Chapter 11

Legislative process

11.1The Legislative Council is the law-making body of the HKSAR^[1]. Under Article 73(1) of the Basic Law, the Legislative Council has the power and function to enact, amend or repeal laws in accordance with the provisions of the Basic Law and legal procedures. As explained in Chapter 2 ^[2] , this power and function includes passing new laws and amending or repealing existing laws. These laws include principal ordinances and subsidiary legislation. This Chapter explains the process adopted by the Legislative Council in scrutinizing a legislative proposal, be it a bill or an item of subsidiary legislation, and taking it through the various stages of deliberations and decisions in the Council and in committee before the proposal itself as well as any proposed amendments to it are passed into law.

11.2This chapter also describes the roles of various committees of the Council in the legislative process and how a bill or an item of subsidiary legislation may be amended in the process. The procedure for the introduction of a Members' bill is also examined to facilitate understanding of the restrictions under Article 74 of the Basic Law over the introduction of bills by Members and the obligations of a Member to comply with the requirements set out in Rules 50 and 51 of the Rules of Procedure over the form and presentation of a Members' Bill. Previous rulings of the Presidents on draft Members' bills and on the admissibility of Committee Stage amendments are also explained.

Legislative Council's power and function to make and amend laws

11.3The legislative system which had existed in Hong Kong under British rule since 1843 has been adopted under the Basic Law (including the Provisional Legislative Council from July 1997 to 30 June 1998 and the Legislative Council from 1 July 1998 onwards) after the establishment of the HKSAR in July 1997. Article 8 of the Basic Law provides that the laws previously in force in Hong Kong (except those that contravene the Basic Law) are maintained. These laws are the common law, rules of equity, ordinances, subordinate legislation and customary law and they are subject to amendment by the legislature of the HKSAR. The statute law (i.e. legislation) of Hong Kong is published in the loose-leaf edition of the Laws of Hong Kong which comprises ordinances (being primary legislation) and subsidiary legislation (being subordinate legislation). Legislation published in the loose-leaf edition has an important legal status in that it is presumed to be correct unless the contrary is proved.^[3] According to section 3 of the Interpretation and General Clauses Ordinance (Cap. 1), subsidiary legislation means any proclamation, rule, regulation, order, resolution, notice, rule of court, bylaw or other instrument made under or by virtue of any Ordinance and having legislative effect.

11.4Whilst the primary law-making power of the Legislative Council is conferred upon it by Article 73(1) of the Basic Law, the power to make subsidiary legislation is given to delegates that include the Chief Executive and other public officers by provisions contained in individual ordinances.

11.5Under the Basic Law, both the Government and Members of the Legislative Council may introduce legislative proposals to the Legislative Council in accordance with relevant provisions in the Basic Law.^[4] The Legislative Council scrutinizes the proposed legislation and passes it into law in accordance with the legislative procedure set out in the Rules of Procedure.

11.6In respect of subsidiary legislation, the power of the Legislative Council, as explained in Chapter 7 ^[5], may be a positive power to vet and approve an item of subsidiary legislation pursuant to section 35 of Cap. 1, or a scrutiny and intervention power to be exercised in accordance with the negative vetting procedure provided in section 34 of Cap. 1. The extent of power of the Legislature to amend a proposed resolution or an item of subsidiary legislation tabled in the Council has been discussed in Chapter 10 ^[6].

Bills

11.7A proposal to put in place a new law, be it a new principal ordinance or an amendment to an existing ordinance, is called a "bill" although the latter is often referred to as an "amendment bill".

Classification of bills

Public and private bills

11.8Although the HKSAR Legislature has adopted the same legislative process as that used by the pre-1997 Legislature and legislatures in other common law jurisdictions, the classification of bills commonly used in these legislatures, namely public and private bills, is not explicitly provided for in the Rules of Procedure. According to Erskine May ^[7], public bills in the House of Commons of the UK Parliament relate to matters of public policy and are introduced directly by the Member in charge, who may be, and in the majority of cases is, a Government Minister while private bills are for the particular interest or benefit of any person(s), public company or corporation, or local authority, and are promoted by the interested parties themselves by means of petitions. Such classification was more commonly adopted for use in the pre-1997 Legislature. The term "Private Bill" first appeared in the 1884 Standing Orders when referring to proposed legislation involving private rights.^[8] In the 1968 Standing Orders, a more generic term was used. This type of bill was then referred to as a bill "not being a Government measure, intended to affect or benefit some particular person, association or corporate body".^[9] On 3 July 1991, the Private Bills Bill 1990 was passed to stipulate a fee for the presentation of a Private Bill unless the bill is for a charitable purpose or for a Government measure. In section 2 of the Private Bills Ordinance (Cap. 69), "private bill" is defined as a bill which provides primarily for the particular interest or benefit of any individual, association or body corporate rather than the interest or benefit of the public; and is not a Government measure. Cap. 69 is one of the Ordinances which continues to be in force in the HKSAR after 30 June 1997 ^[10].

