Delegated legislation: Best practices and legal requirements
This meeting was primarily intended to provide a background and orientation for Committee Members, who would then need to decide on their scope of work and set a programme. Advocate Mike Masutha, who had formerly co-chaired the Joint Subcommittee on Scrutiny of Delegated Legislation, which had come up with some recommendations in 2009, explained the importance of delegated legislation and drew the distinction between powers that were assigned to another person, and powers that were delegated, where the person delegating still not losing those powers. He stressed that all legislation, including delegated legislation, had to be accessible to the public. The powers around delegated legislation were derived from sections 101 and 140 of the Constitution, and he noted that the Constitution gave Parliament a discretion as to whether or not to devise a mechanism that would specify the manner and extent to which proclamations, regulations and other instruments of subordinate legislation should be tabled and / or approved. He explained the difference between tabling and approval. The Joint Subcommittee had recommended that legislation should be passed to set out the norms and standards for implementation of the constitutional mandate around delegated legislation.
A Parliamentary Legal Advisors then briefed the Committee further on the Constitutional and legal imperatives, and drew attention to section 55(2) of the Constitution, which stated that the NA should provide for mechanisms to ensure that the executive organs of state were accountable to it, and maintain oversight over the operations of the national executive authority. It was noted that the Interpretation Act required the executive to submit a list of all the notices published in the Government Gazette, but noted also that there was no interrogation of the content. Section 101(4) of the Constitution was again examined, and the distinctions between tabling and approval, and time periods, were explained. It was stressed that conflict or poor wording of regulations could create a lacuna in the operation of the law, and the problem of the executive failing to make regulations that would empower officials to do work required of them under an Act was also raised. It was noted that different Acts currently had different wording in relation to regulations. The Committee would need to bear this in mind. Questions about retrospectivity were explained, as well as the purpose of transitional provisions. It was also noted that the Committee may have to consider the possibility of conflict between legislation at national and provincial level, or conflicts in two sets of regulations dealing with similar issues.
Another Parliamentary official outlined the desktop and questionnaire research that had been done into comparative situations, noting that Australia was one of the best examples for scrutiny of delegated legislation, but India’s Parliamentary set-up was similar to that in South Africa, and it required scrutiny by Parliament of every piece of secondary legislation. Although it had been suggested that the Zambian model might be considered, there were difficulties in ascertaining what happened to regulations of which Parliament did not approve.
Members asked questions about the retrospective effect of legislation on implementation of regulations, called for clarity on the Constitutional provisions, and asked what the powers of the respective committees might be if the executive was required to make regulations and did not, as well as raising the possibility of conflict between this and the portfolio committees in terms of executive oversight.
Chairperson’s opening Remarks
Chairperson V Smith reminded Members that at the last meeting it was agreed to hold a workshop to detail the functions and responsibilities of this Committee, and to deal with rules and best practices around delegated legislation. This would help Members to develop a programme, which would, in turn, inform the workload and any further training needs. The Committee section would need to draw up a draft programme, taking into consideration the responsibilities of Members on other Committees.
Background Briefing: Delegated legislation and formation of Joint Committee
Advocate Mike Masutha, formerly Co-chairperson of the Parliamentary Joint Sub-Committee on Delegated Legislation, noted that Parliamentary scrutiny of delegated legislation formed a critical element in any modern system of Constitutional democracy. It had the potential to enhance constitutional values and principles, to improve the quality of Acts of Parliament and to save legal costs and court time by anticipating challenges to the constitutional validity of such legislation. He drew a distinction between assigning power and delegating power, noting that the latter concept did not mean that the person delegating the power would lose the power. He also noted that nothing prevented Parliament from revoking a delegation of law-making power to another functionary. Equally, nothing prevented Parliament, through a subsequent enactment, from legislating on the same matter to amend or replace a rule or regulation made in terms of such delegated power.
Adv Masutha noted that the Constitution had two requirements in relation to delegated power. Firstly, delegated legislation should be made accessible to the public, and that was a mandatory requirement. Secondly, Parliament was given the discretion, under the Constitution, whether or not it wished to devise a mechanism to specify the manner and extent to which proclamations, regulations and other instruments of subordinate legislation should be tabled and approved, after making a decision as to whether this was feasible or desirable. He added that there were rules that governed the functions and mandate of the Committee, and these included the criteria to be used by that Committee in executing its mandate of scrutinising delegated legislation.
Adv Masutha said that this process had commenced in 1997, based upon section 101 of the Constitution, in relation to the National Assembly (NA), and section 140 of the Constitution in relation to the National Council of Provinces (NCOP). Section 101 set out subsections relating to national delegated legislation, such as proclamations, regulations and other instruments of subordinate legislation that should be accessible to the public. The national legislation could specify the manner and the extent to which instruments mentioned in subsection 101(3) should be tabled and approved by Parliament, and Parliament must then decide, in line with what he had already outlined, whether it was feasible or desirable that subordinate instruments be scrutinised, once Parliament had delegated its law‑making authority to another body.
