INTERIM REPORT OF JOINT SUBCOMMITTEE ON DELEGATED LEGISLATION ON SCRUTINY OF DELEGATED LEGISLATION

29 OCTOBER 2002

CONTENTS

Introduction

Chapter 1: Constitutional mandate

Chapter 2: Original legislation

Chapter 3: Delegated instruments with legislative status

Chapter 4: Delegated instruments without legislative status

Chapter 5: Making delegated legislation accessible

Chapter 6: Scrutiny mechanism

Chapter 7: Scrutiny criteria

Chapter 8: Role of NCOP (section 146(6))

Chapter 9: Interim scrutiny mechanism



INTRODUCTION

No modern state can be effectively governed without the legislature granting to the executive the authority to ‘make law’, in a delegated capacity, to supplement Acts of Parliament. Strictly speaking this delegated/subordinate/ secondary legislation is a contravention of the principle of the separation of powers, but one that is indispensable for the flexible and expeditious governmental response to unforeseen developments in the reality of daily life.

Parliamentary scrutiny of delegated legislation forms a critical element in any modern system of constitutional democracy and has the potential to enhance constitutional values and principles, improve the quality of Acts of Parliament and save legal costs and court time in the future by anticipating challenges to the constitutional validity of such legislation. It is a form of scrutiny which is widely practised in different ways in other constitutional democracies.

What remains critical is that Parliament should create the legislative framework within which such delegated law-making capacity occurs and that it should also retain the authority (and therefore have the capacity) to monitor and regulate the use of that power by the executive.

In contrast to the principle of assigning power, the principle of delegating power, as a concept of law, does not mean that whomever delegates the power loses it. Nothing prevents Parliament from revoking a delegation of law-making power to another functionary. Equally, nothing prevents Parliament, through a subsequent enactment, from legislating on the same matter, thereby annulling a rule or regulation that was made in terms of such a delegated power.

Parliament’s power to delegate its legislative authority has been confirmed by the Constitutional Court in Executive Council of the Western Cape Legislature and Others v President of the Republic of South Africa and Others. The Court found that there is nothing in the 1993 Constitution that prohibits Parliament from delegating subordinate regulatory authority to other bodies and that the power do to so is necessary for effective law-making. The power to delegate legislative authority is implicit in the power to make laws for the country and under the 1993 Constitution Parliament can pass legislation delegating legislative functions to other bodies.

The position under the 1996 Constitution is the same. The reference in section 101(3) to instruments of subordinate legislation under the heading "Executive decisions" supports this. The executive derives the power to make such legislation from an Act of Parliament. However, the Constitutional Court found that there is a difference between delegating authority to make subordinate legislation within the framework of a statute under which the delegation is made and assigning plenary legislative power to another body, including the power to amend or repeal the Act under which the assignment is made.

Subject to the Constitution, Parliament cannot delegate the power to make, amend or repeal Acts of Parliament. This limitation must be kept in mind in drafting any provision that aims to delegate regulatory legislative authority to the executive.



CHAPTER 1

CONSTITUTIONAL MANDATE

The constitutional imperatives for the scrutiny of delegated legislation are contained in sections 101 and 140 of the Constitution.

The subsections of section 101 pertaining to national delegated legislation are the following: -

(3) Proclamations, regulations and other instruments of subordinate legislation must be accessible to the public;

(4) National legislation may specify the manner in which, and the extent to which, instruments mentioned in subsection (3) must be -

(a) tabled in Parliament; and

(b) approved by Parliament.

Parallel provisions in respect of provincial government are to be found in sections 140(3) and (4).

It is clear that the Constitution requires two things with regard to delegated legislation. Firstly, delegated legislation should be made accessible to the public, as that provision is mandatory. Secondly, the Constitution gives Parliament a discretion as to whether or not to devise a mechanism that will specify the manner and extent to which proclamations, regulations and other instruments of subordinate legislation must be tabled and approved.

Parliament has to decide whether it is feasible or desirable, after having delegated its law-making authority to another body, to require subordinate instruments to be scrutinised.

Section 17 of the Interpretation Act requires all subordinate instruments to be tabled in Parliament. The status quo, therefore, is that where legislation is silent on the tabling of delegated legislation, section 17 of the Interpretation Act becomes applicable.

The Constitution distinguishes between tabling and approval. It can, for example, be decided that all delegated instruments have to be tabled but not all have to be approved. If Parliament decides in favour of approval, a further decision will have to be made about whether it means the same kind of approval for all delegated instruments.

The Constitution states that a scrutiny mechanism may be set out in legislation. This is discretionary. The regulatory framework for such a mechanism could either be set out in legislation, the Rules of Parliament or in guidelines, or various aspects could be included in one or more of these vehicles. Most jurisdictions use legislation to set out the skeletal framework for a scrutiny mechanism, including procedures for approval and disapproval. In addition, they make use of the internal Rules of Parliament to set out the terms of reference of the relevant mechanism and grounds or criteria against which the delegated legislation can be measured.

