Joint Standing Committee on Intelligence Draft Rules

JOINT RULES COMMITTEE: REVIEW OF RULES SUBCOMMITTEE
22 August 2006
JOINT STANDING COMMITTEE ON INTELLIGENCE DRAFT RULES

Co-Chairpersons: Adv T Masutha (ANC), Kgoshi M Mokoena (ANC)

Documents handed out:
Agenda for 22 August meeting
Draft Committee Minutes: 14 June 2006
Legal Opinion: Participation of Local Government Representatives
Language Practices Relating to Parliamentary Acts Bill
Draft Resolution for Establishment of Interim Scrutiny Mechanism
Incompatible Rules to be adjusted for Proposed New Chapter 2A
Compatible Rules for Proposed New Chapter 2A: Order in Joint Sittings and Rules of Debate
Legal Opinion: Language Requirements for legislation
Legal Opinion: Language Practices Relating to Parliamentary Acts Bill
Draft Rules: Joint Standing Committee on Intelligence: Legal Services Office Comments
Interim Report: Joint Subcommittee On Delegated Legislation On Scrutiny Of Delegated Legislation

SUMMARY
Advocates from the Parliamentary Legal Service Office took the Committee through their comments and suggestions on the draft rules for the Joint Standing Committee on Intelligence.

Minor or technical amendments to the wording were proposed for Rules 1(2); 1(5) and 1(7). The wording of Rule 19 caused several problems; firstly, the wording seemed to imply certain rights and duties for secretaries which members agreed did not exist. It was also suggested that the word “Resolutions” in 19(1) be replace with “Recommendations”. It was proposed that the title of Rule 6 be clarified, and there was some discussion whether its contents were better kept under this Rule or placed with Rule 8. It was questioned whether there was really a need for Rule 19 (4) as the duty set out existed as a matter of course. Members commented that Rule 21(1) seemed to be very cumbersome and imprecise. The legal advisors proposed that Rule 21(2) be amended to clarify that it did not apply only to Members of the Committee. It was questioned why this, and Rule 26, needed to be so clarified as it was preferable to deal with any breaches by staff members by way of disciplinary procedures, rather than setting them out in Draft Rules of the Committee. Furthermore Rule 26(10) created an obligation to report matters to the National Prosecuting Authority. Rule 27 currently gave overly wide powers to suspend the rules to the Committee. The Chairpersons asked the drafters to attend to a redraft, taking this comments into consideration, in consultation with the Joint Standing Committee on Intelligence, and refer the re-drafted Draft Rules back to this Committee in due course.

MINUTES
Adv F Jenkins (Parliamentary Legal Officer) took the Committee through the Draft Rules. He commented that most of the suggestions he would make related to style and grammar but there were some that related to substantive matters.

Rule 1(2)

The definition of “agency” in rule 1(2) followed the wording of the Intelligence Services Act No 38 of 1994. However, that act had been repealed by the Intelligence Services Control Amendment Act 65 of 2002. Therefore, the definition of “agency” in the draft rules should refer to Act 65 of 2002.

Rule 1(5)

Adv Jenkins stated that although the term “Assembly Rules on Discipline” was defined, there did not in fact appear to be any reference to it in the Joint Rules and therefore this definition should be removed.

Rule 1(7)

Adv Jenkins stated that the definition of “President” contained a reference to the Constitution. However, this reference had to be consistent with the citation of Constitutional Laws Act 2005, in terms of which no Act number should be associated with the Constitution. This Rule must therefore be amended to bring it in line.

Rule 19(3), discussed with Rule 6
Adv Jenkins said that the wording did not make it clear whether rule 19(3) had to apply to the Secretary of the Committee. He suggested that the phrase “with the administrative assistance of the Secretary” be added after the word “Chairperson.”

Dr S Cwele (Chairperson of the Joint Standing Committee on Intelligence (JSCI)) felt that it would be better to keep the current wording to maintain the correct lines of communication between the JSCI and the Executive. It would prevent secretaries from writing to Ministers or even the President when they did not have appropriate clearance to even look at certain documents.

