee was not required to review the complete Bill, and only had to reconsider the amendments made by the NCOP. 

The Chairperson interjected that Adv Jenkins needed to say what had to be done.     

Ms Tobias said that she was disappointed, because she had chaired the meeting to which Adv Jenkins referred. They had left the meeting feeling that they were in unison, and there was no mention of the Committee overlooking practice beyond the rules. It was made clear that once a report had been finalised, it meant that the Committee had concluded the process of the D-version and the C-list. She said the report that was due to the Committee was that from the DA, which had sought to reject consideration of the Bill without a fundamental reason. There had been no issue at all with the consideration of the amended Bill, as it had already been discussed and was already available. She said it had not been necessary to postpone the presentation in order for the Committee to meet concerning this matter instead.

Ms D Mahlangu (ANC) said that she was rather confused, as she had the same understanding as Ms Tobias. This was the reason why she had sent an sms to the Chairperson, asking for the agenda of the meeting of the day before to be amended, as there was an issue that the DA had raised. During the meeting, this issue had been discussed in about 30 minutes. All the members of the Committee had left the meeting under the impression that everyone was fine with the issue that had been raised. However, she understood that though Mr R Lees (DA), who attended the meeting, might have understood the feedback given on the issue at hand, maybe his party had not understood. Her view was that the DA wanted to delay the finalisation of the Bill, but she stood to be corrected. She proposed that there should be no further delay and that it should be finalised, since the Committee had already voted on the Bill. She sought clarity from Mr Lees as to why the Committee was in this situation.

Mr Lees said the short answer to this question was that the Portfolio Committee had decided to meet, and that the decision had absolutely nothing to do with him. The DA did not want any procedural problems. As a result, it had been suggested to him that the Committee meet in order to ensure that there would be no such problems. He was not a lawyer, and simply asked questions which were responded to in great detail.

Mr D Maynier (DA) said that the meeting that morning was to ensure that all Committee Members were satisfied with all the amendments -- that was all.

Chairperson contended that it was not the Portfolio Committee that suggested that there be a meeting on this issue, but instead it was the DA.

One of the Committee Members said that this was unheard of, and that the rules did not permit the Committee to do this. The chief whip had said that the Committee should have gone ahead with the process, but he had decided that in order to avoid unnecessary vacillating, the matter had to be reconsidered. He stressed that the Committee had to vote on this issue next week in order to prevent a seven to eight-week delay in the process, as Treasury would have its first sitting on 3 August, 2017. Treasury had its regulations ready and wanted to start adopting the Bill immediately. The Bill had been with the Committee since October 2015, and all the battles of the DA always seemed to be at the last minute. When he had found out on Thursday morning about the Bill, he had contacted Mr Maynier and asked what had to be reviewed with the C-version of the Bill in order to prevent the process from being delayed, like in the past.

He said a resolution had to be adopted, as this matter would go back to the Programme Committee. The first one was that in terms of Parliamentary rules, it was not necessary to vote on the Bill, unless these rules changed. Secondly, ideally a D-version of the Bill should be made available to Members 48 hours before it was voted upon, unless if there were circumstances which prevented this. He asked what those who wanted the D-version of the Bill want to do with it, as they had already voted on it.

Mr Lees (DA) said the Chairperson was putting him in a category where he did not belong, as he did not want to table it. He simply wanted the process to be as accurate as it should be. He did not want the D-version of the Bill to be voted upon again in any way.

The Chairperson said that this was not the question -- the question was about tabling or reconsidering the D-version of the Bill again.

Mr Lees said that he was glad that the Chairperson was being recorded and that one could always refer back to the recording in order to prove what he had asked. The point he was making was that this was a really important Bill, and he simply wanted to know whether the Committee was sure that it did not have to reconsider the whole Bill.

The Chairperson said that it was important, and he wanted to understand the reasoning behind this concern and not necessarily the view.

Mr Maynier said that Adv Jenkins had explained that what happened despite all the checking, like in the first section when the adopted Bill had been voted in, it became law. He was uncertain whether he could go through the Bill word for word in 48 hours. This was a discussion he had had personally with Adv Jenkins. It could be said in the resolution that a Bill that had a certain length could be adopted over a longer period of time. Perhaps this was the motivation behind the issue raised by the DA.

Chairperson exclaimed that it was no longer about the Committee. He said the Committee would not require the Bill to be served, and he had checked if all the amendments it had made were present in the D-version of the Bill. He said the Committee’s reason for this stance was because after one voted on a long Bill, one had to give oneself at least three to four weeks to go through it.

A request had been made to him that the Committee come up with guidelines on this matter. These guidelines were that the Standing Committee on Finance should vote as usual on the C-version of the Bill and not the D-version, unless a Member drew attention to a missing detail. He asked if the Committee accepted this first guideline.

Ms Tobias (ANC) objected, and said the Committee would not take responsibility for the mess that the Programming Committee had made. If the Programming Committee wanted to suggest that when the D-version was served to the Standing Committee on Finance, the Committee ought to vote on the C-list instead, it was not the Standing Committees on Finance’s problem. The Programming Committee must justify why it wanted the process to follow such a procedure. She was not willing to craft a response as to why the Standing Committee believed that the Programming Committee had made a mistake when it embarrassed itself by not checking the rules. She was not apologetic, as good practice was informed by certain principles -- principles which were not evident in the process of the Programming Committee. Furthermore, they had to take responsibility for this mess. If any resolution were to be made, she would simply walk out of the meeting.

The Chairperson asked Adv Jenkins if he could help to get the Bill on the agenda of the next Presidential address.

Adv Jenkins said that he could do so.

Mr Maynier said that it was clear that the Programming Committee had been wrong. He added that he disagreed on the period given in order to review the amendments, as it was not a word-for-word check. 

Chairperson said that this indeed was the case, but the issue here was more about the Programming Committee wanting the D-version of the Bill to be voted in.

Mr Lees said that what would become an issue was that the Bill had not yet been distributed, as it was not in the pigeon hole.

The Chairperson said this was not a problem only for the Standing Committee on Finance, but for all committees, as these documents were now made available by means of websites. The aforementioned resolution had been tabled for adoption.

Mr Lees said he could not adopt the resolution to change the rule.

Chairperson clarified that this was not an adoption to change the rule, but was a means of adopting the aforementioned resolution, which was also to be given as part of feed back to the Programming Committee.

Mr Lees (DA) insisted that he would not adopt this resolution.

Chairperson said that his decision not to adopt the resolution would be noted in the records. He clarified that the records would state that the DA reserved its positions on the matter.

The meeting was adjourned.

 

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