In terms of section 57 of the Constitution, Parliament may determine and control its own internal arrangements, proceedings and procedures, including making rules and orders concerning its business.

It may be preferable to set out the scrutiny mechanism in an Act, so that a person or body tabling delegated legislation can know in advance what the requirements are. The terms of reference of the scrutiny mechanism, scrutiny criteria and procedures can be set out in the Rules. However, there is nothing precluding Parliament from setting out the whole mechanism in either legislation or in the Rules or deciding which elements should be dealt with in either.

In the United Kingdom, the scrutiny mechanism and procedures are contained in the Statutory Instruments Act of 1946. Two types of scrutiny take place:

In Canada the Statutory Instruments Act of 1971 defines the parameters of parliamentary control over delegated legislation, whereas in Zimbabwe the Parliamentary Legal Committee, the committee responsible for the scrutiny of delegated legislation, exists in terms of section 40A of the Zimbabwean constitution, while the appointment of the committee is provided for in the Parliament of Zimbabwe’s standing rules and orders.

RECOMMENDATIONS:

The provisions of section 101(4) could be interpreted as –

The Joint Subcommittee on Delegated Legislation agrees that Parliament has a discretion as to the extent and manner in which delegated legislation may be tabled and approved.

It therefore RECOMMENDS: That –

  1. The proposed legislation can provide for: -
    1. Parliamentary committees to specify, when drafting a bill,
      1. which matters are to be dealt with in a delegated instrument;
      2. whether the instrument is
        1. a legislative instrument (an extension of the law), in which event its tabling and approval would be required, unless exempted by the relevant enabling statute with the approval of the scrutiny committee; or
        2. an administrative instrument (it has no binding legal status), in which event tabling and approval would not be necessary, unless specifically required in the enabling statute;
    2. the timeframes within which delegated legislative instruments are to be tabled and approved or disapproved and procedures to be followed in that regard.
  1. Matters pertaining to the internal arrangements of Parliament, such as the nature of the scrutiny mechanism, its composition, powers and functions, and so forth, can be provided for in the Rules of Parliament.


CHAPTER 2

ORIGINAL LEGISLATION

The mandate of the Joint Subcommittee on Delegated Legislation does not necessarily include investigating a parliamentary mechanism for the review of compliance of original legislation (bills) generally with the obligations imposed by the Constitution, important though such review is. However, before one can start looking at delegated legislation and its scrutiny, one has to look at original legislation, because that is where the question of delegation arises. That is where legislators decide which aspects they are not going to legislate upon, but are rather going to defer them to the executive to legislate by way of regulations. The drafting and interpretation of regulation-making powers in original legislation are, therefore, at the heart of any scrutiny of, and control over, delegated legislation.

In some countries where delegated legislation is scrutinised, the scrutiny also extends to original legislation, not generally but in respect of aspects that involve the delegation of law-making power. The scrutiny mechanism will then determine whether it agrees with a matter being deferred for regulation or not. The House of Lords in the United Kingdom, for instance, has a Delegated Powers and Deregulation Committee that scrutinises and reports on all public bills before they reach the committee stage in the House, looking at each power which would enable a Minister to make secondary legislation. That committee pays special attention to what is commonly known as "Henry VIII powers", those provisions in a bill which will enable a Minister to amend or repeal original legislation by subordinate legislation. In South Africa the Constitutional Court has ruled that doing the latter is unconstitutional.

In New Zealand, the Legislation Advisory Committee is an official "watchdog" made up of lawyers and judges appointed by the Minister of Justice. Ministers may refer bills to this committee for comment and the committee exercises a scrutiny function of all legislation independently.

A consideration regarding the constitutionality of the provision in an Act of Parliament delegating legislative authority to the executive concerns the scope and exercise of that delegated authority. The extent of the authority granted to a member of the executive or an organ of state to make delegated legislation must be founded in primary legislation. The constitutionality of such authority will naturally also come into question when the delegated legislation itself is scrutinised with respect to its constitutionality. The Constitutional Court has remarked that it is the legislature that must take care, when legislation is drafted, to limit the risk of an unconstitutional exercise of the discretionary power it has conferred. To this extent the constitutionality of Acts of Parliament or original legislation may be the subject of scrutiny in terms of any mechanism adopted for the scrutiny of delegated or secondary legislation.

While scrutiny of the end product of delegation is important, an examination of the original legislation that delegates the power is also significant. Whatever mechanism is adopted should, as a result, be mandated to keep track of those clauses of bills which delegate law-making power to the executive and to draw attention to any such delegation which appears to be unlawful or improper. The provision in original legislation that delegates legislative power should therefore set out, as clearly and precisely as reasonably possible, the scope within which the delegated legislative authority should be exercised, subject to the Constitution.

