PRESENTATION TO COMMITTEE ON THE SCRUTINY OF DELEGATED LEGISLATION

1. PRESENTATION TO COMMITTEE ON THE SCRUTINY OF DELEGATED LEGISLATION N P KESWA 19 May 2011

2. BACKGROUND When the JRC decided to establish a scrutiny mechanism, Secretary to Parliament set in motion a planning process to facilitate all the requirements of a new committee such as development and adoption of rules, resourcing and investigating best practice. This presentation seeks to indicate for the committee the work done to find out where best practice can be found which it could explore for orientation on the functioning of the committee and effective procedures

3. APPROACH ON BEST PRACTICE • Desktop research on identified parliaments considered to have effective scrutiny process; • Interactions with parliamentary officials during multilateral meetings on their scrutiny mechanisms

4. DESKTOP RESEARCH It is important to note that this research on best practice understand that the parliamentary system practiced by various parliaments differ as their constitutional mandates differ and that an evaluation of their practices should factor these major differences from our own: • Australian Parliament The Scrutiny of Bills Committee assesses legislative proposals against a set of accountability standards that focus on the effect of proposed legislation on individual rights, liberties and obligations, and on parliamentary propriety (document attached). The document also outlines the procedure which every delegated legislation follows until it is disallowed by the House, withdrawn or amended by the minister concerned as the case may be. • Canadian Parliament Standing Joint (House of Representatives and Senate) Committee for the Scrutiny of Regulations’ mandate is defined by the Statutory Instruments Act, the Statute Revision Act and the Standing Orders. Pursuant to the Statutory Instruments Act, the Committee can scrutinize any statutory instrument made on or after January 1, 1972. 

5. DESKTOP RESEARCH Canadian cont. • Canadian Parliament Their system seems to differ from the Australian one as they concern themselves only with the legality and procedural aspects of the legislation and not whether the instruments and the policies on which they are based have merit or not. The attached document gives a detailed account of the developments of the system from the days when it only scrutinised the regulations/instruments to when the regulations could be disallowed and the executive barred from re-doing the regulations within a period of six months.

6. DESKTOP RESEARCH • Indian Parliament The Indian Parliament is made up of the House of the People (LokSabha) and the Council of States (RajyaSabha). Both Houses have a committee on Subordinate Legislation to scrutinize and ensure that powers to make rules, regulations, bye-laws, schemes or other statutory instruments have been properly exercised within such delegation. Although the House can scrutinize these instruments from whatever source, their system requires that these rules, regulations etc be “ laid before the House”, in our language “be tabled”. Both committees report to their respective Houses whether the powers to make rules, regulations etc delegated by Parliament are exercised properly. They can recommend amendments and processed according to their legislative procedures. Document attached. It appears that the parliamentary system in Indian has similarities with our own and as such it is recommended that more research work be done including a study tour to learn from them.

7. DESKTOP RESEARCH UK cont. UK Parliament The Delegated Powers Scrutiny Committee (DPSC) of the House of Lords (established in 1992) keeps under constant review the extent to which legislative powers are delegated by Parliament to government ministers, and examines all Bills with delegating powers which allow regulations to be made before they begin their passage through the House. The House of Commons has no equivalent committee. UK defines the different types of delegated legislation and distinguishes the statutory instruments such as Rules or Codes of Practice as a special kind of delegated/secondary legislation which forms the bulk of the delegated legislation. A special committee called the Lords Merits of Statutory Instruments/Joint Committee on Statutory Instruments (SIC) scrutinises all statutory instruments. This is a latest development from 2003. The committee examines the policy merits of any statutory instrument or regulations laid before the House of Lords that are subject to parliamentary procedure. It appears that DPSC deals with legislation before it is passed and SIC after the regulations or Rules have been drawn by the delegated department.

8. DESKTOP RESEARCH cont. It was considered worth investigating how African Parliaments especially in Southern Africa dealt with delegated legislation. • Zambian Parliament The Committee on Delegated Legislation scrutinises and reports to the House, through the Speaker, whether the powers to make orders, regulations, rules, sub-rules and by-laws delegated by Parliament are being properly exercised by any person or authority within such delegation. Not much is provided in the website on how it functions and what the executive does to those instruments which did not find favour with Parliament. • Ugandan Parliament Although their system provides for subordinate legislation, they have no mechanism to scrutinize such legislation

9. BILATERAL INTERACTION • Australian Parliament In discussion with the officials of this and other commonwealth Parliaments during the IPU Conference, a view was gained that this Parliament is thought to have one of the best and well-established mechanisms for scrutiny of delegated legislation. On the basis of this we found a document on their website which sets out how the scrutiny is conducted (copy attached) • Canadian Parliament It appeared that this parliament also has an established scrutiny process but the Australian Parliament seems to have experience of many years of scrutiny and is still viewed by other parliamentary officials as the best practice to learn from. • UK Parliament They indicated that their scrutiny is mainly carried by the House of Lords but they also view the Australian mechanism as the best to learn from.

10. BILATERAL INTERACTION • Zambian Parliament In the Southern Africa region the Zambia Parliament is considered to have the best effective mechanism for scrutiny (refer to their website doc) • Ugandan Parliament They indicated that they are in the process of establishing a scrutiny mechanism. They indicated that they have been to Kenya but were pointed to the Zambian Parliament as having a long standing tradition of scrutinising delegated legislation • Kenyan Parliament It appears they also point to Zambian Parliament as the best practice to learn from

11. RECOMMENDATION It is recommended that the Committee before it begins to implement its mandate, it is afforded an opportunity to undertake a study tour to the following Parliaments which are said to either have an effective process of scrutiny of delegated legislation or have a parliamentary system like ours and do scrutinize delegated legislation as we seek to do: • Australia • Zambia; and • India

12. THANK YOU