BRIEFING NOTES FOR COMMITTEE ON PRIVATE MEMBERS' LEGISLATIVE PROPOSALS AND SPECIAL PETITIONS

SUBJECT: NATURE OF COMMITTEE'S CONSIDERATION OF PRIVATE MEMBERS' LEGISLATIVE PROPOSALS

Prepared by K Hahndiek, 6 September 2006

1. CONSTITUTION

(1) The Constitution (See 73 (2)) makes provision for a member to introduce any bill other than a money bill in the National Assembly.

(2) The procedure to be followed with the consideration of a private member's bill is determined by the Assembly in its rules and orders (See 57 (1)).

2. TERMINOLOGY

(1) A distinction must be drawn between a private member's legislative proposal, and a private member's bill.

(2) A "private member's legislative proposal", as the term implies, is merely a proposed bill. The term is specifically applicable to Assembly processes prior to formal introduction of a bill initiated by a member. Hence, the Assembly Rules and Joint Rules applicable to bills do not apply to a legislative proposal.

(3) A legislative proposal becomes a "bill" only at the point where it is formally introduced in the Assembly as a bill. From that point on, the rules applicable to bills apply.

(4) These notes concern the processing of a legislative proposal before it achieves the status of a bill.

3. RULES

Two sets of Assembly rules specifically relate to legislative proposals as initiated by members:

(1) Rules 234 - 7 (attached) cover the initiation and processing of a legislative proposal before its introduction as a bill.

(2) Rules 209 - 13 (attached) describe the standing committee that is specifically tasked with considering legislative proposals.

4. PROCESSING BY COMMITTEE

Issues covered in these rules that are directly relevant to the functions of the Committee are the following:

(1) The Committee must (emphasis added) consider and make recommendations to the Assembly

on "all legislative proposals made by Assembly members intending to introduce bills" (Rule 211).

(2) The Committee must thereafter recommend to the House either that permission be given to the member to proceed with the proposed legislation, or that permission be refused.

(3) The Committee may in addition, if it recommends that permission be given –

• express itself on the desirability of the principle,

• recommend that the Assembly approve the proposal in principle, or

• recommend that permission be given subject to conditions.

(These ate important options available to the Committee. Their purpose and application should be explored).

(4) The Committee is required to table with its report-

• the member's memorandum or proposal

• the Committee's recommendation

• any views of the relevant portfolio committee on financial or other implications.

(5) The Assembly thereafter decides on whether to give permission for the proposal to be proceeded with, whether to refer it back to the Committee or any other committee for a further report, or whether to refuse permission.

(6) Note that the Committee is not given the powers that portfolio committees have in respect of bills, namely to approve, reject, amend or redraft.

5. IMPLICATIONS OF THE RULES ON COMMITTEE'S PROCESSING

(1) A legislative proposal can be in the form of a memorandum - it need to be in bill form.

(2) The Committee is therefore not required to consider the proposal as if it is a bill and is not expected to follow the processes followed by portfolio committees when considering a bill. These processes will follow when a bill is formally introduced at a later stage after the member has been given permission by the Assembly to proceed.

(3) The Committee is therefore required only to carry out an initial screening of the proposal.

(4) The purpose of the initial screening, it is suggested, is essentially to avoid time and money being spent by the Assembly on an unrealistic proposal.

(5) Criteria need to be established by which to assess a proposal. These should be based on precedents and practice as they develop.

[Query: Have records been kept of the grounds for committee recommendations on legislative proposals since 1994? If possible, these should be researched.]

(6) Guidance on criteria can be sought from other parliaments. In this regard, the Committee tabled a useful report in 1998 (ATC of Friday, 17 July 1998, pp 471-9).

(7) The criteria applied by the House of Commons in Canada, for example, are informative. They are:

• whether the item is trivial or insignificant;

• whether the item appears to discriminate in favour of or against a certain area or region in the country;

• whether the bill is defective in its drafting (this is not applicable in SA as a proposal may be presented in the form of a memorandum)

• the number of times a topic has appeared in the House, given its context.

(8) Other criteria could be added in SA: For example, whether the proposal is consonant with the founding provisions of the Constitution; and whether it infringes on the bill of rights. (However, legislative proposals may include proposed constitutional amendments).

(9) A further intended criterion is clearly whether the financial implications of the proposal are beyond the country's means.

(10) The Committee is required to consider the appropriate portfolio committee. The purpose of this could be to obtain an informed view of the feasibility of the proposal in the context of the relevant Department's statutes, policies and plans.

(Note that according to precedent the Committee should not be unreasonably delayed in its consideration of a proposal if no response is forthcoming from the relevant portfolio committee).

(11) While the Committee may express itself on the desirability of the principle of a proposal, that is not its primary responsibility. Hence, the issue of desirability in itself would not provide grounds for recommending rejection. That would again, be a matter for consideration by the relevant portfolio committee after the bill is formally introduced.

(12) It would therefore follow that it is not anticipated that the Committee would hold public hearings on the legislative proposal. It could well be argued that that would be outside of the Committee's mandate.

(13) It is therefore suggested that if the proposal satisfies the broad criteria that the Committee applies, the Committee should recommend that the proposal be proceeded with - regardless of whether the Committee supports the principle of the proposal (although it may in its report express itself on that).

