Joint Subcommittee on Delegated Legislation: deliberations

The following minutes were taken by National Assembly Table Staff Member, Ms Marina Griebenow.

DRAFT MINUTES OF PROCEEDINGS
Wednesday, 27 February 2002 (09:15) V226

Present:
National Assembly
Masutha, M T (Chairperson)
Holomisa, S P
Schmidt, H C
Pretorius, I J
National Council of Provinces
Setona, T S (Chairperson)
Ackermann, C
Jacobus, L
Lever, L G
Matthee, P A
Nogumla, R Z

Staff in attendance:
Borien, J (NCOP Procedural Services); Griebenow, M (NA Table); Jenkins, F (Parliamentary Law Adviser); Tsholetsane, M (Parliamentary Law Adviser).

1. Opening and welcome (Agenda item 1)

Adv Masutha, as chairperson, opened the meeting at 09:15.

2. Apologies (Agenda item 2)

Apologies were tendered on behalf of Mr L C Mothiba, Mr A C Nel, Miss S Rajbally and Mr S N Swart of the National Assembly component and Mrs G N M Pandor and Mr M E Surty of the NCOP component.

3. Consideration of agenda (Agenda item 3)

Ms Jacobus proposed dealing with item 8 (Consideration of minutes of meeting on 19-02-2002) and item 9 (Matters arising) as items 4 and 5 respectively. Mr Pretorius further proposed that item 4 (Arrangements for the workshop and programme for second term) be dealt with after the deliberations on items 6 and 7. The agenda, as amended, was adopted.

4. Consideration of minutes of meeting on 19-02-2002 (Agenda item 8)

On the proposal of Mr Pretorius, seconded by Adv Schmidt, the minutes were adopted.

Matters arising (Agenda item 9)

Decision of National Assembly Rules Committee
Adv Masutha reminded members of the Subcommittee that the National Assembly Rules Committee had agreed to fast-track the oversight of delegated legislation by the introduction of an interim scrutiny mechanism. The Subcommittee would continue preparing a more substantial response to Parliament's constitutional mandate in respect of delegated legislation, but its deliberations would, therefore, also be geared towards the progressive development of an interim mechanism.

Adv Masutha suggested that the parliamentary law advisers should start reducing the main ideas from the discussion on the options for an interim mechanism and the required institutional arrangements into a substantive discussion document which could be presented at the workshop. The workshop could then be the forum for testing new ideas on the interim mechanism. The ideal was to have a universal standard, so that all committees would know how to handle delegated legislation when they passed legislation and what to do when delegated instruments came back from departments.

On the proposal of Adv Masutha, it was
AGREED: That the parliamentary law advisers would compile a substantive discussion document for inclusion in the papers for the workshop.

Constitutional mandate
Adv Masutha said one of the important points raised in the discussion was that the Constitution gave Parliament a discretion to introduce instruments for tabling and approval. He warned that the Subcommittee would have to be careful when deciding on scrutiny criteria and mechanisms, in other words whether it would require everything to be "approved" by Parliament before it could be implemented, if it fell within the definition of delegated legislation that had been determined, or whether it would take a more flexible approach.

6. Discussion: Options for a definition of delegated legislation (Agenda item 5)

A document entitled "Options for a definition of delegated legislation", distributed earlier to members of the Subcommittee as "Annexure 3", was presented by Ms Borien.

Adv Masutha said whether an Act determined that the date of commencement would be the date on which the President assented to the Act or was silent on when the Act would come into operation, the Act automatically came into operation on the date of assent. When the President assented to an Act of Parliament, which gave that Act the status of a law, he was exercising an original constitutional authority, regardless of whether it was repeated in the Act or not.

