Joint Subcommittee on Delegated Legislation - Report on Scrutiny of Delegated Legislation

Meeting report

NCOP RULES COMMITTEE SUBCOMMITTEE ON DELEGATED LEGISLATION
27 October 1999

Relevant documents:
Final Report on Methods for Scrutiny of Legislation by Parliament
Report on Parliamentary Oversight and Accountability

SUMMARY
This subcommittee has been established to establish the role of the NCOP, if any, in scrutinising delegated legislation. Members will attend a briefing by Prof Hugh Corder on a report he and others wrote on parliamentary oversight and accountability, commissioned by the Speaker, which addresses this issue.

MINUTES
Chairperson Mr T Setona welcomed members to this first NCOP subcommittee on delegated legislation. Because the NCOP has not yet formally adopted rules to allow the subcommittee to be formally constituted, the status of the meeting was informal. Later, Mr Setona added that the function of the committee is not to scrutinise delegated legislation, but rather to decide what the scrutiny role of the NCOP should be and to make recommendations to the House. At this stage the committee will not meet regularly.

Background - Ms Des le Roux
NCOP staff member, Ms Des le Roux, said she had been part of a parliamentary delegation which in February 1997 attended a conference of Commonwealth parliaments on delegated legislation. Delegated legislation (also known as subordinate or secondary legislation) includes regulations, ordinances, municipal by-laws and rules (for example, court rules or rules of parastatals) where a legislature has delegated its lawmaking authority, in fact anything other than primary acts passed by Parliament. For example, many Acts include the words 'the Minister may make regulations' - here Parliament is delegating its lawmaking power to the Minister. As a rule Parliament does not check if the Minister's regulations comply with the primary Act and the Constitution, or whether the procedure which has been followed in making the regulations is correct. In its report, the parliamentary delegation suggested that Parliament give consideration to scrutinising delegated legislation. Parliament itself will have to decide on whether it will scrutinise delegated legislation and, if so, what the scope of this scrutiny will be.

In September 1998 a joint committee was formed to decide on this question. The Speaker asked Prof Hugh Corder of the University of Cape Town to look at what the role of Parliament regarding the scrutiny of delegated legislation should be. In his first report, Prof Corder concentrated on the National Assembly (whose scrutiny role is clearly spelt out in the Constitution). Prof Corder was requested to also make recommendations about the role of the NCOP (whose scrutiny role is not clearly spelt out in the Constitution). The final report -'Report on Parliamentary Oversight and Accountability' by Prof Corder, Saras Jagwanth and Fred Soltau [a copy of which is available elsewhere on this website] has been distributed to members of this NCOP subcommittee. Ms Le Roux said the National Democratic Institute is busy writing its own report on the subject, although this is not yet complete.

Discussion
Mr Setona said that although not all members of this subcommittee are also members of the Joint Subommittee on Delegated Legislation, in terms of parliamentary rules, any MP may attend and participate in joint committee meetings. He encouraged members to attend joint meetings and suggested that all attend a briefing to be given by Prof Corder on 15, 16 or 17 November (date to be confirmed) on the report referred to above.

Ms Pandor pointed out that it is not true that there is no parliamentary scrutiny of delegated legislation - for example, the health committee scrutinises Department of Health regulations as a matter of course. What needs to be discussed is a formal scrutiny mechanism for delegated legislation. She said Prof Corder's report gives some indication of what could be done in this regard and the resources this would require. Scrutiny of delegated legislation raises questions about the nature and extent of scrutiny - for example, in the case of provincial competencies such as [primary and secondary] education - would scrutiny include what MECs do?

Mr Surty said that because the decisions of the subcommittee would impact on provincial legislation and provincial regulations, its composition had been carefully considered to make sure that each of the provinces are represent by one full member. This would aid the NCOP in its constitutional role of mediating in conflicts between national and provincial laws. He suggested sending the Corder report to the provincial legislatures for their comments.

Ms Pandor said that although the Corder report dealt with a very important issue and had been tabled some months ago, no political party had made any comments on it. She said until considered responses had been received, the report could only be considered a working document. The report should therefore not be sent to the provincial legislatures until Parliament had agreed on what it should do. The subcommittee would have to study carefully the implications because a wide interpretation of scrutiny of delegated legislation could impinge on other distinct spheres of government. For example, if the NCOP decided to scrutinise municipal by-laws, this might impinge on powers of the local sphere of government. She urged party caucuses to debate the report and adopt a position on it.

In the light of Ms Pandor's comments, Mr Surty withdrew his suggestion that the Corder report be sent to provincial legislatures. He suggested NCOP scrutiny might include ensuring consistency in provincial regulations in terms of, for example, traffic legislation.

Closure
Mr Setona summarised the decisions of the meeting as: 1) Subcommittee members would attend Prof Corder's presentation on his report on 15, 16 or 17 November 2) Political parties would respond to the report and 3) The subcommittee would not meet again until after the next meeting of the Joint Subcommittee on Delegated Legislation. The meeting was adjourned until further notice.