(14) A detailed consideration of the principle and content of the bill will follow in the relevant portfolio committee once the bill has been introduced, including public hearings, etc. This indeed would be the stage at which the opportunity is provided for extensive debate on the principle.

(15) At the bill stage, the relevant portfolio committee would also be expected to consult the relevant Department both on the principle and on the detail of the bill.

(16) The portfolio committee would be fully entitled, of course, after due consideration to recommend to the House rejection of the bill. This could be followed by a Second Reading debate in the

House and a final decision, but only if the bill is programmed for House consideration. If it is not so programmed, it would remain on the Order Paper and lapse at the end of the year.

6. OPPORTUNITIES FOR DEBATE ON MEMBER'S LEGISLATIVE PROPOSAL

As outlined above, various opportunities arise for formal discussion or debate on a member's legislative proposal:

(1) Debate in the House on the Committee's report if it recommends that permission to proceed with the proposal be refused.

(2) Debate on the First Reading or introduction is possible (New procedure being developed). (3) Extensive consideration and debate in the portfolio committee (including public hearings) (4) Debate on Second Reading, if programmed.

[EXTRACT FROM NA RULE - ANNEX 1]

Bills initiated by Assembly members in individual capacity

Submission of legislative proposals to Speaker

234 (1) An Assembly member intending to introduce a bill in the Assembly in an individual capacity (other than as a Cabinet member or Deputy Minister) must, for the purpose of obtaining the Assembly's permission in terms of Rule 230 (1), submit to the Speaker a memorandum which-

(a) sets out particulars of the proposed legislation;

(b) explains the objects of the proposed legislation; and

(c) states whether the proposed legislation will have financial implications for the State and, if so, whether those implications may be a determining factor when the proposed legislation is considered.

(2) The Speaker must table the member's memorandum in the Assembly.

Referral of proposals to committee

235 (1) The Speaker must refer the member's memorandum to the Committee on Private Members' Legislative Proposals and Special Petitions.

(2) The Committee must consult the portfolio committee within whose portfolio the proposal falls.

(3) If the Committee after such consultation is of the view that the member's proposal warrants further investigation, but that it may have financial implications for the State that may be significant enough to affect its desirability, the Committee must request the Speaker to refer the member's memorandum to the appropriate portfolio committee for a report on the financial implications of the proposal.

(4) After considering the member's memorandum and the portfolio committee's report, if there is such a report, the Committee must recommend that permission either be

(a) given to the member to proceed with the proposed legislation; or

(b) refused.

(5) If the Committee recommends that the proposed legislation be proceeded with, it may

(a) express itself on the desirability of the principle of the proposal;

(b) recommend that the Assembly approve the member's proposal in principle; or

(c) recommend that permission be given subject to conditions.

Consideration of legislative proposal by Assembly

236. (1) The Committee on Private Members' Legislative Proposals and Special Petitions must table in the Assembly the member's memorandum and the Committee's recommendation, including any views of a portfolio committee on the financial or other implications of the proposal.

(2) The Speaker must place the Committee's report together with the member's proposal on the Order Paper for a decision.

(3) The Assembly may -

(a) give permission that the proposal be proceeded with;

(b) refer the proposal back to the Committee or the portfolio committee concerned for a further report; or

(c) refuse permission.

(4) If the Assembly gives permission that the proposal be proceeded with, it may, if it so chooses -

(a) express itself on the desirability of the proposal; or

(b) subject its permission to conditions.

Preparation of draft bill

237. (1) If the Assembly gives permission that the proposal be proceeded with, the member concerned must -

(a) prepare a draft bill, and a memorandum setting out the objects of the bill, in a form and style that complies with any prescribed requirements;

(b) consult the JTM for advice on the classification of the bill; and

(c) comply with Rule 241 or, if it is a proposed constitutional amendment, with Rule 258.

(2) The Secretary must reimburse a member for any reasonable expenses incurred by the member in giving effect to Subrule (1), provided that those expenses were approved by the Speaker before they were incurred.

7 [EXTRACT FROM NA RULES - ANNEX 2]

Part 11: Committee on Private Members' Legislative Proposals and Special Petitions

Establishment

209. There is a Committee on Private Members' Legislative Proposals and Special Petitions.

Composition

210. (1) The Committee on Private Members' Legislative Proposals and Special Petitions consists of the number of Assembly members that the Speaker may determine with the concurrence of the Rules Committee.

(2) The members of the Committee are appointed by the Speaker after consulting -

(a) the Chief Whip, when a member of the majority party is appointed; or (b) the most senior whip of another party, when a member of that particular party is appointed.

Functions and powers

211. The Committee on Private Members' Legislative Proposals and Special Petitions must consider and make recommendations to the Assembly on -

(a) all legislative proposals made by Assembly members intending to introduce bills and referred to the Committee in terms of Part 2 of Chapter 13 of these Rules; and

(b) all special petitions referred to the Committee by the Speaker in terms of Rule 315.

Decisions

212 A question before the Committee on Private Members' Legislative Proposals and Special Petitions is decided when a quorum in terms of Rule 133 is present and there is agreement among the majority of the members present.

Subcommittees

213. The Committee on Private Members' Legislative Proposals and Special Petitions may appoint a subcommittee from amongst its members to assist the Committee