Any body scrutinising original and/or delegated legislation should, naturally, not usurp the critical role of the portfolio and select committees in the legislative process. Nor should the activities of such a body in any way be seen as detracting from the authority of the Constitutional Court as the final arbiter of the constitutionality of any law or governmental action in South Africa.

In New Zealand the Regulations Review Committee, in addition to examining regulations and considering draft regulations referred by a Minister and reporting on them to the Minister, also considers any regulation-making powers in bills before select committees and reports to the relevant committees. The committee’s power is one of recommendation only.

In 1961 the Committee on Delegated Legislation of New Zealand agreed to a standard form of empowering provision that had been adopted by the government. The standard form set out a list of specific topics, followed by a general power, that dealt with subsidiary or incidental matters. The committee recommended that regulation-making powers in bills should be drafted as closely as possible in accordance with the approved model to ensure that: -

The Regulations Review Committee, as a starting point, looks at whether a regulation-making power conforms to the standard format and the principles identified by the Committee on Delegated Legislation.

RECOMMENDATIONS:

The Joint Subcommittee on Delegated Legislation is of the opinion that the scrutiny of delegating provisions in original legislation will limit the risk of an unconstitutional exercise of the discretionary power Parliament is conferring.

It therefore RECOMMENDS: That if a scrutiny mechanism is set up, its mandate be extended to include the scrutiny of the delegating provisions in enabling legislation against criteria provided for in the Rules of Parliament.



CHAPTER 3

DELEGATED INSTRUMENTS WITH LEGISLATIVE STATUS

Subordinate or delegated legislation is legislation enacted by the executive "to regulate in greater detail matters provided for by the original enactments in outline form".

This is necessitated by:

Other factors motivating for the use of delegated legislation are: -

It has to be decided whether or not to propose a definition of delegated legislation. If a definition is required, it can either be done by way of exclusion, ie by indicating what types of instruments will be excluded from that definition; by way of inclusion, ie by indicating what types of instruments will be included; or by attributes, ie by defining the character or elements that make up delegated legislation.

Delegated legislation has two basic ingredients, namely -

Furthermore, the Constitution mentions the following instruments with regard to scrutiny:

Below is a list of common instruments used in South Africa and the purpose for which they are used:

As in most jurisdictions, a problem of nomenclature exists in respect of delegated legislation. People talk about proclamations, regulations and rules as if they are interchangeable and often no differentiation is made between the various instruments.

It has to be decided which of these categories should be subjected to parliamentary scrutiny. A view was expressed that not all instruments of subordinate legislation require parliamentary scrutiny. While all instruments of subordinate legislation can be tabled, it is not necessary for all of them to be scrutinised or approved formally. For example, a proclamation issued by the President to put an Act of Parliament into operation should not necessarily require parliamentary scrutiny.

When the President assents to an Act of Parliament, which gives that Act the status of law, the President is exercising original constitutional authority in terms of sections 84(2)(a) and 85(2)(a). The action of assenting to an Act must be distinguished from that of a proclamation announcing the commencement of an Act. Only when the date of assent is not the date of commencement and that date has to be fixed by the President by way of a proclamation, is the President acting in terms of an Act of Parliament and not the Constitution. In such a case it will be a delegated function, as sanctioned in the Act itself.

In order to determine whether an instrument of subordinate legislation should be scrutinised, one needs to establish whether that particular instrument is authorised by Parliament, whether it is of a legislative nature and, sometimes, even what the purpose of the instrument is. For example, although proclamations are an important type of subordinate instrument, not all proclamations are of a legislative nature nor do they all serve the same purpose.

RECOMMENDATIONS:

The Joint Subcommittee on Delegated Legislation is of the opinion that subordinate instruments of a legislative nature fall within the purview of Parliament’s constitutional mandate in respect of scrutiny.

It therefore RECOMMENDS: That subordinate instruments of a legislative nature be included in the requirements for tabling and approval as may be prescribed in the proposed standard-setting legislation, save as be may directed otherwise in original legislation by a parliamentary committee and provided that such exclusion is approved by a scrutiny mechanism.

 

CHAPTER 4

DELEGATED INSTRUMENTS WITHOUT LEGISLATIVE STATUS

The question arises whether instruments such as codes of practice and directives issued by various authorities or organs of state constitute delegated legislation. There are a myriad of such instruments, all with varying degrees of legislative authority. Some could be applicable to a particular institution, while others could be applicable both extrinsically and intrinsically. For example, the rules of court are made by a rules board and relate to court procedures. If they are not followed, the whole legal cause could be dismissed. These rules affect people’s rights and, as such, are just as valid as laws or statutes. Any enquiry would therefore have to focus on whether they are authorised by an Act of Parliament, made by an organ of the executive and are legislative in nature.

