Subcommittee on Delegated Legislation; Oversight & Accountability

Joint Rules

06 June 2000
Share this page:

Meeting Summary

A summary of this committee meeting is not yet available.

Meeting report

SUBCOMMITTEE ON DELEGATED LEGISLATION AND ON OVERSIGHT AND ACCOUNTABILITY

SUBCOMMITTEE ON DELEGATED LEGISLATION AND ON OVERSIGHT AND ACCOUNTABILITY
7 June 2000

Documents Handed Out:
Report on Parliamentary Oversight and Accountability
Final Report on Methods for Scrutiny of Legislation by Parliament

Chairpersons: Mr Setona and Mr Suka.

SUMMARY
Professor Corder, Law Faculty Dean at the University of Cape Town, did a brief chapter review of the Report on Parliamentary Oversight and Accountability, including a summary of the Report's recommendations. They were as follows:
· that legislation be created in the form of an Accountability Standards Act and an Accountability and Independence of Constitutional Institutions Act.
· the need to establish an officer who is responsible for the correct movement and passage of reports to Parliament. This should be accomplished through amendments to the rules of the National Assembly and the National Council of Provinces for regulation of reporting to parliamentary committees.
· the establishment of a standing committee on Constitutional Institutions. Thus, such bodies would be responsible and accountable to seek their budget from Parliament as a whole from said standing committee (and not from a department).

In his briefing on the Final Report on Methods for Scrutiny of Legislation by Parliament, Professor Corder addressed the "bare essentials" of the proposals for a workable means of Parliamentary scrutiny for delegated legislation outlined in the report. They were:
· the adoption of a single piece of legislation
· the power of Parliament to disapprove such delegated legislation, in part or in whole, by resolution adopted by majority vote either before or within thirty sitting days after promulgation in the Government Gazette.
· the establishment of a Central Register of all delegated legislation in Parliament and public access to its contents.
· the automatic lapsing of the validity of all delegated legislation after an initial number of years.
· the establishment of a joint committee to monitor delegated legislation.

Debate focused around the oversight role of the NCOP. The DP and the NNP believed the oversight role of the NCOP extended to include the National Assembly. They argued that section 92(2) of the Constitution clearly made that evident in that it states "members of the Cabinet are accountable collectively and individually to Parliament." Professor Corder disagreed with the two parties arguing the oversight function of the NCOP was not to oversee national governments, but rather limited to matters of local and provincial government, and to the national government only when it directly affects an issue at the provincial or local level. He directed their attention to section 42(4) of the Constitution that stipulates the NCOP represents and ensures that provincial interests are taken into account in the national sphere of government. It was Professor Corder's intent that the NCOP should be restricted to matters listed in Section 76 of the Constitution.

The debate heightened when Professor Corder claimed that the NCOP would not be justified in calling a Minister to answer questions of a national nature. It was his argument that the NCOP ask questions that are solely specific to provinces. The DP and NNP vehemently refuted the claim, arguing that it would be justifiable to pose such questions, since the NCOP had an inherent oversight role over Parliament.

MINUTES
Professor Corder , Law Faculty Dean at the University of Cape Town, stated that the Report on Parliamentary Oversight and Accountability, and the final report on Methods for Scrutiny of Legislation by Parliament before the committee represented the sum-total of research completed relating to scrutiny and oversight and accountability. A meeting had occurred between Professor Corder, the chairpersons of the relevant portfolio committees, and the Speaker early in 1999, but there had been no request for further research to be pursued.

Report on Parliamentary Oversight and Accountability
Chapter 1:
Professor Corder briefly outlined the key issues of the Report. Reference was made to section 1.2. that outlined the role of the National Assembly and the role of the National Council of Provinces (NCOP). The report makes reference to section 55(2) of the Constitution, which deals with the National Assembly's constitutional obligation to conduct oversight of various bodies. The recommendation was made that a policy direction needs to be made regarding the desirability and feasibility of Parliament holding all these bodies accountable. Included in this was that bodies that are accountable under the Public Finance Management Act should be extended to areas including policy implementation. These recommendations are discussed in detail in Chapter three of the report. In regard to the role of the NCOP, it was recommended that the oversight function of this body be limited to its constitutional function of representing the provinces in the national sphere of government.

Professor Corder alluded to 1.2(d) of the Report which addresses how Parliament can ensure accountability of state institutions without infringing on their independence, stating this section drew the most public comment.

Chapter 2:
Professor Corder stated the most difficult issue in this Chapter was to make a clear distinction between "oversight" and "accountability." The Chapter clearly defines the meanings applied to both terms, as well as discusses the difficult role that Parliament has in exercising oversight over itself.

Chapter 3:
Chapter three deals with accountability, oversight, and the constitutional imperative in respect of the role of the National Assembly. The Report outlines, in part, the mechanisms that the National Assembly is responsible for providing which include:
(a) to ensure that all executive organs of state in the national sphere of government are accountable to it; and
(b) to maintain oversight of-
(i) the exercise of national executive authority, including the implementation of legislation; and
(ii) any organ of state.

Chapter 4:
Chapter 4 addresses the role of the NCOP. Professor Corder said its role was limited in that it is restricted to matters concerning local and provincial governments, and to areas of national government that impact on provincial or local issues. The NCOP's oversight role is determined and limited by section 42(4) of the Constitution.

He clearly outlined areas in which the NCOP played an oversight role. These areas included:
(a) where a national executive intervenes in a province under section 100(1)(b) of the Constitution.
(b) where a provincial executive intervenes in a municipality under section 139(1)(b) of the Constitution.
(c) where disputes arise concerning the administrative capacity of provinces being resolved by the NCOP under section 125(4) of the Constitution.
(d) to stop a transfer of funds to a province under section 216 of the Constitution.
(e) that delegated legislation cannot prevail over another law unless it has been approved by the NCOP.

