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The devil is in the detail: The Lockdown Regulations

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The devil is in the detail: The Lockdown Regulations

The devil is in the detail: The Lockdown Regulations

9th July 2020

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The recent global pandemic has seen the world thrown into an unprecedented moment in this century. South Africa, like many countries around the world, has taken drastic measures to respond to Covid-19 in an attempt to curb the spread of the virus. 

The regulatory response has highlighted some inherent challenges with regulation from a legislative drafting perspective: 

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  • The more scenarios a piece of regulation seeks to address in its detail, the harder the regulation is to implement. 
  • Regulation implemented without public consultation tends to leave out practical applicable solutions.
  • Regulation is part of a larger framework. The underlying regulations cannot go beyond the principal statute. 
  • Legislative drafting is a skill.

The more scenarios a regulation seeks to address in its detail, the harder the regulation is to implement

The intention of regulation is to regulate society and direct behaviour. However, the process of enacting legislation and the underlying regulations can often be a slow process which does not keep up with the ever-changing day to day practices and behaviour of society. In light of this time lag, overarching principal legislation is written as a framework while the underlying regulations are drafted in more detail to give meat to the principal piece of legislation - to explain how the legislation should be complied with. The overarching parameter is the Constitution. All legislation and subordinate legislation (i.e. regulations enacted in terms of the principal legislation) must be in line with the Constitution. Even though regulation is intended to give substance to the principal legislation, it cannot be so detailed that it attempts to deal with every scenario. It is impossible for any piece of legislation or regulation to deal with every scenario because life is constantly changing.  The way businesses operate is constantly changing,  individuals’ behaviour is constantly changing, and the progression of the virus in South Africa is also changing. 

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An example of this problem of detailed regulations can be seen in the Lockdown Regulations attempt to list the items retailers are allowed to sell during the lockdown period. Where a regulation specifically lists the permitted items an argument can be made that an item not listed in the regulations is not covered by it and therefore not permitted. Further depending on the extent of the listed items and practices there is a danger of over regulating the behaviour of citizens and defeating the primary objective of the legislation.

In media statements government initially indicated that the Lockdown Regulations were originally enacted to address the rate of new infections and reduce the curve in South Africa. Any version of the Lockdown Regulation should not lose sight of this underlying policy objective.

Regulation implemented without public consultation tends to leave out practical applicable solutions

In an attempt to produce the Lockdown Regulations to address the global pandemic a critical step was skipped, namely comprehensive public comment. The call for public comment when draft legislation and draft subordinate legislation are issued is not merely an administrative law checklist item. On a practical level, it gives government the feedback it needs from the people, professionals and businesses on the ground who work within the space that is being regulated. It provides critical insight into whether the legislative proposals envisaged will actually address the policy concerns the legislation seeks to address. It affords the public ownership of the regulation and makes implementation easier.

Regulation is part of a larger framework. The underlying regulations cannot go beyond the principal statute

Regulatory frameworks can be thought of like building blocks. The base of any regulatory framework is public policy. Government in most instances has a policy document which sets out what government seeks to achieve. Then you have the principal piece of legislation which forms the framework; the foundation upon which the house is built. Once you have your framework then you have the regulations that fill in the specifics but are not detailed to the extent that they attempt to regulate every scenario. Problems often arise when legislation is proposed without clear policy objectives and the outcome is often legislation that addresses behaviour which is not related to the stated policy objective. Problems may also arise where the legislation and regulation are drafted in such a manner that they do not account for evolving circumstances and behavioural practices. 

Legislative drafting is a skill

Sound legislation and subordinate legislation requires good legislative drafting. In reading the various versions of the Lockdown Regulations and reviewing draft legislation over the last decade, it is clear that legislative drafting is a skill. Although most law schools offer interpretation of statutes within the curriculum of a LLB degree, legislative drafting is not one of the courses that finds itself with the LLB curriculum. Exposure to legislative drafting in most instances happens at a postgraduate level. It is critical going forward that our legislative branches connect with those who have the legislative drafting skill set and are able to assist in building solid, well-reasoned, policy driven regulatory frameworks. 

Government is facing numerous judicial challenges to the Lockdown Regulations. It is important in the midst of ensuring that government’s actions are rational and legally sound that we do not lose sight of the fact that we are in the middle of a global pandemic. A global pandemic that must be responded to ensure that we do not lose lives unnecessarily and keep South Africa’s infection rate down. 

The Lockdown Regulations are a good case study of how and why regulation can go wrong. However even these regulations can be saved, that’s the beauty of regulatory law and legislative drafting. It is a reiterative process that evolves as our society and circumstances evolve. 

Written by Lerato Oguntoye, Director: Head of Regulatory Business, CoreAcumen Consulting

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