Baxter: Administrative Law, 1984 refers to instruments such as departmental circulars, guides, directives, minutes and rules which are necessary to guide the conduct of officials in the exercise of discretionary administrative power or to inform members of the public about the general policies that are likely to be followed when such administrative powers are exercised. Examples are circulars sent by the Chief Registrar of Deeds to the various registries and made available to conveyancers, as well as the Legal Aid Guide issued to legal aid officers and members of the public by the Director of Legal Aid.

Baxter states that some of these instruments are issued without clear statutory authority and that their validity may be questioned. He refers to them as "administrative quasi-legislation". According to him, such instruments have varying legal status, but where an Act of Parliament anticipates (though not necessarily requires) their creation, the courts incline towards affording them legal recognition and enforceability.

An argument can be made, however, that subordinate instruments that are of an administrative nature rather than a legislative nature fall outside the purview of the constitutional mandate of Parliament as set out in section 101(4). It is, therefore, not a matter of preference as to whether or not they should be included when considering the tabling or approval of subordinate instruments, but of a proper interpretation of the Constitution.

Currently some instruments, for example the rules made in terms of the Magistrates Court Act and the Legal Aid Guide, are tabled and referred to the relevant portfolio or select committees, though it is not clear whether they are scrutinised or not. Provided that a body or person making such instruments is an organ of the executive, has been given the law-making or rule-making authority by an Act of Parliament and the instruments are of a legislative nature, then such instruments ought to be scrutinised by Parliament.

There are subordinate instruments such as the rules made in terms of the Supreme Court Act which are made by a board in or after consultation with the Minister for Justice and Constitutional Development. The Minister therefore has an oversight role, but not Parliament. In such cases consideration can be given to a three-tier system of oversight, but then it would also have to apply to all delegated legislation produced by bodies other than executive functionaries such as Ministers. On the other hand, a decision could be taken to exempt such instruments from parliamentary scrutiny. It has to be kept in mind, however, that the executive does not have a constitutional mandate empowering it to scrutinise delegated legislation, while Parliament has such a mandate. The executive, in such an instance, derives its power of scrutiny over a statutory body performing a regulatory function from the relevant statute.

RECOMMENDATIONS:

The Joint Subcommittee on Delegated Legislation is of the opinion that subordinate instruments of an administrative nature do not have legal status and do not fall within the purview of Parliament’s constitutional mandate in respect of scrutiny.

It therefore RECOMMENDS: That subordinate instruments of an administrative nature be excluded from the requirements for tabling and approval as may be prescribed in the proposed standard-setting legislation, save as be may directed otherwise in original legislation by a parliamentary committee.

 

CHAPTER 5

MAKING DELEGATED LEGISLATION ACCESSIBLE

Section 101(3) of our Constitution provides that "proclamations, regulations and other instruments of subordinate legislation must be accessible to the public". South Africa has a plethora of subordinate instruments and the concern is that while all people have an obligation to act within the law, there is a corresponding obligation on the state to have the law readily available in its most up-to-date form. The question is whether it is the responsibility of Parliament to ensure the accessibility of subordinate instruments such as regulations or whether the executive carries that responsibility.

Section 101(4) provides that national legislation may specify the manner in which, and the extent to which, instruments mentioned in subsection (3) must be (a) tabled in Parliament, and (b) approved by Parliament. On the face of it, section 101(3) is imperative and does not state which arm of government is responsible for ensuring access to instruments of delegated legislation. However, read in the context of Chapter 5, it becomes clear that the obligation to ensure access to instruments of delegated legislation falls on the executive.

For the purpose of elucidating a provision in a particular section of a statute, the Constitutional Court has referred to the headings of that section. In both S v Makwanyane as well as President of the RSA v Hugo the Constitutional Court applied this rule and used the headings of sections in the Constitution to clear up the meaning of those sections.

There is no reason not to apply it to the present case. Section 101 is headed "Executive decisions". The section fits into Chapter 5 of the Constitution, which is headed "The President and the National Executive". There can thus be no doubt that the executive arm of the state must ensure that instruments of delegated legislation are accessible to the public.

Section 101(3) must also be read within the aim of the Constitution. Starting with the preamble, which sets the aim for a democratic and open society, the theme of "a new order based on democracy and an open society in South Africa" runs like a "highlighted strand" through the material that makes our Constitution. Section 1(d) provides for "openness" as a founding provision. The bill of rights entrenches the right to access to information and the limitation clause, section 36, in fact proscribes any limitation on the rights in the bill of rights if that measure is not justifiable in an open and democratic society. Section 39, the interpretation clause, mandates a court, tribunal or forum to promote the values that underlie an open and democratic society when interpreting the bill of rights.

In the search for the meaning of section 101(3), Parliament’s role in creating an open society should also be considered. Besides Parliament’s legislative and oversight functions, the Constitution is clear that the Houses have a core function of providing a national forum for the consideration of issues.

Within the purpose of the Constitution relating to openness and Parliament’s function to provide a public forum for discussion of issues, the way in which Parliament decides to deal with instruments of delegated legislation in terms of section 101(4) should also take into account public access during this process, as provided for in sections 59 and 72.

