RULES GOVERNING PRIVATE MEMBERS’ LEGISLATIVE PROPOSALS Presentation by NA Table to Committee on Private Members’ Legislative Proposals and Special Petitions

INTRODUCTION ► There’s a need to distinguish between a private member’s bill and a private member’s legislative proposal. ► A “private member’s legislative proposal” is, as the term implies, only a proposed bill. ► As the processes prior to formal introduction differ, the Assembly Rules and Joint Rules applicable to bills do not apply to a legislative proposal. ► 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. ► Today’s discussion concerns the processing of a legislative proposal before it achieves the status of a bill.

APPLICABLE RULES ► Section 73(2) of the Constitution makes provision for a committee or member to introduce any bill other than a money bill in the National Assembly. ► This provision is repeated in Rule 230 which states that any committee or member may introduce a bill in the Assembly, provided that the committee or member initiating the bill is acting with the permission of the Assembly. ► Rules 234 to 237 then cover the initiation and processing of a legislative proposal before its introduction as a bill. ► Rules 209 to 213 describe the committee that is specifically tasked with considering legislative proposals.

FORMAT AND SUBMISSION ► A member intending to introduce a bill must first seek the permission of the House to do so. (Rule 230(1)) ► To achieve this, the member must submit to the Speaker a memorandum which –  sets out the particulars of the proposed legislation;  explains the objects of the proposed legislation; and  states whether it will have financial implications for the state and, if so, whether that may be a determining factor when the proposal is considered. ► The legislative proposal therefore does not need to be in bill form. It can be in the form of a memorandum, for example - :

► When the Speaker receives a request from a member seeking the permission of the House to introduce a bill, she will satisfy herself that the legislative proposal (whether in memorandum or bill form) complies with Rule 234(1), viz that –  it sets out the particulars of the proposed legislation;  it explains the objects of the proposed legislation; and  it states whether there will be financial implications for the state. ► The Speaker does not express herself on the desirability of the proposed bill, nor does she or her office conduct a legal scan to determine whether the proposed legislation already exists in the Statute Book. ROLE OF THE SPEAKER

► In terms of Rule 235(3), if after consultation with the relevant portfolio committee, the Committee is of the opinion that the legislative proposal being considered 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 memorandum to the appropriate portfolio committee for a report on the financial implications of the proposal. ► Following this formal route will facilitate the work of the Committee, as a request from the Speaker will compel the relevant portfolio committee to respond promptly and allow the Committee to report timeously. ► Once the Committee has tabled its report and the member’s memorandum, the Speaker must place them on the Order Paper for a decision. In terms of the rules, therefore, the House must express itself on the matter.

TABLING AND REFERRAL ► In terms of the rules, once the Speaker has satisfied herself that the legislative proposal is in order, she then must -  table the memorandum in the Assembly; and  refer the memorandum to the Committee on Private Members’ Legislative Proposals and Special Petitions. ► The notice of the tabling and referral of the memorandum is published in the Announcements, Tabling and Committee Reports (ATC). ► Once it has been tabled and referred, the memorandum and any accompanying documents are sent to the Committee on Members’ Legislative Proposals and Special Petitions for processing.

PROCESSING BY COMMITTEE ► The Committee must consider and make recommendations on all legislative proposals made by Assembly members intending to introduce bills. (Rule 211) ► The Committee must then recommend to the House that -  permission be given to the member to proceed with the proposed legislation; or  permission be refused. (Rule 235(4)) ► If the Committee recommends that permission be given to proceed, it may –  express itself on the desirability of the principle;  recommend that the proposal be approved in principle; or  recommend that permission be given subject to conditions. (Rule 235(5))

IMPLICATIONS OF RULES ON PROCESSING ► As a legislative proposal can be in the form of a memorandum, the Committee is not required to consider the proposal in the same manner that a portfolio committee would consider a bill. Such detailed consideration will follow when the bill is formally introduced after the member has been given permission by the Assembly to proceed. ► The Committee is required to carry out only an initial screening of the proposal, essentially to avoid time and money being spent by the Assembly on an unrealistic proposal. ► Criteria therefore need to be established by which to assess a proposal. These should be based on precedents and practice as they develop.

► The Committee is required to consult the relevant portfolio committee. (Rule 235(2)) ► 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. (This consultation does not mean that the Committee should be unreasonably delayed in its consideration of a proposal if no response is forthcoming from the portfolio committee.) ► Though the Committee may express itself on the desirability of the principle of a proposal, that is not its primary responsibility. The issue of desirability would therefore, in itself, not provide grounds for recommending rejection. That would be a matter for consideration by the relevant portfolio committee after the bill is formally introduced. ► It would therefore also follow that the Committee would not hold public hearings on the legislative proposal. Furthermore, the Committee is not given the powers that portfolio committees have in respect of bills, namely to approve, reject, amend or redraft.

COMMITTEE REPORT AND CONSIDERATION BY HOUSE ► Once the Committee has finalised its deliberations, the Committee must table the member’s memorandum and its recommendation, including any views of the relevant portfolio committee on the financial or other implications of the proposal. (Rule 236(1)) ► After the Speaker has placed the report on the Order Paper of the House for consideration, the House may –  give permission for the proposal to be proceeded with;  refer the proposal back to the Committee or the portfolio committee concerned for a further report; or  refuse permission. (Rule 236(3))

► If the Assembly gives permission for the proposal to be proceeded with, it may, if it so chooses –  express itself on the desirability of the proposal; or  subject its permission to conditions. (Rule 236(4)) CONCLUSION It follows from the above that the Committee on Private Members’ Legislative Proposals and Special Petitions is, in the main, a technically oriented committee that facilitates the work of the House by speedily and timeously recommending to the House, in accordance with specific criteria and rules, whether or not to grant permission to a member to introduce a bill.