Adv Masutha added that Parliament could not alter the constitutional powers that the President had by an Act of Parliament, so the act of assenting to a bill should be distinguished from that of issuing a proclamation that announced the commencement of an Act. When an Act determined that the date of assent was not the date of commencement, and that date had to be fixed by the President by way of a proclamation, it became a totally different exercise. For all intents and purposes, such an Act became law upon assent, but one that had not yet come into operation. When the President, at a later stage, determined the date of commencement, he was acting in terms of an Act of Parliament and not in terms of the Constitution. That would be a delegated function, as it was sanctioned in the Act itself. Whether such an instrument should, for the purposes of the Subcommittee's work, fall within the definition of delegated legislation was something that had to be discussed.

Adv Masutha referred members of the Subcommittee to a document entitled "Proposed definition of delegated legislation" that was discussed at the previous meeting as "Annexure 3". Attached to that document were, by way of illustration, examples of delegated instruments.

He reiterated that the purpose of the entire exercise was to identify options on each of the topics with a view to developing possible recommendations to the Joint Rules Committee on how Parliament should approach the issue of the scrutiny of delegated legislation. All of the Subcommittee's deliberations to date were a build up to an eventual report to the Joint Rules Committee on how Parliament should respond to its constitutional mandate.

Adv Masutha said what was at issue was whether a proclamation that had been issued to announce the date of commencement of a particular Act, if it was not the date of assent but a date prescribed in the Act, should be brought before Parliament for scrutiny or be excluded. Another question was whether all proclamations had to be excluded from the definition of delegated legislation or only certain proclamations. If so, what proclamations? He added that the President would not publish regulations, which would clearly be delegated instruments, but he would ordinarily publish instruments in the performance of an executive act. He mentioned the example of the Public Service Act of 1994 which had raised questions as to whether it was appropriate for a whole Act to be introduced by way of proclamation. The essence was to try to delineate between instruments that were of a delegated nature and instruments that were original. The second test was to see whether an instrument was legislative in character as opposed to instruments that did not have the force of law and therefore fell outside the ambit of the Subcommittee's enquiry.

Mr Lever said that he did not want to express a view at that stage on whether proclamations should be included or excluded from the definition of delegated legislation. He said that it could happen that an Act determined that it would come into effect on a future date to be decided by the President and the President then said that he would give effect to certain sections of the Act on one date and others at a later date. The committee could feel that that was unreasonable and should be reviewed. He said the issue then was actually whether the President should have been given that discretion in the first place.

Mr Pretorius said that the Subcommittee was aiming to set up a mechanism to prevent the executive from exceedings its powers. He asked whether it was not possible to get down to the nitty-gritty of the matter. Though it was interesting to listen to all the discussions, it eventually had to be explained to the public in such a way that they could understand it. He said that he wanted to make sure that the President, a Minister or a Premier did not exceed the powers that had been given to him.

Adv Masutha said that the next item would focus on scrutiny criteria and then members of the Subcommittee would look at what it was that it would be scrutinising for, ie seeking answers to questions such as whether the delegated instrument fell within the parameters that were set out in the original law, whether it was constitutional, etc.

He said, as far as proclamations were concerned, that members should perhaps distinguish between instruments that were of an executive nature and those that were of a legislative nature. If one looked at the executive functions in the Constitution which were borne by the President and the Cabinet, one of the provisions was that the President implemented legislation. One could, therefore, argue that when the President determined the date of commencement of a law, he was not exercising a delegated function but an original one. However, it was not a legislative function but an executive one and the latter was an original power in terms of the Constitution. According to that principle, a proclamation that brought a law into operation was an executive function and would not fall under delegated legislation.

On the proposal of Adv Masutha, it was
AGREED: That the document "Options for a definition of delegated legislation" would be adjusted to reflect the view that proclamations that brought a law into operation did not fall under delegated legislation.

