Subcommittee on Review of Rules:Drafting Rules framed under Powers and Privileges of Parliament Act

Meeting report

JOINT SUBCOMMITTEE ON REVIEW OF RULES
15 November 2004
DRAFT RULES RESULTING FROM POWERS, PRIVILEGES AND IMMUNITIES OF PARLIAMENT AND PROVINCIAL LEGISLATURES ACT; COMPARATIVE STUDY ON SIMILAR STRUCTURES IN OTHER BICAMERAL PARLIAMENTS

Chairperson: Adv M Masutha (ANC)

Documents handed out
Comparative study of the roles and functions if disciplinary committee in Bicameral Parliaments
Guide to Drafting Rules framed under Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act
Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act [No 4 of 2004]
National Assembly Rules
National Council of Provinces Rules
Joint Rules

SUMMARY
The briefing by Parliament’s Legal Services Office dealt with the requirement of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act that came into operation in June 2004 to establish a standing committee for each House to deal with all enquiries and the imposition of penalties relating to contempt of Parliament. The potential overlap between the National Assembly Disciplinary Committee, the Joint Committee on Ethics and Members' Interests and the Section 12 committees was outlined. Also considered was the issue of legal representation in parliamentary disciplinary inquiries, the confidentiality of documents and ancillary matters.

During the discussion the Office was asked to clearly set out the pros and cons of either joining the Assembly Disciplinary Committee and the Section 12 committee or having two separate committees. Members also raised the following issues:
- did not incidents involving comments exchanged between Members of Parliament outside Parliament constitute contempt,
- should a substantive provision be introduced to expand the powers of the Section 12 committee to deal with matters that did not strictly constitute contempt,
- should the general rule be that no legal representation be allowed in disciplinary hearings but that the Disciplinary Committee be granted the discretion to allow legal representation for complex matters,
- should the general rule regarding confidentiality of documents be that they must be provided "except where such evidence or documents are protected by legal privilege or legislation".

The briefing on the comparative study on roles and functions of disciplinary committees in Bicameral Parliaments outlined the manner in which the Australian, Indian and United Kingdom Committees of Privileges operated. Members sought clarity on how a privilege matter was initiated by the Powers and Privileges Act and questioned whether a special rule should not be introduced to deal with the initiation of proceedings.

MINUTES
Guide for Drafting Rules framed under Powers, Privileges and Immunities of Parliament and Provincial Legislatures
Relationship between National Assembly Disciplinary Committee, Ethics Committee and S12 Committee
Adv F Jenkins, Parliamentary Legal Services Office, stated that the document sets out the differences of the three committees and how they relate to each other. The National Assembly has a disciplinary committee, whereas the NCOP does not have one but deals with . Its task is merely to advise the Speaker on issues of misconduct generally, on request. The Joint Ethics Committee would report back to the relevant House after conducting an investigation on issues relating to the Code of Conduct for Members of Parliament. The envisaged Section 12 committees dealt with two issues: issues of contempt and requests from a member of the public who felt aggrieved by a statement made by a Member of Parliament.

The only overlap envisaged was where the Disciplinary Committee was tasked to investigate the abuse of a facility, which could amount to a contempt of Parliament. Adv Jenkins said that he did not envisage this ever arising from the current definition of ‘contempt’ in the Powers Act, unless Parliament considered the establishment of additional forms of contempt such as "bringing Parliament into disrepute". This potential overlap could be removed by stipulating that the Section 12 committee can only consider issues that were not considered by either the Disciplinary Committee or the Ethics Committee.

An important issue was where the Section 12 committees would be placed. The Act requires each House to have one such committee. Adv Jenkins proposed that the Disciplinary Committee in the National Assembly be merged with the Section 12 committee, to prevent a proliferation of committees. The danger however was that the Disciplinary Committee was an organ close to the Speaker, and this was contrary to the Act’s provisions for the Section 12 committee. The alternative would then be to maintain the clear separation between the two committees.

Mr J Jeffrey (ANC) requested Adv Jenkins to clearly set out both the pros and cons of either having two separate committees or joining them. He cautioned against a plethora of committees, because non-lawyers would struggle with the overlap. He asked why the NCOP did not have a Disciplinary Committee and how it was able to survive without one.

Mr Hahndiek, Secretary of the National Assembly, explained that the Disciplinary Committee was not a permanent body, but was instead appointed as and when the need arose.

The Chair asked whether the Public Finance Management Act (PFMA) provided for such transgressions. He asked if the new Financial Administration of Parliament Bill would include specific powers conferred on either the Speaker or the Secretary of Parliament with regard to financial matters.

Mr Hahndiek replied that until the Financial Administration of Parliament Bill was enacted, Section 31 of the Act still applies which stated that the financial affairs of Parliament lay with the presiding officer of each House.

Mr Jeffrey questioned whether the investigation and decision on disciplinary action could be separated, as it would be in any other accounting situation.