The role of Parliament in section 101(3) is therefore not an additional obligation on Parliament to provide public access to instruments of delegated legislation. It merely means that Parliament, in deciding how to deal with subordinate legislation, must also take cognisance of its role in providing a forum for public consideration of such instruments. Acting in terms of sections 59 and 72, it will achieve this.

At present regulations are published in the Gazette with the assumption that the Gazette is accessible to the public. There is, however, room for improving the existing procedures relating to accessibility.

Sections 15, 16, 16A and 17 of the Interpretation Act support the prominent role of the executive in ensuring the accessibility of instruments of delegated legislation. These sections provide for the publication of proclamations, ordinances, Acts of Parliament and other enactments having the force of law in the Gazette. Specifically section 17 underlines the prominence of the role of the executive in that it mandates the executive to submit to Parliament a list of the proclamations, government notices and provincial notices under which rules and regulations have been published in the Gazette.

As far as Parliament is concerned, the need possibly to provide a period for public comment and participation after tabling has to be balanced with the understanding that regulations often have to be implemented urgently. Provision could be made for such instances.

One has to ask whether the accessibility of subordinate instruments also includes the language used and if it means that such instruments have to be made available in all official languages. Section 6(3)(a) determines that "the national government and each provincial government must use at least two official languages" for the purposes of government.

For an extended period countries such as Zimbabwe and South Africa were governed by means of delegated legislation, as it was convenient for the purposes of control. In Zimbabwe, for example, a number of statutory instruments made by ministers of the government of the Federation of Rhodesia and Nyasaland are still in force. However, the public cannot access these regulations as they are out of print. The same probably holds true for South Africa.

Regulations remain in force until they are repealed by the authority concerned or the parent Act is amended or repealed so as to nullify the delegated legislation made in terms thereof. Consideration can be given to subjecting all subordinate legislation to "sunsetting", ie for such instruments to have a limited life of say five years, after which they will have to be re-enacted and thus re-scrutinised as regards form and content. In addition to keeping a central register of all Acts and their delegated instruments, such a provision will ensure that all subordinate instruments are up to date and will improve their accessibility.

RECOMMENDATIONS:

Parliament can propose to the executive that it should investigate innovative ways of making subordinate instruments more accessible. That could, inter alia, include the following:

The Joint Subcommittee on Delegated Legislation therefore RECOMMENDS: That the executive, as it has the primary responsibility to make instruments of delegated legislation accessible, considers the proposals listed above and determines which would be practical to implement, while Parliament considers including a "sunsetting" provision in the envisaged standard-setting legislation.



CHAPTER 6

SCRUTINY MECHANISM

Currently there is no formal mechanism for the scrutiny and approval of original or delegated legislation in South Africa. However, the majority of Acts of Parliament require that regulations made in terms of the parent Act be tabled and/or approved in Parliament. This requirement is not uniform in all Acts: -

There can be no doubt that requiring the tabling of instruments of delegated legislation in Parliament is one of the most important and simple steps to foster executive accountability and legislative regulation. The development of electronic technology in recent times makes this step all the more feasible, and most countries require this as a rule.

Furthermore, section 17 of the Interpretation Act provides that when the President or any Minister is authorised by law to make rules or regulations, a list of the proclamations and government notices under which such rules or regulations were published in the Gazette must be tabled in Parliament.

Tabling on its own represents a formal or superficial acknowledgement of the executive’s responsibility to the legislature. Most constitutional systems, however, require something more than mere tabling and the two most frequent methods used are to subject all delegated legislation to a procedure for either approval or disapproval by Parliament. Some mechanism is thus established and some process devised whereby a greater degree of scrutiny by Parliament is applied to delegated legislation.

An option will be for portfolio and select committees, in considering original legislation, to categorise the delegated instruments envisaged, if any, and by such categorisation to predetermine the process to be followed in respect of such instrument, for example whether it will have to be tabled and approved or only tabled. A parliamentary committee can also decide to exempt a particular subordinate instrument from approval requirements.

In terms of its constitutional mandate, Parliament has the discretion to create internal mechanisms for the scrutiny of delegated legislation. The scrutiny can take place through the portfolio and select committees that are responsible for the parent legislation or a specialist committee can be set up that will be in a position to deal with the substantive issues and technical aspects of the subordinate instruments.

If the powers of a scrutiny committee is extended to include the scrutiny of the enabling provisions in original legislation, it can be decided that a portfolio or select committee that wishes to exempt delegated legislation from scrutiny should first obtain the approval of the scrutiny committee. The scrutiny committee will then have to decide whether it actually wants to grant such approval.

A specialist committee can involve the portfolio and select committees in a manner similar to the practice followed by the Standing Committee on Public Accounts, which scrutinises the accounts of all departments. Scopa, when examining the accounts of a particular department or institution, often invites the relevant portfolio or select committee to attend its proceedings.