Mr Jenkins, after being introduced to members of the Subcommittee, said that the reason why Parliament and the Subcommittee wanted to look at delegated legislation was twofold. The first was to monitor the executive, one of the main functions of Parliament, and the second was in terms of section 101 of the Constitution. In terms of that section it was mandatory for proclamations, regulations, and so forth to be accessible to the public. If that was mandatory, Parliament had to create a system according to which it monitored and made delegated legislation accessible to the public. One could then determine what had to be scrutinised for the purposes of monitoring and oversight and what could merely be published as a list to inform the public that certain regulations or proclamations had come through from the executive. It was mandatory to make proclamations accessible to the public, but it could easily be done without Parliament inappropriately having to review the presidential function of bringing an Act into operation.

Adv Masutha said that the issue of public access had been discussed at the previous meeting, but it had not been resolved. Technically nothing of the nature of a proclamation or a regulation had the force of law unless it had been published in the Government Gazette. The theory was that the Gazette was the official newspaper of the government to which all citizens had access. That, of course, was not the case in practice. The question, therefore, in line with the constitutional imperative, was how to streamline the process of making regulations accessible.

Mr Lever proposed that when the issue of the accessibility of delegated instruments was discussed, it could be considered bringing along a monthly publication of the Gazette in order to show members what a substantial pack of documents it was. Adv Masutha suggested that GCIS, which had the task of popularising government information, could be asked for input on innovative ways to make the such information more accessible. He said that people needed access to such information in order for them to challenge incorrect decisions by officials. Regulations were more difficult to access than other delegated instruments, while the kind of detail that mattered to people was usually contained in such regulations.

Ms Tsholetsane pointed out that the Constitution was not really clear on whether it was a function of Parliament to ensure the accessibility of delegated instruments. She said that it could well be a function of the executive.

Adv Masutha said that the representatives of the executive could be asked, at the workshop, whether the executive was taking any measures to give effect to the constitutional obligation to make delegated instruments accessible to the public. He said it could perhaps be necessary to consider legislation that would set out particular procedures which had to be followed by every department when it published regulations. Parliament would then regulate how departments should make regulations accessible.

On whether a definition of delegated legislation was necessary, Adv Masutha said if the definition was too narrow, one could end up excluding instruments which should have been brought to Parliament for approval. He pointed out that someone had said at the last meeting that they thought regulations were the only delegated instruments. That view had been corrected in a legal opinion by the parliamentary law advisers on what and what did not constitute delegated legislative instruments.

Mr Lever said that the document actually only reflected one view, but one could define it negatively or positively. One could, therefore, say what it was or what it was not. He said that it would be incorrect to say that a definition was not required. In whatever way one approached it, one was defining it. It was probably necessary for a definition for the purposes of the recommendations to the Joint Rules Committee, but when it came to an Act, one would then have to ask whether an instrument that technically fell within the definition really had to be scrutinised in order for Parliament to exercise its oversight function.

Adv Schmidt expressed the view that a definition was inevitable, whether by inclusion or exclusion. He asked whether it would not be appropriate to define the various delegated instruments such as regulations and proclamations, but then to say that certain instruments did not require scrutiny.

Adv Masutha said that the Subcommittee had settled the issue that delegated legislation as a concept was not limited to regulations. That had been taken a step further by saying that certain proclamations were not of a legislative nature and did not fall within the definition of delegated legislation. Certain proclamations or executive acts were original in that they came from the Constitution and were, therefore, not delegated instruments.

He said that the Subcommittee now had to decide whether or not to have a definition of delegated legislation. If it was decided to have a definition, it could be done by way of exclusion or inclusion. After defining delegated legislation, it had to be decided whether Parliament had to exercise oversight over everything that fell within the purview of that definition. The Subcommittee could want to exclude certain categories of delegated legislative instruments from scrutiny. When it came to the scrutiny criteria, which was a further issue, the Subcommittee could decide that all delegated instruments had to be tabled, but not all had to be approved. The Constitution distinguished between tabling and approval. If the Subcommittee decided in favour of approval, did it mean the same kind of approval for all delegated instruments? Should it occur prior to implementation or could Parliament, within a certain period after the regulations had been published and were in operation, reverse the situation?