Adv Masutha stated that the Constitution distinguished between tabling and approval. It could, for example, be specified that all delegated instruments had to be tabled, but not that all must be approved. If Parliament wished delegated legislation to be approved, a further decision must be taken on whether this meant the same kind of approval for all delegated instruments.
The Parliamentary Joint Sub-Committee on Delegated Legislation had agreed that Parliament had a discretion as to the extent and manner in which delegated legislation could be tabled and approved. It had recommended that legislation should be passed to set out the norms and standards by which delegated legislation would be tabled or approved. This was intended to reinforce the provisions of section 17 of the Interpretation Act, at least in regard to tabling. He suggested that this proposed legislation could, for instance, require that Parliamentary committees must specify, when drafting a bill, which matters were to be dealt with in a delegated instrument. They should also specify whether the instrument was regarded as a legislative instrument or an administrative instrument. A legislative instrument was an extension of the law, for which both tabling and approval would be required, unless exempted by the relevant enabling statute, with the approval of the Scrutiny Committee. An administrative instrument had no binding legal status, and for this no tabling and approval would be necessary, unless specifically required in the enabling statute. Parliamentary committee should also debate the timeframes within which delegated legislative instruments were to be tabled and approved or disapproved, and procedures to be followed in that regard.
Matters pertaining to the internal arrangements of Parliament, such as the nature of the scrutiny mechanism, its composition, powers and functions, could be provided for in the Rules of Parliament.
Adv Masutha emphasised that before it was possible to commence a scrutiny of delegated legislation, it was necessary to look at original legislation, from which the question of delegation arose. In that original legislation (the Bill), the legislators decided what aspects should not be specifically legislated for, but should be deferred for the executive to determine by way of regulations. The drafting and interpretation of regulation-making powers in original legislation were, therefore, at the heart of any scrutiny of and control over delegated legislation.
Adv Masutha concluded by quoting a case in which the power of Parliament to delegate its legislative authority had been confirmed by the Constitutional Court (CC): namely Executive Council of the Western Cape Legislature and Others v President of the Republic of South Africa and Others. The Court found that there was nothing in the 1993 Constitution that prohibited Parliament from delegating subordinate regulatory authority to other bodies, and that the power to do so was necessary for effective law-making. The same pertained under the 1996 Constitution, as emphasised by the reference, in the Constitution’s section 101(3) to instruments of subordinate legislation (under the heading “Executive decisions”). The executive derived the power to make such legislation from an Act of Parliament. However, the Constitutional Court found that there was a difference between delegating an authority to make subordinate legislation within the framework of a statute, and assigning plenary legislative power to another body, including the power to amend or repeal the Act under which the assignment was made.
Ms S Kalyan (DA) asked how far back this Joint Committee would need to go, in relation to the 2009 recommendations, and how referral to this Committee operated.
Adv Masutha responded that there was nothing retrospective in this process, because this Committee would be dealing with new legislation that would not affect legislative powers already delegated. There had been no Act dealing with delegation in the past. The only matters that might be affected were rules or bills pending at the time the new envisaged legislation might be passed. He noted that the idea was that the executive would have to develop a system to index all delegated legislation under its administration that was currently in place, in order to comply with the Constitutional requirements of accessibility. It was far more difficult to find regulations than it was to find legislation. Guidelines and booklets could also ensure that the public had access to legislation, to bring government closer to the people.
Chairperson Smith thanked Mr Masutha for his analysis. He agreed with him that the Committee should first develop a uniform standard, and this would be one of the first issues to be discussed. He also agreed that there was nothing retrospective, but this would look forward. The indexing of regulations would be something with which the Committee Secretary could assist.
Legal and Constitutional Imperatives of delegated legislation: Parliamentary Legal Advisor’s briefing
Advocate Frank Jenkins, Senior Parliamentary Legal Adviser, noted that the Constitutional Court had considered whether policy formed part of the law, and ruled that it did not. However, delegated legislation was another issue, because Parliament was delegating its legislative function to the executive. Chapter 1 of the Constitution noted that one of the founding values was supremacy of the Constitution and the rule of law, and legislation would come into force when written down and enacted.