A comparative study indicates that most jurisdictions prefer to have a specialised committee (joint or separate or both) that specifically considers delegated legislation. In some cases the committee is assisted by legal officers who undertake an initial scrutiny against predetermined scrutiny criteria and alert the committee to problematic instruments.

In Australia the committee is assisted by legal counsel, while in Canada a legal official prepares an Alert Digest. The Australian scrutiny committee has the added task of acting as a watchdog over human rights. Zimbabwe’s Parliamentary Legal Committee is constituted in such a manner that the majority of the members are legally qualified.

The Westminster Parliament has had a Joint Standing Committee on Statutory Instruments since 1946 which meets most weeks when Parliament is sitting and scrutinises all "statutory instruments". Instruments dealing with financial matters are dealt with by the House of Commons only. In addition, each House has a separate committee to consider statutory instruments. The task of the committee is to "consider" statutory instruments (in draft and final form) and "draw the attention" of the Houses to potentially problematic instruments.

The committee does not debate the merits of statutory instruments, but only ensures that they are in accordance with the provisions of the parent Act and are properly drafted. It appears that the committee only reports to the House on the problematic instruments. In 1998, it reported on 214 out of 2 600. Even where the statutory instrument goes beyond the power of the parent Act, neither Parliament nor the government is obliged to take action, but the government usually accepts the recommendations of the committee and amends the instruments.

In the South African context the question is whether this function can be adequately carried out by the portfolio and select committees that deal with the parent legislation, particularly given the constraints in respect of capacity and time; whether it should be performed by separate committees for the two Houses; or by a joint committee.

It must be borne in mind that more than 90% of legislation that is passed by Parliament is section 75 legislation. Consideration has therefore been given to the role of the NCOP in the scrutiny of subordinate instruments emanating from such legislation. As section 75 legislation is usually approved by both Houses, it is envisaged that the role of the NCOP will not be different to that of the National Assembly. However, if required, a different role for the NCOP with regard to section 76 legislation can be included in the enabling provisions of a parent Act.

Prof Hugh Corder, in his report to the subcommittee, expresses the view that a specialised joint committee will be the most suitable structure to carry out the scrutiny function.

If it is decided that a joint committee is the most suitable mechanism for the scrutiny of delegated legislation, it will have to be determined how it should be constituted; whether its members will require specialist skills; what capacity and support it will require; whether the committee will look at the full spectrum of delegated legislation, at subordinate instruments with legislative statuts or monitor randomly; how the committee will rate in terms of seniority; and how much weight will be attached to a committee pronouncing itself on matters of constitutionality.

Also, a decision will be required as to where such a scrutiny committee will be placed in the current structure of Parliament, what powers it will have in terms of the Rules of Parliament and to whom it will be accountable. If, for example, such a committee is to be attached to the Joint Rules Committee, certain practical considerations will have to be taken into account, such as the timeframes for approval contained in the subordinate instruments. The Joint Rules Committee generally only meets once in a parliamentary term. If the approval by the House of an instrument is required within 30 days, for instance, the task of the scrutiny committee can be complicated if it first has to submit its recommendations to the Joint Rules Committee before they can be submitted to the Houses for approval.

In Kenya, section 34 of the Interpretation and General Provisions Act provides that all delegated legislation made under any Act must be laid before the National Assembly without unreasonable delay. The Assembly may then annul the legislation within the following 20 sitting days without prejudice to the validity of anything already done in terms of that legislation. The only exceptions are if the parent Act dispenses with the tabling requirement or if the delegated legislation has already been approved by the Assembly in advance. In both instances, therefore, the Assembly has the determining word.

The New Zealand situation provides good evidence of the efficacy of a range of measures, within the executive, the legislature and outside these, which work interdependently to ensure accountability and to attempt to prevent unlawful encroachment on rights and interests.

New Zealand has three formal mechanisms and an extraparliamentary reference point to scrutinise subordinate legislation. Firstly, the Cabinet Office Manual, a publicly available printed booklet, outlines the processes to be followed by Ministers and their departments before proposing delegated legislation to the powerful Cabinet Legislation Committee and the House of Representatives. Only proposed delegated legislation which follows this route will be allowed to proceed to the House. The Attorney-General, equivalent to our Minister for Justice and Constitutional Development, must report to the House in similar fashion on any bill which potentially breaches the bill of rights. Naturally, when a bill includes a provision granting a very wide discretion to the executive to make delegated legislation, this may possibly encroach upon fundamental rights. The Regulations Review Committee of the House is a select committee, established and given jurisdiction by the Standing Rules and Orders.

The Regulations Review Committee, which is chaired by an opposition MP and operates in a nonpartisan manner, is said to work very well, being remarkably fearless in criticising any executive abuse of delegated legislative power. It is the only one of 13 select committees in the New Zealand House to be assisted by legal counsel. Scrutiny by this committee forms the basis of any recommendation to the House or motion for disallowance under the Regulations (Disallowance) Act of 1989.