On the proposal of Adv Masutha, it was
AGREED: That what would flow from the consideration of the above-mentioned sequence of issues would subseqently be captured in the document "Options for a definition of delegated legislation".

Discussion: Scrutiny criteria and mechanisms (Agenda item 6)

Adv Masutha said that it had been decided that a separate paper on the scrutiny criteria and mechanisms was not necessary, as the matter had been sufficiently traversed in the Corder report. He asked Ms Tsholetsane to lead the discussion on the matter.

Ms Tsholetsane explained that the Interpretation Act, in section 17, already required all subordinate legislation to be tabled in Parliament, but Parliament had the duty to create mechanisms for its approval or disapproval. It could only exercise that function after looking at an instrument.

She said that Prof Corder had considered what was done in other jurisdictions and several questions arose. Who had to scrutinise the subordinate instruments? Parliament had to create internal mechanisms for scrutiny. Would it be portfolio or select committees or would it be a special committee that would only look at delegated legislation? Would that committee need special assistance, as was the case in other jurisdictions? Would there be separate committees for the two Houses?

The scrutiny criteria were uniform throughout most jurisdictions and were usually set out in legislation. They checked, inter alia: The substance of delegated instruments, for example whether they imposed levies, taxes or duties; procedural aspects surrounding delegated legislation; whether they impinged on the jurisdiction of the courts, as that was not permitted; whether they retrospective in nature and, if so, whether that was permitted in terms of the parent Act; whether they conformed with the objects of the parent Act; whether they appeared to make unusual use of powers conferred by the parent Act; whether they had been properly drafted; whether they trespassed on personal rights and liberties; and whether they amounted to substantive legislation, as delegated legislation should not purport the replace the parent Act.

On the proposal of Adv Masutha, it was
AGREED: That Ms Tsholetsane would consolidate the criteria into a document, which would be circulated to members of the Subcommittee for comment and input.

Adv Masutha said that it was necessary to interrogate the issue of the scrutiny of the policy substance of regulations. If the scrutiny mechanism had to apply its mind to such substantive issues, should it be able to effect amendments to the regulations or should it override the regulations in subsequent legislation?

Ms Tsholetsane explained that regulations could contain, for example, matters which were not provided for in the parent Act. The scrutiny mechanism would look at the power given to the Minister to make regulations and if the extent of the power exceeded that which was given in the parent Act, the mechanism would query it.

Adv Holomisa asked if the power given to the Minister was in line with the provisions of the Act, and he decided to use it in a way that differed from the way in which the parliamentary committee believed it should have been used, whether the committee responsible for scrutiny was in a position to change the regulations.

Adv Masutha said that there was an interesting principle around delegation as a concept of law. It determined that the person who was delegating a power did not lose that power. That was different to assigning a power. When power was assigned to someone, that recipient of the power became the new holder of the power. With delegation one did not lose the power. If Parliament then delegated the power to the Minister to make certain policy choices, would scrutiny or other mechanisms therefore allow Parliament to take that power back?

Ms Tsholetsane confirmed that Parliament could. She said in New Zealand, for instance, a committee interacted with the executive if there was an unusual exercise of the power given in the parent Act. It could also call officials before that committee to explain what had been done.

In response to a question by Adv Holomisa on what scrutiny mechanism was preferred by other jurisdictions, Ms Tsholetsane said that most jurisdictions had a special committee to look at delegated legislation. That committee was usually assisted by a legal expert, because it entailed checking legal principles.

Adv Masutha said that the Subcommittee was attempting to determine what the interim scrutiny mechanism should be. One of the decisions that had been taken earlier was that a permanent committee with all the necessary expertise was a long-term prospect. In the meantime, the Subcommittee could not even begin to recommend that until a detailed and well-researched report had been tabled. The only mechanism that could be considered at present was what was currently being used, namely to allow portfolio and select committees to handle delegated legislation. If one looked at the list of criteria, how much of that would they be required to do and what resources would be provided to them to enable them to fulfil that function? Some committees may not have the capacity to scrutinise, for example, the constitutionality of delegated instruments.