11.9It has been the practice, even up to this date, that bills relating to private interests, such as legislation to regulate tertiary institutions, charitable organizations and banks, etc.^[11] are sponsored by individual Members of the Council. These Members are required to follow the procedures which apply to "a bill to be presented by a Member" commonly known as a "Members' Bill". Details on these procedures are provided in the latter part of this Chapter.

11.10As Members' bills during the pre-1997 period were only subject to the "charging effect" restriction^[12] in the Standing Orders, quite a number of Members' bills relating to public policies were proposed in the last few years before reunification and some of them were passed into law.^[13] These bills relating to public policies presented by Members were often referred to as "Members' Public Bills" as they related to public policies while those relating to private interests were called "Members' Private Bills". There was no differentiation between public and private bills in the way they were scrutinized and processed in the Council though bills presented by the Government had precedence on the Order Paper over bills moved by individual Members.^[14]

Government bills and Members' bills under the Basic Law

11.11Although the concept of public and private bills continued to apply to the drafting of bills ^[15] after the Basic Law came into effect on 1 July 1997, some modifications have been made to the procedures provided in the Rules of Procedure relating to the introduction of bills to ensure conformity with the Basic Law. In the Basic Law, there is no mention of "public bill" or "private bill", but only "bills introduced by the government" (also called government bills) and "bills introduced by Members". "Bills introduced by the government" and "government bills" are referred to in various parts of the Basic Law, such as in Article 50 which refers to the circumstances where the Legislative Council may be dissolved, Article 72(2) which requires priority to be given to government bills for inclusion in the agenda of the Council, and Annex II which includes reference to procedures for voting on bills. On the other hand, as Members of the Legislative Council may introduce bills under Article 74 of the Basic Law, "bills introduced by individual Members" is also referred to in Annex II to the Basic Law.

11.12The term "Members' bills" is more often used in internal communication with Members when referring to the requirements for bills which are to be introduced by Members as distinct from public officers. The procedure which applied to "Members' bills" in the pre-1997 Legislature has continued to apply, except that such bills must not relate to public expenditure or political structure or the operation of the government, and where the bills relate to government policies, the written consent of the Chief Executive shall be required, as stipulated in Article 74 of the Basic Law. The restrictions and requirement in this Article are reflected in Rule 51(3) and (4) of the Rules of Procedure. It has been a practice for individual Members to seek a ruling from the President on whether their proposed Members' bills contravene the Rules of Procedure before they proceed with the formal procedure for the presentation of the bills, which will be discussed in the latter part of this Chapter.^[16] As these rulings are sought before formal procedures begin, they are also known as "private rulings" in order to distinguish them from rulings of the President made pursuant to specific powers given to him under the Rules of Procedure.

Form of Bills

11.13A bill, after it is passed by the Legislative Council, shall be signed by the Chief Executive and promulgated as a law.^[17] The promulgation is done by way of publication in the Gazette and the bill then becomes an "Ordinance".^[18] It is therefore necessary that a bill for presentation to the Council conforms to the requirements laid down in Rule 50 (Form of Bills) ^[19] of the Rules of Procedure. In the case of a bill to be presented by a Member, a certificate must be obtained from the Law Draftsman of the Department of Justice to confirm that the bill conforms to the requirements of Rule 50 and the general form of Hong Kong legislation.^[20] The certificate signed by the Law Draftsman must be attached to the notice given to the Clerk in respect of the presentation of the bill.^[21]

Title of a bill

11.14Each bill is given a short title which corresponds with the title by which it is to be cited if it becomes law.^[22] This citation title is usually given in the first clause of the bill. The title should describe the bill in a straightforward manner and should not duplicate, after it becomes law, any of the existing Ordinances. Throughout the passage of the bill, the title remains unchanged. ^[23] The short title of a bill, however, is subject to amendment if it is made necessary by an amendment to the bill, but such amendment is dealt with at the end of the proceedings at Committee Stage.^[24]

11.15For proposed new principal legislation, the title of the bill does not carry the year of introduction. For example, the Government introduced proposed new legislation to the Legislative Council on 2 July 2010 to prohibit conduct that prevents, restricts or distorts competition in Hong Kong. The proposed new legislation was entitled "Competition Bill". After the Bill was passed by the Council on 14 June 2012, it was published in Legal Supplement No. 1 of the Gazette with a number given to it according to the order in the year in which it was signed and promulgated by the Chief Executive, namely Competition Ordinance (14 of 2012). It was then published in the loose-leaf edition of the Laws of Hong Kong and was given a chapter number.^[25] The legislation is now known as the "Competition Ordinance (Cap. 619)".^[26]