The US Congress recently adopted a new system for advance review of regulations, replacing the legislative veto of regulations which the Supreme Court had declared invalid a few years ago The Comptroller General is required to report to Congress within 15 days, to assess compliance with required procedures, whereafter Congress has the power of disapproval by joint resolution within 60 sitting days of the submission of the report. On state level, California has a rule-making review agency which performs a court-like function of review, but prior to the adoption of the delegated legislation.

The timeframes involved in the approval of delegated instruments can be approached in one of two ways. Such instruments can come into operation once they have been scrutinised and approved by Parliament within particular timeframes or they can come into operation within particular timeframes and Parliament will then have to ensure that it engages with such instruments before the set timeframes elapse.

In Zimbabwe, for example, statutory instruments come into operation on the day on which they are published in the Gazette. The Parliamentary Legal Committee is given 26 working days from the end of the month in which the statutory instruments are published to review them and report back to Parliament. If the committee is unable to complete its task within that period, its chairperson may apply for a further 26 working days. If the committee does not report to the House and the chairperson has not applied for an extension, the House proceeds on the basis that the committee has found nothing adverse about the statutory instruments for that month.

RECOMMENDATIONS

The Joint Subcommittee on Delegated Legislation is of the opinion that a specialist joint committee is the most appropriate mechanism for the scrutiny of delegated legislation and the delegating provisions in enabling legislation.

It therefore RECOMMENDS: That the following be considered –

 

CHAPTER 7

SCRUTINY CRITERIA

Criteria for the scrutiny of subordinate instruments are practically uniform in most jurisdictions and are usually set out in legislation. They include, inter alia, checking –

Within this general framework, which is widely applied, some constitutional systems take the process further. One particular means employed in some systems more recently is the requirement that the executive authority which proposes the delegated legislation must carry out some form of cost-benefit analysis - in financial or socioeconomic or environmental terms - or impact study, the outcome of which must be appended to the proposed legislation for the information of MPs and civil society generally.

Typically, a set of ministerial regulations, either in draft or final form, will be examined by a committee of Parliament and measured according to preordained standards which usually focus on potential contraventions of protected rights or legal principles. Only after this process has been completed will the delegated legislation come into force, and parliamentary approval can be either explicit or implied, ie if Parliament says nothing negative, within a particular period of time, approval will be assumed.

A mechanism for disapproval of a provision in delegated legislation needs to be established. It has been suggested that a "mixed" system can be adopted for expressing disapproval, as follows: where the ground for recommending invalidity is constitutional in nature (eg the unjustified invasion of rights protected in the bill of rights), the joint scrutiny committee should alert the portfolio or select committee concerned, which should have the power to initiate the disallowance procedure in the Houses; while where the basis for recommending invalidity is "technical" in nature (eg the contravention of the rules of administrative law, such as the requirement of procedural fairness), the joint scrutiny committee should have the power to initiate disallowance.

In either event, three steps should be mandatory prerequisites to the initiation of any recommendation for disallowance: the executive law-maker should be notified at the earliest opportunity of the potential difficulty and afforded a proper opportunity to reply and comply; the relevant portfolio or select committee and all members of Parliament should always be alerted to such perceived shortcomings, whatever the apparent basis; and disallowance should be the prerogative of both Houses, not the joint scrutiny committee or a portfolio or select committee.

In New Zealand a committee interacts with the executive if there has been an unusual exercise of the power given in the parent Act. The committee can also call officials before it to explain what has been done. In Zimbabwe, the House debates cases where the Parliamentary Legal Committee reports adversely on any statutory instrument. At the end of that debate the House may adopt the report, endorsing the opinion of the committee, in which case the relevant Minister will be required to withdraw that instrument.

Scrutiny criteria applied by the Parliamentary Legal Committee of Zimbabwe include determining whether, in its opinion, any provision of a statutory instrument or draft statutory instrument will, if enacted, be in contravention of the declaration of rights or any other provision of the constitution or whether an instrument is ultra vires the enabling act.

RECOMMENDATIONS:

The Joint Subcommittee on Delegated Legislation is of the opinion that all the criteria listed, or a combination of these criteria, can be set out in the Rules of Parliament, together with the terms of reference for a joint scrutiny committee, for application and implementation by the scrutiny committee.

It therefore RECOMMENDS: That -

CHAPTER 8

ROLE OF NCOP

(Section 146(6))

The NCOP has a particular role when there is a conflict between national delegated legislation and provincial delegated or original legislation. Sections 146(3), (4), (5) and (6) of the Constitution read as follows:

  1. National legislation prevails over provincial legislation if the national legislation is aimed at preventing unreasonable action by a province that –
  2. (a) is prejudicial to the economic, health or security interests of another province or the country as a whole; or

    (b) impedes the implementation of national economic policy.