Specific imperatives around lawmaking were set out for both the NA and NCOP. Section 55(2) of the Constitution stated that the NA should provide for mechanisms to ensure that the executive organs of state were accountable to it, and should maintain oversight over the exercise of the national executive authority, including the implementation of legislation. That, of course would refer to legislation that Parliament had passed, and that was put into effect by the President having attested to it. That legislation could say that the executive should make certain regulations, and this could be worded as pre-emptive or discretionary. In many cases, an Act could not come into operation unless the regulations were promulgated. That situation must be included in the Committee’s discussion, to decide how it could ensure that regulations were made, and how this should be done. At the moment, each separate Act provided for the necessary regulations.
Adv. Jenkins noted that the Interpretation Act required the executive to submit a list of all the notices published in the Government Gazette. At the moment, this would merely be a list of how the delegated legislative function had been used, and content was not evaluated.
Adv Jenkins highlighted that the Constitution required that legislation should be broadly accessible to the public, and he was of the view that if it was not easily publicly accessible, it should not be operative. This same principle should apply to delegated legislation. There was an unanswered question as to whether delegated legislation reflected the wishes of the people and provinces. The Interpretation Act required that a list of delegated legislation be drawn, and everyone could access that list to check what regulations had been made, but effectively those regulation were already in operation. This was an oversight function, specifically for the NA.
Section 92 of the Constitution noted that Members of Cabinet were accountable collectively and individually to Parliament for the exercise of their powers and performance of their functions. They must report on these to Parliament.
Adv Jenkins reiterated that section 101(4) of the Constitution stated that the national legislation may specify the manner in which, and the extent to which, regulations must be tabled in or approved by Parliament. Questions that had been asked included whether tabling should always be requested, and whether there should be a provision in the principle Act as to whether regulations would come into effect 30 days after approval, or, if approval was not required, 30 days after tabling. It was important for the Committee to note the distinctions. There had previously been a problem, in relation to the legislation controlling pharmaceuticals, where one Act inadvertently repealed others through lack of clarity, resulting in a long time span with serious repercussions for approval of scheduled drugs in South Africa.
Specific Acts authorised a Member of Cabinet, in consultation with a Board, to make certain regulations and table them in Parliament. He cited provisions in the Immigration Act that specified that the Minister must act “in consultation with the Board” before regulations could come into effect. The Promotion of Administrative Justice Act and Promotion of Access to Information Act also specified that certain regulations should be tabled in Parliament.
These differing scenarios would need to be considered by the Committee, in relation to the enabling provisions in the principal Acts. He reiterated that it was necessary to make delegated legislation that the public could understand and that lawyers could access. He debated whether the current method of publishing delegated legislation in the Government Gazette, that was not “freely” available, was correct.
Adv Jenkins also noted that questions about retrospectivity had been raised, as to whether it was possible to re-examine regulations already passed, or consider regulations, whether approved or not, in terms of legislation. The short answer was that this was not possible, unless the enabling provision in the principal Act had been changed.
Adv Jenkins had also been asked to consider whether a Minister could make a regulation that operated retrospectively. The answer, again, was in the negative, unless the principal Act specifically allowed a Minister to make retrospective regulations. Section 35 of the Constitution stated that no criminal provisions could have retrospective application. However, he pointed out that many tax provisions applied retrospectively, although not through retrospective regulation.
Adv Jenkins also noted that most Bills contained clauses dealing with transitional matters. These covered the situation where, for instance, one Act might be repealed, but the regulations made under that Act would remain in force until replaced by new regulations. That was illustrated by the Public Finance Management Act (PFMA), which stated that until new supply chain management regulations were made in terms of that Act, all supply chain management policies would continue in force as if they were regulations.
Adv Jenkins concluded that the Committee should think carefully about whether it wished to have regulations tabled alone, or tabled and approved. Section 146 of the Constitution dealt with preventing and managing conflict between legislation passed at national and provincial levels. He was not currently aware of any problems, but the possibility of conflict did exist. This section also noted that a law made in terms of an Act of Parliament, or a provincial Act would prevail only if it had been approved by the NCOP.
Mr A Gaum (ANC) asked for clarity on the enabling provisions in the Constitution, noting that this Committee had not previously existed, and wondered how any subsequent legislation would have an effect on existing regulations.
Adv. Jenkins responded that there was nothing in the Constitution to state the constitutional mandate or imperative of the Committee, merely that there should be an oversight mechanism to look at the implementation of legislation, or implementing legislation to do with a certain function, such as the making of regulations. The enabling provisions as to whether regulations need merely to be tabled, or also approved, were the key to the issue.
Mr D Bloem (COPE) asked what would happen in a situation where an Act had been passed some time ago, but regulations, although provided for, had not been drafted.
Adv Jenkins responded that this had to do with questions about rationality. For instance, the Immigration Act provided that the Minister and Director General had certain powers, but these were, in practice, delegated down to Immigration Officials, who had the power to allow or disallow someone from entering the country, through the provision of visas. The conditions around the visas were supposed to be prescribed by the Minister. Prior to the Minister issuing those regulations, the officials therefore had no tools on which to base their decisions. The Court noted that it was irrational if an Act was brought into operation before those responsible for implementing the Act were given the tools to do their work.
