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JOINT RULES COMMITTEE (SUBCOMMITTEE ON REVIEW OF
THE JOINT RULES)
1 SEPTEMBER 2006
RULES FOR JOINT SITTING DEBATES; LOCAL GOVERNMENT PARTICIPATION IN JOINT SITTINGS; INTERIM MECHANISM FOR SCRUTINY OF DELEGATED LEGISLATION
Chairperson: Adv T Masutha
Documents handed out:
Legal Opinion: Participation of local government representatives in joint sittings
Draft Committee Minutes for 14 June 2006 by parliamentary staff
Draft resolution for establishment of interim scrutiny mechanism
Proposed New Chapter 2A: Order in Joint Sittings and Rules of Debate
Interim Report of Joint SubCommittee on Delegated Legislation
The Committee considered a proposed chapter that set out the rules for debates in Joint Sittings as the current rules did not make provision for them. The first part dealt with the freedom and speech and debate, with corrections to references to the Constitution and the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act and the second part dealt with the conduct of members. Part Two of the chapter dealt with the rules of debate. Members commented that it was important to have rules that maintained order to ensure orderly debate but as Joint Sittings were largely ceremonial, many of the rules concerning periods of suspension, expressions of regret and apologies were unnecessary. They said that when it came to suspensions, the NCOP rule that the member would have to withdraw from Parliamentary activities for the day was better than the NA rule that could be construed to imply a punishment.
The Committee also discussed whether Local Government officials could participate in Joint Sittings. It then had a discussion on the formulation of draft resolutions for the establishment of an Interim Mechanism for the Scrutiny of Delegated Legislation. The Committee still had to decide whether the criteria were adequate. It could recommend to the Joint Rules Committee that an audit be done of the type of Regulations that had needed Parliamentary approval in the past.
Joint Rules framed by Presiding Officers for debates in Joint Sittings
Ms M Griebenow (Committee Secretary) took the Committee through a proposed Chapter 2A that set out the rules for debates in Joint Sittings, as the current rules did not make provision for them. The first part dealt with the freedom and speech and debate, with corrections to references to the Constitution and the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act and the second part dealt with the conduct of members.
Part Two of the chapter dealt with the rules of debate. The first rule was that members had to address the chair. This had been included in the rules framed by the presiding officers but the Committee table had now made two additions. Subsection (b) now stated that a member may only speak from the podium, except if furnishing an explanation. The second addition was that “a member shall be called in a debate by the presiding officer in accordance with a list of scheduled speakers from different parties and of both Houses.”
Provisions about the time limits for speeches; references to members by name; offensive language; matters sub judice; the rule of anticipation; explanations; points of order; acting for absent members; the right of members to speak; when replies were allowed and the closing of debates remained the same.
Ms Griebenow said that there were also rules in both Houses that were incompatible. Many had to do with discipline. For example, National Assembly (NA) rule 53(1) said that when a member was withdrawn from the Chamber, or suspended or named, he or she had to leave the precincts of Parliament. The National Council of Provinces (NCOP) did not have this provision. Any member withdrawn from the Chamber was forbidden from participating in Parliamentary activities.
Another example was that only the Chairperson and the Speaker could suspend a member but other presiding officers in the NA could only name members, with the suspension needing confirmation by the Speaker or Chairperson. The Chairperson would also have to inform the member’s Provincial Legislature.
Mr J Jeffery (ANC) said that it was important to have rules that maintained order to ensure orderly debate but as Joint Sittings were largely ceremonial, many of the rules concerning periods of suspension, expressions of regret and apologies were unnecessary. It was sufficient to empower the presiding officer to remove the member from the Chamber to continue the debate, with the conduct being referred to the relevant disciplinary structures.
Adv Majola (Parliamentary Legal Office) said that conduct that was objectionable in the NA was similarly objectionable in the NCOP. The only differences were in the wording of the rules. Therefore the question was: was the Committee setting up a third set of rules for the members of both Houses? This would have implications for disciplinary measures. A Joint Sitting could not make resolutions. The Committee should try to avoid setting up another joint committee for disciplining members as it would be better if the existing rules of each House were used.
Mr Jeffery agreed. He said an NCOP member would be particularly sensitive to decisions made by the Deputy Speaker about him/her and vice versa with the NCOP Chairperson and an NA member.
Adv F Jenkins (Parliamentary Legal Office) said that the House rules already contained provisions to deal with disciplinary matters even in Joint Sittings. Therefore, all a presiding officer in a joint sitting had to do was refer the matter to the member’s respective House.
The Chairperson said that when it came to suspensions, the NCOP rule (that the member would have to withdraw from Parliamentary activities for the day) was better than the NA rule (that could be construed as a punishment). This could be challenged as being the imposition of a punishment without the correct disciplinary and administrative procedures being followed.
Mr Jeffery then summarised how the rule should be formulated. To ensure order, the member would be forced out of the Chamber for the rest of that joint sitting (in case the sitting lasted for longer than one day) and the presiding officer would have the power to refer the matter to the relevant disciplinary committee. The House concerned would then deal with the issue at its next sitting.
The Chairperson said that it was important to remember that the third set of rules were needed to prevent the Chairperson of the NCOP having to memorise all the NA rules in order to deal with an NA member properly.
