No Bills by MPs accepted - despite Constitutional Court challenge

The life of the Fourth Parliament is drawing to a close. Not a single Private Member’s bill has been taken forward or passed in this Parliament, and since 1994, only 17 Private Members’ bills, the majority being of a purely technical nature, have been accepted.

Prior to 2012, all private members’ bills had to be referred to the Private Members’ Legislative Proposals and Special Petitions Committee. Under the previous rules, that committee had merely to consider if the proposals went against the spirit, purport or object of the Constitution, sought to initiate legislation beyond the legislative competence of the National Assembly, duplicated existing or pending legislation, or pre-empted similar legislation soon to be introduced by the national executive, would result in a money bill, or were frivolous or vexatious. If so, the proposals should be refused. In practice, even when the Parliamentary legal advisers confirmed that there were no obstacles on any of these grounds, the committee would still refuse to pass the bill on if they did not believe the proposals had “merit”.

Following a successful court challenge to the Rules by Dr Mario Oriani-Ambrosini in October 2012, the Speaker now refers such a bill directly to the relevant portfolio committee. Since that change, eleven bills have been submitted to Portfolio Committees, but not one has been accepted. Under the current system, a portfolio committee is called upon to debate a “motion of desirability” - something that is not regularly done in practice for executive-introduced Bills. This is apparently supposed to safeguard against the introduction of time-wasting or frivolous legislation. However “merit” or “desirability” are both subjective decisions that allow for blocking by majority vote at a very early stage. If frivolity is a concern, which has not been apparent from any of the seriously-presented bills, it might be possible to seek some other solution, such as screening, or perhaps a limitation on the number of private bills to be introduced in a year. Although private members are required to advertise their bills for public comment, at least one portfolio committee has expressed the view that it is not required to take those into account, or interrogate them further in public hearings, before accepting or rejecting the motion of desirability. Two private bills recently rejected sought directly to address concerns that were, respectively, raised by a former Minister of Justice, and aired in the National Development Plan, yet both were quickly deemed “not desirable” without much substantive debate on the broad principles, let alone the detail of the clauses. Another problem has been the time taken between the bill being introduced and its considered, and it is unfortunate that in the run-up to elections, one reason for rejecting the motion of desirability was cited as difficulty in implementing. Perhaps other legislatures’ systems, either for dealing with all bills chronologically as introduced, or during specific times of the year, might be considered.

It is interesting to note that principles suggested in some private members’ bills (invariably presented by opposition parties) presented some time ago– such as trade unions being held responsible for damage caused by their members, and certain restrictions on public servants doing business with the state and declaring interests - were rejected in that format, but were, a few years later, reflected in other executive-introduced legislation.