  3. When there is a dispute concerning whether national legislation is necessary for a purpose set out in subsection (2)(c) and that dispute comes before a court for resolution, the court must have due regard to the approval or the rejection of the legislation by the National Council of Provinces.
  4. Provincial legislation prevails over national legislation if subsection (2) or (3) does not apply.
  5. A law made in terms of an Act of Parliament or a provincial Act can prevail only if that law has been approved by the National Council of Provinces.

A narrow interpretation of section 146(6) is that it only refers to a conflict between national delegated legislation and provincial delegated legislation. In accordance with such an interpretation, national delegated legislation will prevail over provincial delegated legislation if that national delegated instrument has been approved by the NCOP within 30 days of its referral to that House. Such a narrow interpretation, however, does not make provision for cases where national delegated legislation is in conflict with provincial original legislation.

A broader interpretation will be that since sections 146(2) to (5) provide for conflict between national original legislation and provincial original legislation in functional areas listed in Schedule 4, it can be argued that with sections 146(6) to (8) the drafters of the Constitution intended providing for cases where national delegated legislation is in conflict with either provincial original legislation or provincial delegated legislation. The Constitution therefore gives the NCOP the power to act as a deadlock-breaking mechanism in such cases by giving it the discretion either to approve or disapprove national delegated instruments within a period of 30 days of it being referred to that House.

Therefore, in respect of the scrutiny of delegated legislation, a mechanism has to be developed, in the context of the broader imperative, to enable the NCOP to fulfil this specific constitutional mandate.

The Constitution requires the NCOP to approve or disapprove national delegated legislation under section 146(6) only if the legislation is referred to it for that purpose. Disapproval by the NCOP does not affect the validity of delegated legislation. Its approval will only be relevant if there is a conflict.

RECOMMENDATIONS:

The Joint Subcommittee on Delegated Legislation is of the opinion that the role of the NCOP in the approval of delegated legislation, as set out in section 146(6), can be accommodated by including a specific provision in the scrutiny criteria of the proposed scrutiny mechanism.

It therefore RECOMMENDS: That a criterion be included in the scrutiny criteria to the effect that the attention of the NCOP must specifically be drawn to subordinate instruments relating to matters contained in Schedule 4 of the Constitution, as its approval of such instruments will play a role in the event of a conflict between such subordinate instruments and provincial delegated or original legislation.

CHAPTER 9
INTERIM SCRUTINY ARRANGEMENTS

At a meeting of the National Assembly Rules Committee on 5 February 2002, it was agreed that the Subcommittee on Delegated Legislation would expedite a separate proposal for an interim mechanism for the scrutiny of ministerial regulations while continuing with the broad task before it.

For the purposes of standardisation and uniformity of norms and standards, it is necessary to have a generic statute similar to the Interpretation Act to override existing statutory arrangements in respect of the tabling of regulations. Such legislation can contain, inter alia, norms and standards with regard to the tabling and approval of regulations and how to make them accessible to the public.

However, it is not considered practical or realistic to create legislation setting out norms and standards for scrutiny only in respect of an interim mechanism. A committee to draft the legislation will have to be established and, moreover, in view of the timeframes involved in passing legislation, such an approach is not feasible in the short term. Parliament should, in the interim, rather explore the option of providing for the parliamentary scrutiny of delegated legislation by an interim scrutiny committee in the Rules of Parliament.

Portfolio and select committees could have been utilised in the meantime to scrutinise regulations pertaining to their scope of work as they are responsible for the consideration of the parent legislation. They would, however, have had to be provided with technical support and legal advice in order to fulfil such a function, as the necessary expertise does not exist in all committees at present, particularly in respect of determining the constitutionality of delegated instruments.

Given the current workload of parliamentary committees, it is probably necessary rather to consider creating a standalone or overarching structure that can process regulations and select issues for the various committees to deal with. In some countries a retired academic or legal expert is used to vet subordinate legislation that has been tabled. He/she then makes recommendations to the relevant committees.

The nature of the capacity required by such a mechanism will be determined by how wide the scrutiny criteria extend. Commonwealth countries are increasingly moving towards also considering the socioeconomic impact of subordinate legislation and other policy issues. However, in considering whether to include the socioeconomic impact of delegated legislation as a criterion, one would have to take into account existing monitoring systems at policy level.

In considering the decision by the National Assembly Rules Committee, it further has to be decided whether only to focus on the scrutiny of regulations or whether to extend the scrutiny to the other forms of delegated legislation identified by the subcommittee.

RECOMMENDATIONS:

The Joint Subcommittee on Delegated Legislation is of the opinion that portfolio and select committees, in view of the time and capacity constraints they are operating under, are not the most appropriate vehicles to conduct parliamentary scrutiny of subordinate instruments in the interim.

It therefore RECOMMENDS: That an interim scrutiny committee be established, the committee to –