Mr Hahndiek replied that Rule 191 of the National Assembly Rules stipulated what the Disciplinary Committee would not involve itself with rather than what it would involve itself with:

The Disciplinary Committee, at the Speakers request, must investigate any alleged infringement by an Assembly Member except an infringement that involves the privileges or proceedings of Parliament or a breach of the Code of Conduct contained in the schedule to the Joint Rules.

He stated that the committee was thus simply investigatory and advised the Speaker. The Speaker would request the Disciplinary Committee to investigate the matter, consult the financial officer and on that basis attempt, establish whether there was in fact an infringement and then advise the Speaker. The Disciplinary Committee was advisory only and could not impose any sanctions itself.

The Chair stated that there were a number if problems. The first was that there was no clear definition of the ‘conduct’ that would authorise the committee to take disciplinary action, and theoretically the Disciplinary Committee was an advisory body alone. It was unclear whether Parliament intended its committees to devise rules to deal with instances such as the De Lille case. Secondly, clarity was needed as to whether the Act actually contemplated the creation of a specific committee by the rules of Parliament, or whether Parliament could impose the functions of a Section 12 committee on an existing committee of Parliament rather than creating one.

Mr Jeffrey replied that these concerns were answered in the document as it indicated that Section 12(2) required the establishment of such a committee in each House, and allowed for an existing committee to perform the functions of a Section 12 committee.

The Chair stated that Adv Jenkins had indicated the dichotomy between the various types of committees by highlighting that the Section 12 committee dealt primarily with contempt issues, whereas the Disciplinary Committee dealt with financial transgressions which did not necessarily fall under contempt.

Mr Jeffrey stated that the incident involving comments exchanged between Members of Parliament outside Parliament did not constitute contempt, because it did not take place within Parliament.

The Chair agreed and stated that the issue here was whether Parliament itself had sufficient grounds to hear the matter, because it involved two Members of Parliament.

Adv Jenkins replied that Section 12(5) of the Act dealt with the suspension of Members, but only on the grounds of contempt. Classification was needed on the role to be played by such ad hoc disciplinary committees, especially in De Lille and Maduna-type matters. There were several examples of ad hoc committees that did do disciplinary work.

Mr Hahndiek responded that these disciplinary matters could be introduced by a substantive motion by resolution of the House. The De Lille and Maduna matters were not strictly breaches of contempt or parliamentary privilege. Instead they involved a political decision that the remarks made were so grossly disorderly that it needed more than an intervention by the Speaker. For this reason the committee had been established to deal with such cases in which the matter was not covered by the current rules. He stated that the broadening of the Section 12 committee powers would have to be considered.

The Chair suggested that a substantive provision might have to be introduced to expand the powers of the Section 12 committee to deal with matters which did not strictly constitute contempt. It should also deal with common incidents in which Members openly shout out at each other from across the parliamentary floor.

Mr Hahndiek responded that the Code of Conduct and the Joint Rules provided that such Members could be reported to the respective House, because it was inappropriate for the National Assembly Rules to refer to Members of the other House. This was contained in Schedule 2 of the Joint Rules.

The Chair stated that this issue must be flagged for further discussion as to whether it be left at the level of good governance or whether it should be elevated to a rule.

Mr Hahndiek replied that in 2003 this Subcommittee (then headed by Adv de Lange) had introduced interim rules that allowed Parliament to prevent the occurrence of De Lille-like matters. These draft rules were then shelved and the House passed a resolution to implement some sort of penalty for such transgressions, whether via the Section 12 committee or not. This needed to be discussed further.

The Chair requested the Legal Services Office to consider this matter further, and whether the grounds could be expanded beyond merely contempt.

Adv Jenkins noted that he would have to get back to the Subcommittee on the following matters:
- whether the Disciplinary Committee and the Section 12 committee should be merged or not.
- whether the grounds of the Section 12 committee could be expanded to impose sanctions and suspend Members. The suspension of Members was dealt with in the Act, but only on the grounds of contempt. An additional ground of bringing Parliament into disrepute could be included.

Legal representation in Parliamentary disciplinary inquiries
Adv Jenkins stated that the point had been raised at the previous meeting that there were court cases which suggested that legal representation would be allowed in certain disciplinary inquiries. He pointed out that the Hamata and another vs Chairperson Peninsula Technikon case went to the Supreme Court of Appeal which stated that there might well be disciplinary cases that were so complex in nature that, to be procedurally fair, there should be legal representation. This was however not the ruling in the case. It held that the Peninsula Technikon’s rules of internal procedure did not exclude the application for legal representation and, because the Peninsula Technikon did not even allow that request to be forwarded to the committee the Supreme Court of Appeal held that the procedure was flawed. This meant that if the rules clearly excluded legal representation, this situation would not arise. It was once again a policy decision that would have to be made.

His view was that it would be highly unlikely that such a complex case would arise that would necessitate legal representation. It would be risky to allow legal representation because it would complicate the disciplinary inquiries even further. In the final instance if the Member was dissatisfied with the outcome of the inquiry, he could seek legal representation and take the matter to the High Court. The schedule to the document handed out contained a guide to fair administrative procedure.

Mr Jeffrey stated that allowing legal representation would not work for small or single Member parties, because they would have to get a Member from another party to represent them. Secondly, Mr Jeffrey asked whether there were other similar procedures that did not allow legal representation in such cases.

