Van Der Merwe’s Constitution Fifteenth Amendment Bill on Floor-Crossing

Meeting report

PRIVATE MEMBERS’ LEGISLATIVE PROPOSALS AND SPECIAL PETITIONS: STANDING COMMITTEE
12 September 2006
VAN DER MERWE’S CONSTITUTION FIFTEENTH AMENDMENT BILL ON FLOOR-CROSSING

Chairperson: Ms M Mentor (ANC)

Documents handed out:
Briefing Notes on Nature of Committee’s Consideration of Private Members’ Legislative Proposals: by K Hahndiek
Van Der Merwe’s Constitution Fifteenth Amendment Bill

SUMMARY
The Committee considered the Secretary to the National Assembly briefing notes which drew a distinction between a private Member’s legislative proposal and a private Member’s Bill. When a Member of Parliament made a proposal, it could not be termed a proposed Bill until it was written up as a Bill and declared a Bill by Parliament. It was important to share with all Members of Parliament that a Member could easily make a legislative proposal by means of a simple, ordinary memorandum.

The Chairperson outlined the process to be followed by the Committee in considering Van Der Merwe’s Constitution Fifteenth Amendment Bill on Floor-Crossing. As the proposer was not present, he would be requested to make himself available for the next meeting of the Committee. She noted that a few months previously, the President had called on Parliament to discuss the matter of floor crossing. Depending on how the matter was handled by this Committee, it could create the opportunity for Parliament to have an intense discussion on this Bill. Members were encouraged to consider the matter further, using the Rules of Parliament and the Secretary to the National Assembly notes.

MINUTES
Procedure in dealing with Member’s proposal on Floor-crossing
The Chairperson informed Members that the Committee was scheduled to receive presentation by the sponsor on a Member’s proposal. Mr K Hahndiek (Secretary to the National Assembly) had supplied the briefing notes in response to the Chair's request for some insight as to this Committee’s procedures.

She explained the procedures as set out in Mr Hahndiek’s briefing notes. This document drew the important distinction between a private Member’s legislative proposal and a private Member’s Bill. When a Member of Parliament made a proposal; it could not be termed a proposed Bill until it was written up as a Bill. The Committee was dealing with floor crossing and electoral amendment - these were only proposals and strictly in terms of the rules of Parliament those were not Bills but rather proposals.

It was quite inhibiting for a Member without a legal background and legal drafting skills to write a Bill proposal in legal terms, therefore it was important to share with all Members of Parliament that a Member could propose by means of a simple, ordinary memorandum.

A proposal came via the Speaker’s Office, and if the Committee recommended approval of that proposal it would correspond likewise to the Speaker’s Office. Sometimes the Committee would not agree, and sometimes it would agree with some aspects only, and would give its views.

The Chairperson drew attention to the distinction drawn in the document. All that the Committee got from Members were proposals. They could however be in the form of memorandums which asserted that there was a shortage in the law on a particular issue.

She stated that the Speaker would then take the Committee’s proposal to the National Assembly. The House could then decide to have a brief debate. If however the proposal were assented to, the next stage would be that the proposal would take the form of a Bill. It would then follow the normal procedures of the relevant Department or Portfolio Committee, and would not be dealt with by this Committee. It could come back to this Committee or an Ad Hoc Committee, but this Committee did not have law writing capabilities. Parliament would send it back to that Committee for further consideration or form an Ad Hoc Committee that would look into whether to notify or take it to the Member of Parliament who initially proposed it. That Member, with the assistance of Parliament, would then enter into the process. Members of this Committee were able to sit on that Ad Hoc Committee or not.

The Chairperson explained that what was currently before the Committee was therefore not a Bill, but rather a proposal. The Committee could either approve, disapprove it or open it up for debate.

She stated that a few months previously, the President called on Parliament to discuss the matter of floor crossing. Depending on how the matter was handled by this Committee, it could create the opportunity for Parliament to have an intense discussion on this Bill. If Members accepted the proposal today, the National Assembly would decide on the future of the Bill at a small debate at a First Reading.

The Chair noted that the Member who was the author of the proposal was not present.

She asked Members to study Mr Hahndiek’s briefing carefully so that they were familiar with the issues by the time the Committee met the following week.

There were three possibilities: firstly, an outright approval, secondly an outright rejection and thirdly a qualified approval, which meant that the Committee agreed with certain aspects of the proposal.

Ms Mentor asked the Committee to bear in mind that Parliament must discuss this matter of floor crossing. She was sensitive to the impact of the doctrine of the separation of powers. The President was Head of the Executive, but he was also Head of the State. Parliament was the legislative arm of government. As the Head of State he had the right to make the demands that he did.

