PARLIAMENTARY RUBBER STAMPING (is public consultation a charade?)

To be frank, the parliamentary process does tend to be a rubber-stamping exercise – driven by whichever national government department developed the Bill concerned. And this applies to controversial pieces of proposed new legislation in particular.

Dominated by African National Congress (ANC) MPs in ministerial positions, Cabinet is unlikely to approve any Bill for tabling in Parliament if its contents fly in the face of policy positions underpinned by a long-standing commitment to transformation. So, you can bet your bottom dollar that – when it lands on the desk of parliamentary committee chair for processing by their committee – every single piece of proposed new legislation and every single Bill amending Acts in force well before 1994 will ruffle the feathers of certain communities whose interests were served (or are still being served) by the prevailing legislation.

When a tabled Bill is sent to a National Assembly committee for processing and has been classified (more about that later*), the first procedural step is usually a briefing from the national government department responsible for preparing it – or the individual MP concerned, if it's a private member's Bill. Since most Bills are prepared by a national government department under the guidance of a Minister, it's common practice for that Minister or their deputy to outline the policy position underpinning what's being proposed. At that stage in the process, committee members are expected to limit their input to questions for clarity. Needless to say, opposition party members tend not to respect this procedural nicety and have to be called to order. But we digress ..

The next step in the process is a 'vote of desirability', which is parliamentary speak for a committee decision on whether or not a Bill is deemed necessary. And in the case of most private members' Bills, the response is usually rejection (more about that in a future post) – whereas most (if not all) pieces of proposed new legislation prepared by a national government department pass that test with flying colours and officially begin their passage through Parliament.

Each National Assembly committee is supported by a content adviser, with a parliamentary legal adviser on call. When a Bill is straightforward, input from a legal adviser is generally sought only on procedural matters or for clarity on technicalities. So, committee members drive the process – each contributing to discussions on the Bill's contents based on their party's position.

When a Bill is controversial, the committee's legal adviser plays a more active role in the process. And the same applies when a Bill is an amending piece of legislation. This is mainly because of the complexities of comparing text in the prevailing Act with clauses in the Bill intended to change it. Whatever the case, it is at this juncture in the process of dealing with a controversial or complex piece of legislation (including an amendment Bill) that a committee becomes increasingly dependent on parliamentary legal services for direction.

A parliamentary legal adviser may not overtly comment on the policy underpinning a Bill. That's left to a representative of the national government department responsible for preparing it. And where its contents are especially controversial and/or technically complex, these two role players tend to work hand-in-hand. So, to all intents and purposes, they drive the parliamentary process on complex and/or controversial Bills in both National Assembly and National Council of Provinces committees – with members making mostly superficial input, often without understanding the issues or their longer-term implications for other stakeholders. Which applies across the spectrum of political parties.

Truth be told, very few committee members do their homework on complicated pieces of proposed new legislation, simply resorting to their party positions without necessarily understanding or even caring about the whys and wherefores.

When processing a Bill, the National Assembly committee concerned is constitutionally bound to call for comments from members of the general public, including stakeholders – who may also support their input with oral representations during a parliamentary hearing. The committee may also choose to conduct nationwide public hearings, although this is not a constitutional imperative.

All the input received during this part of the process is then curated by committee support staff so that the national department representative concerned is sufficiently informed of public and stakeholder views and sentiments to prepare a suitable response to each key point made. Generally, the department's response takes the form of a matrix presented to the committee and discussed by members. Where stakeholder input is perceived by the broader department to enhance the Bill, it's woven into relevant clauses by the committee's legal adviser.

A 'B' version of the Bill reflecting stakeholder input deemed useful and appropriate (and not flying in the face of government policy on the issues being addressed) then becomes the focus of the remaining National Assembly committee process. Over time, it may be revised again (occasionally more than once) before being adopted by the committee, submitted to the National Assembly for approval and sent to the National Counci of Provinces (NCOP) for concurrence.

*When classified by the Office of the State Law Adviser before the committee process begins, a Bill may be tagged as a Constitution section 76 piece of legislation with implications for the provinces. Procedurally, this means that, during the NCOP leg of its passage through Parliament, the Bill is considered by each of the provincial legislatures and its proposals subjected to public hearings. So, a section 76 Bill is opened for comment at least twelve times: at least once by the National Assembly committee concerned (which may also hold nationwide hearings), once by the NCOP committee, and once by each of the provincial legislatures (with public hearings in each province).

Nevertheless, although a controversial, technically complex Bill may well be the focus of what appears – on face value – to be a robust, comprehensive public and stakeholder participation process in line with constitutionally enshrined requirements, the input received may not necessarily inform changes to the clauses on contentious issues. Essentially, the national government department concerned determines which general public or stakeholder input is heeded and which comments are ignored.

Opposition party reservations may be expressed and documented in the National Assembly or NCOP committee report accompanying a Bill to the House concerned for approval. They may also be noted during the process culminating in the preparation and adoption of each report. But to all intents and purposes, before the creation of a Government of National Unity (GNU) opposition party objections and reservations made no difference to the outcome. The ANC's majority in the National Assembly and NCOP, as well as their committees, ensured that a Bill prepared by a national government department would eventually be passed by each House and sent to the President for signature.

It remains to be seen if the recent Budget debacle is a sign of things to come for other pieces of legislation on which GNU member parties disagree. If they stand united, there isn't much the new official opposition, uMkhonto weSizwe (MK), or the Economic Freedom Fighters (EFF) will be able to do except make a fuss. Which could be unpleasant.