Adv Holomisa said in his view the purpose of having a scrutiny mechanism for delegated legislation was to facilitate the monitoring and oversight function of Parliament. Portfolio and select committees were ideally placed to perform such scrutiny, as they were familiar with the content of the parent Act. It could, however, be necessary then to provide every committee with a legal adviser.

Adv Masutha said that there were pros and cons to all the options. It was the duty of the Subcommittee to reduce them into a discussion document, so that when it went to the Joint Rules Committee with recommendations, it could point them out. He said an idea that was starting to fossilise around an interim mechanism was that portfolio and select committees should be used and provided with the necessary capacity.

Discussion: Procedures for scrutiny (Agenda item 7)

Adv Masutha said that if one looked at the rules of the Supreme Court, one would see that those rules were made by a board. That was done in or after consultation with the Minister for Justice and Constitutional Development. The Minister therefore had an oversight role, but not Parliament. Should there then be a three-tier system for oversight? If so, it would apply to all delegated legislation produced by bodies other than executive functionaries such as Ministers. An option could be for the Subcommittee to say that such delegated instruments would be exempt from parliamentary scrutiny and the Minister would be allowed to scrutinise such instruments.

In response to a question by Mr Pretorius, Ms Tsholetsane explained that the position in New Zealand in respect of delegated legislation was quite elaborate. It consisted of a review committee that looked at delegated legislation and measured it against criteria set out in a code. There was also a legislation advisory committee that was not directly involved in the scrutiny of delegated legislation, but acted as a watchdog over the process. The latter consisted of independent lawyers and judges appointed by the Minister of Justice. The review committee was a parliamentary committee, but it reported to the Minister of Justice and drew the attention of the House to queries it had in respect of delegated instruments.

Adv Masutha said inasmuch as foreign jurisdictions could throw some light on the matter, South Africa had a unique constitutional dispensation. He said that the Subcommittee had to ensure that the mandate in the Constitution was its point of departure. While other jurisdictions could be useful to learn from, the ideas would have to be adapted to the South African situation. He said that the Constitution did not, for example, empower the executive to scrutinise legislation, but Parliament.

Mr Pretorius said that it appeared that the review committee in New Zealand was a very important committee, as it scrutinised delegated instruments even before publication. Adv Masutha said that it would be an interesting approach to say that issues should be cleaned up before they came to Parliament.

Adv Masutha proposed that the document of the parliamentary law advisers should include constitutional questions that were procedural in nature as distinct from substantive constitutional issues, including judgments that could be relevant. It was necessary to determine to what extent a scrutiny mechanism would go into questions of policy, as there were borderline cases.

Adv Masutha added that apparently there had been some recent judgments on delegated legislation. He said that he would obtain the relevant decisions in due course and would pass them on to members of the Subcommittee.

9. Arrangements for workshop and programme for second term (Agenda item 4)

After a discussion, it was
AGREED: That -
the workshop would be postponed to Thursday, 25 April 2002;
there was a need to expand the topics for the workshop;
the NCOP component of the Subcommittee would represent and report back to the provinces;
representatives from Salga would be invited to the workshop;
decisions on the programme and presenters would be left to the chairpersons and parliamentary law advisers;
presentations would be limited to 15 minutes and discussions to 30 minutes per topic;
a document would be compiled by the parliamentary law advisers for presentation at the workshop and discussed by the Subcommittee before the workshop; and
letters would be written to the presiding officers to request funds for the workshop.


10. Closure (Agenda item 8)

The meeting adjourned at 12:20.

M T MASUTHA
Chairperson
T S SETONA
Chairperson

APPROVED: