DISCUSSION DOCUMENT FOR MEETING OF JOINT SUBCOMMITTEE ON REVIEW OF THE JOINT RULES ON TUESDAY, 22 AUGUST 2006

Compiled by NA Table

Draft resolution for establishment of interim scrutiny mechanism

That the House, subject to the concurrence of the National Council of Provinces/National Assembly", establishes an Interim Joint Committee on Scrutiny of Delegated Legislation, in accordance with the following interim Rules:

1 Establishment

There shall be an Interim Joint Committee on Scrutiny of Delegated Legislation.

2. Composition

Option 1:

The Committee shall consist of 13 National Assembly members and 9 Council members in accordance with Joint Rule 19

Option 2**

The Committee shall consist of 11 members, as follows: ANC 6 (including 2 Council members); DA 2; IFP 1; and other parties 2.

3. Functions and powers

The Committee shall -

(1) exercise its powers and functions in accordance with the Rules applicable to joint committees generally, unless otherwise provided for in these interim Rules; and (2) scrutinise delegated instruments requiring approval by Parliament and delegating provisions in enabling legislation referred to it in accordance with the scrutiny criteria identified in these interim Rules.

4. Scrutiny criteria

Delegated legislation requiring the approval of Parliament or delegating provisions in enabling legislation shall be scrutinised by the Interim Joint Committee on Scrutiny of Delegation Legislation in accordance with some or all of the following criteria:

(1) whether they impose levies, taxes or duties;

(2) whether they comply with procedural aspects around delegated legislation; (3) whether they impinge on the jurisdiction of the courts;

(4) whether they are retrospective in nature and, if so, whether that is permitted in terms of the parent Act;

(5) whether they conform with the objects of the parent Act;

(6) whether they appear to make unusual use of powers conferred by the parent Act;

(7) whether they have been properly drafted;

(8) whether they trespass on personal rights and liberties, including those set out in the Bill of Rights; or

(9) whether they amount to substantive legislation, as delegated legislation should not purport to replace the parent Act.

5. Reporting

Upon completion of the scrutiny process, the Committee shall -

(1) advise the relevant portfolio or select committee on its findings regarding delegating provisions in enabling legislation;

(2) advise the relevant portfolio or select committee where a recommendation for invalidity of a subordinate instrument is constitutional in nature, the portfolio or select committee then to report to the relevant House and recommend its disallowance;

(3) report directly to the Houses where a recommendation for invalidity of a subordinate instrument is technical in nature; and

(4) in view of the provisions of section 146 of the Constitution, specifically report to the National Council of Provinces on delegated instruments relating to matters contained in Schedule 4.

6. Dissolution

The Committee shall be dissolved by resolution of both Houses.