She requested guidance from the Committee on the way forward, given the public interest and the President’s response.

Discussion
Ms S Rajbally (MF) thanked the Chairperson for the explanation of the Committee’s three options. The Committee could not propose anything unless it first went through the document, and it would only then be able to gauge the best way to handle it. Parliament must be very careful in securing the views of all political parties. She suggested that the Committee first consider the document by itself and without an outside presentation. That would allow it to gain insight and thereafter decide on the way forward.

Mr S Mshudulu (ANC) was grateful for the document and the Chairperson’s explanation. This Committee was aware that there were currently Members of Parliament who did not understand the principle of crossing the floor. It would be proper for the Committee to establish the route the Bill had taken and, arising from that, to continue with the matter. All this must be done without undermining the constitutional right of the sponsor.

Mr A Ainslie (ANC) thanked Mr Hahndiek for taking the initiative in setting his verbal briefing to the Committee down on paper. He had raised some very useful aspects. Mr Ainslie stated that he had learnt more about this Committee’s work from the document than he had in some years. There was already a general guidebook on the process. He suggested marrying the guidebook with the more specific approach adopted by Mr Hahndiek, in one very substantive document.

The Chair agreed that the three points raised by the Members were very valid and most helpful. She requested the Committee secretary to circulate the handbook to Members before the next meeting. She asked that Members of the Committee, with the assistance of the Chairperson, marry the two documents as proposed.

The decision of the Committee must not detract in any way from the right of the Member who made the initial proposal. The Committee must give full consideration to the proposal, and it must only go the National Assembly after full consideration.

Mr H Bekker (IFP) gave his full support to the proposals. The document before the Committee was very useful and he proposed that Mr Ainslie, together with the Chairperson, combine it with the guidebook and set out a proper document. For many years this Committee had been unsure of its mandate and operations and it was of the utmost importance to also look at how the matter was handled by legislators in other countries. It was essential to work on and build this Committee, because it was one of the very few Committees mentioned in the Constitution and it had a very important role to play.

The Chair agreed. The question also arose as to whether a debate was needed on a Bill of this nature, and the extent to which that debate was possibly. She also questioned the need to make recommendations to the National Assembly.

She asked how the Committee wished to proceed, bearing in mind that the proposer was not currently present.

Mr P Gerber (ANC) stated that some time ago there had been a proposal from the leader of the DA, Mr T Leon. He could not make the meeting and sent someone else but the meeting had insisted that Mr Leon himself had to attend. He proposed that it was only fair to apply the same principle in this case.

Mr Ainslie seconded that proposal and agreed with Mr Bekker that the Committee was still developing these processes, and one of the tools was precedence. Since the inception of this Committee, any Member who wished to make a proposal was required to be present at the meeting. He proposed that that practice not be abandoned in this case. He proposed that Mr van der Merwe be requested to make himself available for the next meeting of this Committee.

Mr Bekker informed the Committee that he was standing for the proposer. He agreed to the proposal. The very basis of the Committee’s functioning was that the proposal arose from the individual Members’ own views, and was not necessarily tied to his political party. He emphasised that the Committee was very important in that it was the only way to introduce or propose legislation, as that was ordinarily the sole preserve of the executive. The Committee was thus important because it was the voice of the other tier of the three tiers of government. He agreed with the assertion that the functioning of the Committee must be developed further, and he was convinced the Committee would achieve that with the Chairperson at its helm.

The Chairperson decided not to take this matter any further. She encouraged Members to take the matter seriously. Members were urged to read references to the Rules of Parliament and Mr Hahndiek’s notes, and to look at the rules of government.

Committee study tour to Britain and Canada
The Chair stated that this Committee had proposed a study tour to Canada and Britain, following Mr Hahndiek’s recommendation. Canada and Britain had two of the best Committees similar to this Committee. It would be very useful to visit those Committees. The Committee needed to interrogate factors such whether it was in the public interest, for the public good, whether it did not subtract from the Member’s rights, whether the issue had been considered before and what to do if the term of Parliament had too many briefs. All Members had the constitutional right to have their proposal considered, but the Committee literally had to do a lottery draw.

Mr Mshudulu asked whether the Committee would be visiting India as well.

The Chair asked whether the Committee wished to go to India or Canada.

Mr Gerber indicated that he had visited India a few years ago and had met with Members of Parliaments from other countries. He informed the Committee that India was in fact the country that introduced the most private Bills.

Mr Bekker suggested that one could hardly travel to Canada without going via London. If one took the same formula then the other option was to visit Australia and Hong Kong. Hong Kong was a convenient destination. He proposed that the Committee consider combining the two.

The Chair ruled that the issue of the study tours would be pursued at a later date, and adjourned the meeting.