Joint Subcommittee on Delegated Legislation - Report on Methods For Scrutiny of Legislation by Parliament

Meeting report

JOINT SUBCOMMITTEE ON DELEGATED LEGISLATION
11 April 2000
REPORT ON THE METHODS FOR SCRUTINY OF LEGISLATION BY PARLIAMENT

Documents handed out
Report on the Methods for Scrutiny of Legislation by Parliament (March 1999)

Chairperson: Ms Setona

SUMMARY
Prof Hugh Corder, in his capacity as a consultant, presented his report on methods for scrutiny of delegated legislation by Parliament. The report's provides a comparative study of legislative systems which share, to some degree, constitutional antecedents with South Africa. The comparative models were the United Kingdom, Kenya, New Zealand, Australia and Canada. The report recommends a set of principles for adoption as a framework within which to develop this vital aspect of Parliament's work.

MINUTES
Ms Setona, the chairperson, alerted the committee to the unavailability of the NCOP component of the Joint Subcommittee on Delegated Legislation due to other important commitments.

Prof Corder informed the committee that the report is a culmination of the requests made in 1998 for this research. He referred members to the terms of reference in the Report in order for them to understand the limits and the scope of the report as it relates to the scrutiny of legislation by Parliament.

Prof Corder advised the members to pay a particular attention in the Report to the constitutional provisions for a scrutiny mechanism as they are the crux of the report. The constitutional authority for a scrutiny mechanism is to be found in the following sections of the Constitution: section 55(2) of the Constitution for national and sections 114(2), 133(2) and 140(3) and (4) provide parallel provisions in respect of provincial government.

Turning to his comparative models, i.e. United Kingdom, Kenya, New Zealand, Australia and Canada, he said they have proved his suspicions that there is quite a degree of common practice in the legislatures of the world. His understanding that South Africa shares with them some elements of constitutional past, given the common Westminster heritage has led to the choice of these countries for comparison.

The following elements seem to form critical parts of any parliamentary system in its scrutiny of delegated legislation:
the granting of authority by Parliament to the executive to make law must comply with the Constitution (especially the Bill of Rights) and accepted principles of good governance;
the act of tabling delegated legislation in Parliament provides the basis for any form of scrutiny and should be a general obligation on the maker of such law;
some further form of scrutiny by Parliament should occur which should not unduly hamper the lawful pursuits of executive government; and
Parliament should retain the power to disapprove a part or the whole of any piece of delegated legislation

The report suggests that given the South African Constitution, the above elements should be expressed as follows:
that an effective scrutiny mechanism ought to pre-empt most potential challenges to the constitutionality and lawfulness of the content of legislation, thus saving the State's future expenditure in terms of time, effort and legal fees;
that no scrutiny mechanism should seek to provide the final word on questions of legal validity, but rather raise concerns about possible shortcomings in this respect; and
that any scrutiny mechanism should endeavour to be non-partisan in a party-political sense, and not unduly delay the legislative process.

Prof Corder was much impressed by the general features of the approach adopted by Australia, New Zealand and Canada. South Africa's constitutional circumstances lend themselves to the implementation of such a scheme as used in Australia, New Zealand and Canada. Against this background, the Report proposed the following:
A joint committee (somewhat like the Committee on Members' Interests), on which all parties in Parliament have some representation, should be formed and charged with scrutinising all legislation against constitutional and administrative law standards.
This committee that Corder is proposing should meet frequently (perhaps weekly during session), but briefly, to consider the views of an adviser who has reviewed all draft legislation tabled since the last meeting of the Committee and compiled drafts assessments of its compatibility with the Constitution and applicable law, and to confirm, vary or reject such advice.

Prof Corder suggested that once the Joint Subcommittee has had the opportunity for further deliberation of the report, especially on the recommendations and issues raised in it, additional work will have to be carried out with a view to the practical implementation of the steps proposed.

Discussion
Mr. Cassim (ANC) asked Corder to indicate the way forward. The committee chair, answering the question herself, suggested that it is the committee that is required to make recommendations on the way forward. She asked if Parliament has the power to disallow or is it only about making recommendations.

Prof Corder responded that presently in the context of South Africa, there is a grey area. He agreed that the international norm does allow disallowance. However, Corder warned that such an allowance of disallowance could sometimes lead to a confrontational relationship between the executive and the legislature.

Mr de Vos (DP) asked for Corder's advice in dealing with the 'sunsetting'. Corder responded that all delegated legislation, at some point in time, dies out. That is, when dealing with sunsetting, one is dealing with the time frame. He gave an example of North West Province and Gauteng saying that they have 'sunsetted' all their delegated legislation since 1994. Prof Corder admitted that that is a huge task.

Mr de Vos asked if delegation does apply in all cases. Corder said, it is not in all cases, therefore, the applicability of delegation will need to be carefully assessed.

Mr. Mkhize raised his concern about what he termed 'the fertile ground' for duplication - there is a law commission, state advisers, parliamentary committees, and other institutions performing oversight.

Prof Corder replied that the growing number of institutions that are dealing with oversight actually assist in boosting the accountability of the executive to the civic society at large.

The meeting was adjourned.