Mr J Jeffery (ANC) said that, if that was the case, then rule 19(3) was in the wrong place as it proposed giving the Committee Secretary duties he or she could not have. He further commented that the word “Resolutions” at the beginning of 19(3) was inaccurate as it was doubtful whether that Committee could make such decisions. He proposed that “Recommendations” was a better word.

Mr K Mansura (Undersecretary: National Assembly) then asked for the meaning of Rule 6 and questioned whether it added any value

Dr Cwele believed that Rule 6 had been inserted to prevent members from claiming ignorance of any of the rules or regulations that governed the Committee.

Mr Jeffery stated that, to be consisted, then the Rule should be put into the disciplinary section and specify that ignorance of the rules was not acceptable. An alternative was to keep it under Rule 8 that dealt with the responsibilities of the Committee.

The Chairperson pointed out that there could be some legal implications if there were to be definitions of what were admissible and inadmissible excuses. The remedy to this problem could be found administratively, by training and induction processes.

The Chairperson suggested that the title of Rule 6 could be clarified to “Duties of Members” and the duties could be included under this section.

Mr Mansura urged that there be greater clarity of the roles and distinct responsibilities of the Committee Secretary and the Parliamentary Secretary. He stated that, for example, Rule 19(3) could refer to the Parliamentary Secretary and not to the Committee Secretary.

Rule 19(4)
Mr Jeffery questioned the need for Rule 19(4), that provided that the Secretary had custody of all papers and documents tabled in the Committee or submitted to the Committee. He believed this duty would arise as a matter of course and did not need to be specified in the Rules.

Rule 21(2) and Rule 21(1)
Adv Jenkins stated that Rule 21(2) had to apply to any person and not just to Members of the Committee. He pointed out that a similar section, Section 5(2), made specific reference to “a person”. Rule 21(2) did not contain similar wording and so he was concerned that members of staff were not covered by the rule. He therefore suggested that the rule be redrafted to read “No person shall disclose any intelligence, information or document, the publication of which is restricted by law, and which is obtained by that person in the performance of his or her functions in terms of the Act, except -…”

Mr Jeffery commented that he found Rule 21(1) very imprecise and cumbersome. He was not sure what “prior to such disclosure on the question of such information, except in accordance with this section” meant. The provision was intended to deal with instances of disclosure to the media and to the member’s political party, and needed to be revised to correctly reflect this intention.

Rule 26(2)
Mr Jeffery noted the proposed change to Rule 21(1) to refer to “persons” and pointed out that Rule 26(2) also applied to “persons”. However, he asked why Adv Jenkins believed it necessary to provide for disciplinary proceedings against staff members. He said it did not seem to have been thought through properly. If the Committee wanted the staff member to be suspended, all it had to do was make a recommendation to the Secretary of Parliament, with no need for disciplinary proceedings.

Adv Majolo replied that the word “persons” had to be included in rule 21(1) for the rule not to be restricted to Committee Members only. If a staff member breached the rule then the normal rules for disciplining staff members would apply.

Mr Jeffery added that the Intelligence Act would apply as well regarding how the intelligence documents were handled.

Mr Jeffery suggested that it may be better to have contracts with staff members where their responsibilities were clearly set out and prohibited conduct clearly described. He believed this was preferable to trying to incorporate their conduct in the Rules as there could be confusion about lines of liability and responsibility of staff members.

Rule 26(1)
Mr Jeffery did not believe that rule 26(10) was worded strongly enough. He suggested that it could state that any information that came out of a disciplinary hearing was not admissible in court. However, in fact this subrule was not really necessary as the right set out in the Rule existed already, and the word “must” in the Rule created an obligation to hand the matter over to the National Prosecuting Authority (NPA), whether or not this was considered desirable.

The Chairperson asked if the Committee really could elect to institute criminal proceedings as rule 26(10) claimed.

Adv Jenkins replied that it was only the NPA that could decide whether to prosecute.

Rule 27
Mr Jeffery questioned why the Committee was given the power in Rule 27 to dispense with or suspend the rules. It seemed to be a very wide and unnecessary power.

The Chairpersons commented that there was several points raised, and it was clear that the drafts needed some work. The JSCI and the legal advisors would therefore have to re-examine the draft and then present a coherent further draft to this Committee.

The meeting was adjourned.