Chairperson Smith wondered whether Parliament could be said to have defaulted in its responsibilities if the Act provided that the Minister must make regulations, and failed to do so.
Ms Kalyan asked what would happen if two departments had made conflicting regulations around a similar topic.
Adv Jenkins said that this raised an interesting question about conflict of domestic laws in South Africa. It would be possible for national departments to produce statements on matters that overlapped with responsibilities of provincial departments, although there was not a great deal of this happening because the ANC had control in most provinces. If the overlapping regulations could both be enforced without any conflict, there would be no problem, but if they conflicted then there would be a problem. It would be important for this Committee to look at those conflicting regulations and try to harmonise them, failing which it would be necessary to consider whether both could apply, or which should prevail.
Chairperson Smith asked what happened if a Portfolio Committee, in the bill that it prepared, asked that the Minister must make regulations, to come before the Portfolio Committee with a reasonable time, and this Committee might determine something along similar lines. He wondered if there would not be a duplication of work, and wondered to which Committee the Minister must report, particularly if the two committees did not agree.
Adv Jenkins responded that there was a potential problem of overlap with portfolio committees on certain issues. There was a need to develop a system that would avoid conflicts. If a Committee had an obligation, the Joint Rules stated that committees were extensions of the Houses of Parliament, and had to carry the mandate of the House in regard to legislation.
Mr Bloem noted that separate regulations should be formulated to cover issues mentioned in an Act, but there might be instances where a department might report, several years down the line, that it was still busy with the regulations.
Adv Jenkins responded that if a Minister had been asked to make regulations, and failed to do so within a reasonable time, it was certainly up to the Committee to ask why those regulations were still not made. There could be valid reasons why regulations might take so long. He noted that the Financial Management of Parliament Act was passed in 2009, but the drafting of the regulations had not yet been completed, due to the political process involved in that drafting. A Committee was entitled to interrogate the reasons given for the delay, and not simply accept the explanation. This depended on the circumstances. In addition, it was possible to insert a provision in the enabling legislation, to require that regulations must be made within a certain time frame, failing which the delegation would fall away.
Ms B Mncube (ANC, Gauteng) asked how the Committee should proceed.
Ms Marina Nel, Senior Procedural Adviser, National Assembly Table, Parliament, responded that the Subcommittee that was co-chaired by Adv Masutha was a different committee with a specific purpose. It had looked at the mechanisms to create a Committee to attend to scrutiny of delegated legislation. This Joint Committee was an interim structure, and recommendations were being made to develop the Committee.
Report on Global Best Practices for scrutiny of delegated legislation
Ms Nomonde Keswa, Manager: Legislation and Oversight Division, Parliament, noted that the research into the best global practices for scrutiny of delegated legislation had started with a desktop exercise and communication with other Parliaments’ officials. Not every Parliament had been researched as the team had concentrated on a few referred to by Professor Khoda, who was working with the subcommittee formerly co-chaired by Adv Masutha. Some of the Parliaments to whom the researchers were referred had not much to offer in writing, but it was recognised that a process of interaction might bring to light more information. She noted that the research had included the Parliament of Australia and the other Commonwealth Parliaments. The United Kingdom (UK) was limited to looking into legal issues around delegated legislation and did not check policy nor the merits of the legislation, but this country also agreed that Australia was a good example of best practice. In the Canadian system there had been some political intercession, which impacted on the work, but there was a system of scrutinising delegated legislation.
The Indian Parliament required everything, including by-laws, rules, and various statutory instruments, to be tabled before the House. This might be a useful comparative system, as the Indian Parliament also had two Houses, and she would provide further details on its procedures.
In relation to African countries Ms Keswa stated that Professor Khoda had suggested that the Zambian system could be an example, but she was not sure that this system was entirely effectively, because no logical conclusion was pointed out as to what happened to a regulation that did not find favour in Parliament.
Ms Keswa concluded that an indication of the research done to date was presented to assist this Committee, which was very different to other committees, and might wish to start by comparing other systems to see whether there were established practices and precedents that could guide the work of this Committee.
The Chairperson noted that Ms Keswa’s documents had been provided to Members and urged them to peruse it to gain more information.
Mr Bloem said Ms Keswa was correct in saying that Members should first understand the processes, before engaging on its work.
Chairperson Smith reminded the Committee Members that this session of the meeting was intended to convey information. There were issues to discuss around the NA and NCOP mandates. A list of issues identified in these discussions would be made available to the Committee.
The meeting was adjourned.