Adv Jenkins replied that he would have to get back to Members on Mr Jeffrey’s second question. He indicated however that the other procedures involved mostly labour law cases. The cost implications would be a major reason for not allowing legal representation.

Adv H Schmidt (DA) stated that it would be unfair to those persons involved who had no legal background, to not have legal representation.

Mr Jeffrey suggested that the general be that no legal representation be allowed in disciplinary hearings, but the Disciplinary Committee should then be granted the discretion to allow legal representation when complex matters arose.

The Chair stated that clearly matters that involved a minor penalty and which were clear matters did not need legal representation. It would also be a more cost-effective option not to have legal representation. There would of course be circumstances in which a severe penalty could be imposed, such as the travel voucher scams. It all depended on the circumstances and complexities of each case.

Confidentiality of documents
Adv Jenkins stated that two issues were identified here. Firstly it involved a document before a parliamentary committee which the committee believed was confidential in nature, and the committee decided to restrict access to the documentation. The National Assembly Rules, NCOP Rules and Joint Rules authorise the committee to do this. The second was the situation in which a witness appeared before a committee and stated that access to documentation or information could not be provided to the committee. There were rules in the Constitution which prevented access of certain documentation, as well as the Intelligence Services Oversight Act which stipulated that intelligence documentation would only be considered by Parliament’s Joint Standing Committee on Intelligence which was closed to public access. There were also common law legal privileges which prevented a committee from compelling a witness to testify before it.

He stated that he was of the view that, instead of spelling out each and every situation in the rules, they should instead provide "except where such evidence or documents are protected by legal privilege or legislation". The document lists the grounds in the Promotion of Access to Information Act (POATIA) on which access to documentation could be refused, yet it was not ideal for an institution such as Parliament. It was thus proposed that the general rule suggested above be followed because it allowed Parliament to get around those exceptions by virtue of its oversight function. The existing rules preventing publicity of documentation was thus adequate.

Mr Jeffrey approved of the general rule proposed by Adv Jenkins, but stated that the matter would have to be discussed further.

Mr Hahndiek noted that the leaking of confidential information would constitute contempt of Parliament. Furthermore, the Joint Standing Committee on Ethics required all Members to undertake an oath to observe the rules of that committee, and a similar oath could be imposed on Members of the Section 12 committee.

Adv Jenkins commented that the remainder of the Guide document contained less substantial issues.

Repeated contempt
Adv Jenkins proposed that offending Members could perhaps be suspended for this offence, but draft rules would have to be devised.

Pro forma summons
Adv Jenkins said that these summons would be drawn up by Parliament’s Legal Services Office in any event, as that unit fell under the Secretary of Parliament.

Comparative Study on Roles and Functions of Disciplinary Committees in Bicameral Parliaments
Mr Hahndiek stated that Dr Ismail, who had drafted the document, was unable to attend today’s meeting. He presented the study (document attached) which outlined the manner in which the Australian, Indian and United Kingdom privilege committees operated.

Discussion
The Chair asked Mr Hahndiek to indicate how a privilege matter was initiated by the Act.

Mr Hahndiek replied that the Act did not deal with the process. The Rules did allow for any Member to be interrupted in the House on a point of order or on a point of privilege, and thus issues can and may need to be brought urgently to the House by way of notice that a serious breach of privilege may have occurred. At that stage the Speaker would not take the matter any further but would instead start a process to assess the information available and give the Member the opportunity to move a formal motion in the House for the matter to be dealt with formally. The requirement was that the House should be informed at the earliest opportunity because it could impact on the current sitting of the House.

The Chair questioned whether a special rule should not be introduced to deal with the initiation of proceedings.

He asked whether breach of privilege was synonymous with contempt.

Adv Jenkins responded that privilege including freedom of speech in the House was not covered by the Act. The Powers and Privileges Act generally referred to issues of obstruction, where a Member or staff member was prevented from performing their functions as well as inducing Members to ask certain questions or to vote in a particular way. The privilege of freedom of speech was probably what the Act had in mind under "or other issues of contempt identified or set out in the standing rules".

The Chair stated that the current framework thus did not accommodate the De Lille type scenario.

Mr Jeffrey requested a list of the other Westminster system countries that were consulted, as well as their classification of privilege. He also sought clarity on the relationship between the Section 12 committee and the Ethics Committee in other jurisdictions.

The Chair suggested that the Act should have dealt with circumstances such as the De Lille case, and this committee should interact with the Rules Committee on this.

Mr Hahndiek said that it was still uncertain whether the mandatory establishment of a Section 12 committee prevented the House from ever establishing an ad hoc committee, rather than using the Section 12 committee to deal with a particular case.

Mr Jeffrey stated that the House could decide to establish an ad hoc committee because it felt that specialised expertise was needed to deal with a specific issue. Perhaps the discretion should be granted to the House to establish either the Section 12 committee or the ad hoc committee in such cases.

The Chair commented that clarity was needed on these matters.

The meeting was adjourned.