PRESENTATION TO

COMMITTEE ON THE
SCRUTINY OF DELEGATED
LEGISLATION

N P KESWA
19 May 2011
 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
 APPROACH ON BEST PRACTICE

1. Desktop research on identified parliaments

considered to have effective scrutiny process;

2. Interactions with parliamentary officials during

multilateral meetings on their scrutiny
mechanisms
 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delegated legislation follows until it is disallowed by the House, withdrawn or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.
 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.
 DESKTOP RESEARCH

- Indian Parliament
The Indian Parliament is made up of the House of the People (Lok Sabha) and the
Council of States (Rajya Sabha). 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.
 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.
 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
 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.
 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
 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
THANK YOU