The remainder of the Chapter addresses circumstances where the oversight role is performed in partnership between the two houses.

Chapter 5:
This Chapter refers to the structure of committees in Parliament and how they perform an oversight role. Professor Corder said the oversight record of Parliament had had a patchy history. This could be linked to participatory levels of members, and the resources available to the committees.

Chapter 8:
Chapter 8 provides a summary of the report's recommendations which state:
· that legislation be created in the form of Accountability Standards Act and Accountability and Independence of Constitutional Institutions Act.
Professor Corder called for a "fine balance" in the legislation that allows Chapter Nine Institutions to be accountable to Parliament without being directly or indirectly influenced.

· the need to establish an officer who is responsible for the correct movement and passage of reports. This should be accomplished through amendments to the rules of the National Assembly and the NCOP for regulation of reporting to parliamentary committees.

· the establishment of a Standing Committee on Constitutional Institutions. Thus all bodies would be responsible and accountable to seek their budget from Parliament as a whole from said standing committee.

Final Report on Methods for Scrutiny of Legislation by Parliament
In his briefing, Professor Corder addressed the "bare essentials" of the proposals for a workable means of Parliamentary scrutiny for delegated legislation outlined in the report. They were:
· the adoption of a single piece of legislation
· the power of Parliament to disapprove such delegated legislation, in part or in whole, by resolution adopted by majority vote either before or within thirty sitting days after promulgation in the Gazette.
· the establishment of a Central Register of all delegated legislation in Parliament and public access to its contents.
· the automatic lapsing of the validity of all delegated legislation after an initial number of years.
· the establishment of a joint committee to monitor delegated legislation.

Professor Corder also outlined the five standards to which scrutiny should be standard. These were:
· sufficient compliance with appropriate or pre-adoption procedures, including consultation with relevant bodies;
· potential encroachment on the founding provisions in Section one and the fundamental rights contained in Chapter two of the Constitution.
· non-compliance with the duties imposed by the rights to just administrative action contained in section 33 and the basic values and principles governing public administration contained in section 195 of the Constitution.
· unlawful lawmaking activity by the executive, in that such body exceeded the authority granted to it by Parliament (ultra vires action): this act of scrutiny almost inevitably involves the further scrutiny of the constitutionality of the empowering Act of Parliament itself in so far as it grants powers to the executive; or
· that the executive lawmaker is in some sense usurping the constitutionally proper legislative authority of Parliament.

Discussion
Mr Matthee (NNP) asked whether it was a function of the NCOP to play an oversight role over the Executive level of government at a national level. Reference was made to section 92(2) of the Constitution, which he believed clearly gave the NCOP that role. Mr Surty, Chief Whip of the NCOP, added it was important to differentiate between the two Houses since the oversight role of the NCOP was distinct from that of the National Assembly. He said the oversight role of the NCOP was much more general and inherent in nature.

Professor Corder disagreed with Mr Matthee (NNP) arguing that the role of the NCOP was not to oversee all of national government, but rather limited to matters of local and provincial government, and to the national government only when it directly effects an issue at the provincial or local level. He agreed that the NCOP had a distinct role to play, but felt that it was a role that was still being developed.

Mr Lever (DP) vehemently attacked Professor Corder for stating the NCOP did not have jurisdiction in overseeing the actions of the national government. He asked whether it was his intention that the NCOP should have a limited role at the national level.

Professor Corder referred Mr Lever to section 42(4) of the Constitution, which stipulated that the NCOP represents and ensures that provincial interests are taken into account in the national sphere of government. Mr Ackerman (NNP) was in agreement with Professor Corder, stating that it was inconceivable to expect the NCOP to grapple with all matters before Parliament. He felt the NCOP should be restricted to matters listed in section 76 of the Constitution.

Mr Lever (DP) rebutted that the NCOP dealt with both section 75 and section 76 of the Constitution. He asked whether he could pose a question to a Minister regarding a national matter, or would it have to be province-specific?

Professor Corder stated that the Constitution was very clear in limiting the role of the NCOP to matters of provincial and local government. It would thus not be appropriate for a NCOP member to ask a question of a national level.

Mr Lever (DP) refused to accept the logic behind Professor Corder's argument, since the Constitution did not make mention of limiting the NCOP's right to ask questions. He felt strongly that it would be justifiable to pose such questions, since the NCOP had an inherent oversight role over Parliament.

Professor Corder responded he was not minimalizing the NCOP's function, but that the Constitution was very clear in laying out where the NCOP had power. He concluded by saying that this was an issue that should be placed before the Rules Committee.

Mr Matthee (NNP) asked whether the NCOP could call the Minister of Correctional Services to answer questions on overcrowding in the prisons?

Professor Corder responded that the NCOP would be justified in calling the Minister to appear before them, but only to answer questions specific to provinces, and not related to overcrowding at a national level.

The NCOP Chief Whip stated that both Houses often work together on joint committees to ensure there is a legitimate legislative process. He referred Professor Corder to the Promotion of Access to Information Act, and the Promotion of Administrative Justice Act, which was a result of the culmination of the efforts of both Houses. Professor Corder replied that there were distinct advantages to co-operation on legislation by both Houses, but that there were also disadvantages to the process.

The Chair stated that the committee would discuss which areas of the report required more research in their next meeting.

The meeting was adjourned.

Audio

No related

Documents

No related documents

Present

  • We don't have attendance info for this committee meeting
Share this page: