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JOINT RULES COMMITTEE
25 May 2005
SCRUTINY OF DELEGATED LEGISLATION INTERIM REPORT: BRIEFING
Document handed out:
Interim Report of Joint SubCommittee on Delegated Legislation
The Joint Rules Committee was briefed on the Interim Report of the Ad Hoc Subcommittee on Delegated Legislation which had been tabled in October 2002 but not yet discussed. Committee members were asked to go through the recommendations with their parties and come back with specific instructions.
Adv M Masutha (Co-chairperson of the Ad Hoc Subcommittee on Delegated Legislation) highlighted the importance of the principle of separation of powers between the three spheres of government. The Constitution further provided for the legislature to delegate part its law making power to other bodies. However the body that delegates such power does not divest itself of the authority to revoke such delegated power. The different forms of delegated instruments included regulations and proclamations. The existence of delegated instruments is a departure from the rule of separation of powers.
The mandate given to the Ad Hoc Subcommittee on Delegated Legislation arose from Section 101 of the Constitution, which gave Parliament the mandate to create a framework in which delegated legislation could be scrutinised, with similar provisions in s104 for provincial legislatures.
The authority to make law lies with the law-making body as far as the separation of powers is concerned. Delegated legislation was therefore a departure from this constitutional principle, but one that was necessary in any modern democracy as there are many things that the lawmaker could not anticipate. The Constitution provided a mechanism where the original bearer of the authority would be able to scrutinise the executive upon delegating that function, to ensure that the delegated authority is exercised within the parameters originally intended by the lawmaker. The distinction between delegation and assignment was noted. The Constitution assigned the authority to make law, and once such power was assigned, no-one could take it away from that body. With delegation on the other hand, that authority was revocable.
The Interim Report emanates from a comparative study of methods of scrutiny developed by other democracies and practised by the various national parliaments around the globe. The Committee has submitted a number of recommendations for the most suitable scrutiny mechanisms for the South African Parliament.
The interim report poses a challenge to the Members to decide which model will best serve our constitutional democracy. There is the choice between tabling alone and tabling with approval. Members were urged to consider the various models of scrutiny of delegated instruments and determine the appropriate one.
This chapter stated the relevant provisions in the Constitution that gave the mandate to Parliament, and the questions that would arise out of this. He explained that all delegated legislation must be tabled by Parliament and approved by it before it became law. This would mean that any rule, regulation or bill would have to be put before a scrutiny mechanism, and tested against certain specified criteria, and if those criteria are met, it would be approved by Parliament. This represents a departure from the status quo, where delegated legislation only needs to be tabled before Parliament, but does not require any of them to be approved by Parliament.
He said that the Committee must make a decision whether the Constitution requires all delegated instruments to be tabled and approved by Parliament, retain the status quo. A decision also needed to be made whether an Act of Parliament needs to be passed to regulate this situation, or through rules and guidelines. He thought that in the first instance an umbrella Act could bring uniformity, with the rules dealing with specific situations such as the establishment of a scrutiny mechanism.
The Chairperson asked for an example of when Parliament would delegate to the executive. Mr D Gibson asked if all regulations gazetted in terms of legislation are tabled in Parliament as a matter of practice.
Adv Masutha responded to the Chairperson by giving the example of the Social Assistance Act which said that government must give grants, but some of the details in the Act are technical. He said that the idea was to avoid burdening Parliament with the processing of principal legislation, and it was better to defer that responsibility to the executive as it was best placed in its role as the implementer of legislation.
He responded to Mr Gibson’s question by admitting not knowing how the exact procedure, but he did say that to his best knowledge, once a bill is gazetted it is put before Parliament.
He explained that this chapter dealt with the distinction between original and delegated legislation. The proposal was that once the scrutiny mechanism was established, it would scrutinise every bill in Parliament to see if it contains enabling mechanisms or delegating provisions in order to keep them in line with the criteria developed by the scrutiny legislation. The chapter was not proposing that all legislation should be subject to scrutiny, only that which contained enabling provisions. The Scrutiny Committee would also need to look at whether the matters being delegated did not amount to the usurping of the law-making authority of Parliament.
Mr P J Nefolovhodwe asked what the consequences would be if the Scrutiny Committee found a breach of the delegated authority.
Adv T Masutha replied that the scrutiny mechanism was dealt with fully in Chapter six. Different mechanisms of conflict resolution could be set up and considered by Parliament to find the quickest way to sort out the problems. Once a procedure had been set in law about how delegated legislation must be approved, the delegated instrument became law, which would take it out of the hands of Parliament, and in the event of a dispute, it had to go to the courts.
Mr P J Nefolovhodwe asked what would happen where there were unintended consequences of legislation from pre-1994.
Adv T M Masutha replied that this was an issue of "sunsetting." Regulations and rules have a life span, and so if they were not reconfirmed, they would fall away, as distinct from Acts of Parliament which continue to be in force until they are repealed. This "sunsetting" affords an opportunity to look at the regulations and put them in line with the current constitutional dispensation.
Another approach could be to conduct an audit of existing regulations to see if they are in line with current criteria. These are policy questions that Parliament would have to consider. A third way would be by way of petition where members of the public could make presentations to parliamentary committees to raise concerns about specific regulations.
Chapters 3 and 4
He made the distinction between the two chapters by saying that Chapter Three deals with delegated instruments with legislative status while the other deals with instruments of administrative nature. Parliament does have jurisdiction to scrutinise delegated instruments with legislative status. The effect is that this delegated legislation is elevated to the same level as the enabling Act, that is, it becomes an extension of the law. However there is the view that not all delegated legislation requires parliamentary scrutiny. For example the regulations governing certain professions are themselves reviewed by statutory bodies. Another example is the President exercising delegated authority when he makes proclamations. The President may issue a proclamation which approves the passing of legislation and such instrument may not necessarily be subject to parliamentary scrutiny.
The recommendations arising out of the chapters are that the original legislation must specify whether the delegated legislation is intended to become an extension of the law. Where the enabling Act is ambiguous in this regard, it was proposed that a set of guidelines be included for interpretation purposes.
This chapter dealt with the question whether it is Parliament or the executive who has the responsibility to ensure the accessibility of subordinate instruments such as regulations. The Constitution expressly sanctioned that delegated legislation had to be accessible to the public. Unlike Acts of Parliament, there does not exist a single access point for regulations which could be looked up in one place. A number of recommendations were listed.
This chapter dealt with the scrutiny mechanism itself including its capacity and the expertise required by its members to give effect to its mandate, as well as its powers.
Mr P J Nefolovhodwe asked if there was a point where the body could become subject to the courts.
Adv Masutha replied that the Constitution ultimately gave any oversight power to Parliament.
This chapter dealt with the scrutiny criteria, but this was policy issue that Parliament had to consider, for example if the criteria offended the Bill of Rights.
This chapter dealt with the mechanism in s146 of the Constitution that deals with conflicts of law that could arise. The legislation must create a mechanism whereby provincial legislation will prevail over national legislation in certain circumstances. The mechanism created by delegated instrument must be such that it creates harmony and uniformity. The national law will merely be suppressed to the extent of its invalidity with the provincial law. This provides assistance as a deadlock-breaking mechanism in cases of conflict.
This chapter arose out specific instructions from the previous Speaker of Parliament to create some criteria to put an interim body in place. Adv Masutha did not think this was necessary, and would prefer an holistic approach, passing all the legislation, making all the rules, and creating the body.
The Chairperson, Ms Mbete, urged Members to study the recommendations contained in the report and return with specific instructions about the most appropriate model of scrutiny of delegated instruments for the South African Parliament.
The meeting was adjourned.