Mr Jeffery said that there was also no need for the first part that dealt with the freedom and speech and debate especially as this was dealt with in section six of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act. Part Two, subsection (d), referring to “by prior arrangement with the presiding officer” was not strong enough. The presiding officer had to have the power to grant or refuse, without any allowance for negotiation.
He also asked if there was a need for having a rule of anticipation especially since there would be only be one item on the order paper and no decisions were taken in joint sittings anyway.
Adv Majola said that she agreed in principle but it was not inconceivable that this rule would become useful in the future.
The Chairperson said that it would be unfortunate if the gaps could not be closed, and if the approach was too minimalist in drafting the rules meant to maintain order and decorum in the joint sittings.
Mr Jeffery maintained however, that there was no reason to include this in the joint rules. In the House rules it was used to stop debate on a motion but this did not arise in joint sittings. The rules to maintain order would also deal with any member who attempts to disrupt the proceedings. He suggested that the Committee noted his concern for discussion at another time.
The Chairperson supported Mr Jeffery’s suggestion and moved on.
Mr Jeffery said that there should also be some mechanism in place for the member ejected from the Chamber to apologise to the Houses with the permission of the presiding officer.
The Chairperson said that he supported this suggestion as the integrity of the State or Parliament needed to be upheld, and the conduct concerned may be so deplorable that an apology was necessary.
Mr Jeffery said that there was also no need for the rule compelling the member to withdraw while his or her conduct was being debated, nor the rule that if a charge was made against a member, they had to be given the opportunity to be heard. There was also no need for the rules on reflections upon decisions of the same session or reflections upon statutes. The rules on reflections upon judges could remain.
Participation of Local Government in Joint Sittings
Mr Jeffery said that Adv Jenkins’ opinion on whether Local Government officials could sit in Joint Sittings was in the negative. There was no direct or indirect provision in the rules framed for the Joint Sitting that allowed their participation. If there was a need to call the Chairperson of the South African Local Government Association (SALGA), for example, both Houses would have to pass a resolution allowing him/her to address them. However, whether they could simply attend the sittings (which were largely ceremonial) was a question that had to be referred back to the Joint Committee for political consideration.
Adv Majola said that SALGA was given the right by the Constitution to lobby Parliament. Joint sittings were the perfect opportunity to do this, especially since no resolutions were passed in them. She agreed with Mr Jeffery that this issue needed more political debate.
The Chairperson agreed with this suggestion.
Adv F Jenkins said that the Constitution said that Local Government may participate where necessary. Section 44(2) set out the details. For example, where legislation that involved municipalities was to be discussed, they could participate.
The Chairperson said that it was important to remember the role and character of joint sittings. No decisions were taken in joint sittings so it was doubtful that urgent Constitutional matters or other serious issues would be on the table. Therefore, they may not be the best place to lobby.
Adv Majola said that it would useful if there was political input on this matter to assist the Committee.
The Chairperson said that the mandate of this Committee was very narrow. Members merely had to determine what the Constitution currently said and not cater for political issues that had not yet arisen.
Mr Jeffery agreed with this and said that the Committee could not manufacture provisions for SALGA to participate in joint sittings and expressing an opinion on this was beyond their mandate. What they could do was point this out to the Joint Rules Committee.
Discussion on formulation of draft resolutions for the establishment of an Interim Mechanism for the Scrutiny of Delegated Legislation
Ms Griebenow said that the Joint Rules Committee had stated that a an interim scrutiny committee be established to act in an advisory capacity to Portfolio and Select Committees with regard to the scrutiny of delegating provisions in enabling statutes referred to it. It could also scrutinise any delegated instruments that required approval by Parliament and be provided with the necessary capacity and legal expertise.
As it was an interim committee, the Joint Rules Committee suggested a draft resolution in both Houses with interim rules that determined its function. There were two options for its composition: the first was to have 13 NA members and nine NCOP members (in line with Joint Rule 19). The second option was 11 members (six from the ANC [including two NCOP members]; two from the DA; one from the IFP and one from other parties).. The second formulation was the preferable option as it was flexible.
The scrutiny criteria were all the criteria included in the report with additions about the Committee’s reporting arrangements.
Mr Jeffery wanted to know how many Regulations had been drawn up that needed Parliamentary approval. He said that they were very few so he wanted more detail on this. This would help to determine if setting up a whole committee for this issue would be superfluous and a waste of time. He said that it would be helpful if they could put in a mechanism for the Scrutiny Committee to consult with the relevant Portfolio Committee that had expertise in the matter.
The Chairperson said that the purpose of the scrutinising committee was not to examine the policy considerations that underlay the subordinate legislative instrument. Even the Portfolio Committee could not really review the policy choices. Instead, the focus was on the criteria. For example, it would look to whether the instruments were drafted properly and whether they impinged on the jurisdiction of the courts. He added that the Committee still had to decide whether the criteria were adequate, so in that regard, there were policy decisions to be made.
Mr Jeffery was worried that the criteria were too limited. The fact that parliament retained its power to approve certain regulations meant that those regulations dealt with fairly serious matters. Thus, the criteria had to be similarly serious.
The Chairperson said that they could recommend to the Joint Rules Committee that an audit be done of the type of Regulations that had needed Parliamentary approval in the past. The Committee could then make additions or improvements to the current criteria.
Consideration of Minutes for the 14th of June 2006
The Committee considered and approved the minutes.
The meeting was adjourned.
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