11.16As regards an amendment bill, the title of the bill carries the same title of the Ordinance to which amendment is to be made together with the year of its publication in the Gazette. For example, the Stamp Duty (Amendment) Bill 2012 was published in the Gazette on 28 December 2012 and its title remained the same throughout the legislative process although it was first read in the Council on 9 January 2013. The Bill was subsequently passed on 22 February 2014 and was published in the Gazette as the Stamp Duty (Amendment) Ordinance 2014 (2 of 2014) on 28 February 2014. ^[27] In relation to omnibus bills which seek to amend more than one ordinance, the title may contain general descriptions such as "miscellaneous amendments" that reflect the object or nature of the bill ^[28]. No separate chapter number is given to an amending ordinance as its contents are incorporated into the relevant principal ordinance(s).^[29]

11.17Where the word "The" is included as part of the name of a body in the title, as in the case of The Legislative Council Commission Bill, the word "The" ought to be included each time when the full title of the Bill is mentioned. For example, if a Bills Committee is to be formed, the name of the committee should be "Bills Committee on The Legislative Council Commission Bill".

Long title

11.18According to Rule 50(3) of the Rules of Procedure, a bill shall be given a long title setting out the purposes of the bill in general terms. This long title is positioned before the citation or short title clause. ^[30] Historically, the long title of a bill served no more than a general statement of the purposes of the bill although in UK practice it must cover the scope of the Bill which affects how it can be amended. For example, the long title of District Councils Bill introduced to the Council on 11 December 1998 read as follows:

"A Bill to provide for the declaration of Districts, the establishment, composition and functions of District Councils, the procedure for election of persons to be members of District Councils; and to provide for related matters."

11.19The current drafting practice is that the long title "has to be wide enough to embrace the whole of the contents of the Bill and is usually drafted to be specific enough to give fair notice of the subject of the Bill". ^[31] For example, the long title of the Stamp Duty (Amendment) Bill 2012 read as follows:

"A Bill to amend the Stamp Duty Ordinance to impose a higher rate of special stamp duty on certain transactions of residential property acquired on or after 27 October 2012 if those transactions occur within 36 months after the acquisition, and to impose buyer's stamp duty on certain agreements for sale and conveyances on sale of residential property executed on or after 27 October 2012; and to provide for incidental and related matters."

11.20Given that the requirement for a long title under the Rules of Procedure is to set out the purposes of the bill in general terms, there is no hard and fast rule on how exactly a long title should be drafted. Nevertheless, where the long title contains too much of the substantial details of the bill any changes to the clauses may render it necessary to amend the long title of the bill. The long title is usually not subject to amendment at the Committee Stage unless an amendment made to the provisions in the bill makes it necessary to do so that it covers the scope of the Bill. But the scope cannot be extended merely by amending the words of the long title. An amendment to the long title only follows from a substantive amendment to the body of the Bill. It may also be amended for some technical reasons such as to improve the language or to clarify a certain point which is within the scope of a bill.^[32] [33]

Enacting formula and preamble

11.21Immediately after the long title and before the clauses of the bill, there is the enacting formula which announces the authority under which the law is enacted. The wording of the enacting formula after reunification is "Enacted by the Legislative Council". Enacting formula was a requirement of the Royal Instructions which signified the authority for enacting. Previously it was written along the line of "with the advice and consent of the Legislative Council …". With the coming into operation of the Basic Law, bills passed by the Legislative Council do not become law until they are signed and promulgated by the Chief Executive under Article 76 of the Basic Law. The enacting formula currently only reflects the position up to the completion of the enacting stage.

11.22On occasions, a preamble may be included to precede the enacting formula to state the reasons for and the intended effects of the proposed legislation ^[34], but it is no longer a common practice in recent years. An example may be found in the Shenzhen Bay Port Hong Kong Port Area Bill ^[35] in which a preamble was provided to set out the decision of the Standing Committee of the Tenth National People's Congress on the need to set up a Hong Kong Port Area at the Shenzhen Bay Port for customs clearance and inspection of people.

Short title and commencement date

11.23The short title is set out in the first clause of a bill. Where a commencement date of the ordinance is to be provided as one other than the date of publication of the ordinance in the Gazette, that date or the mechanism for appointing that date is normally provided in a sub-clause separated from that for the short title.^[36] A notice that appoints the commencement date of an ordinance in accordance with such provision in an ordinance is generally entitled a commencement notice. It is subsidiary legislation^[37] that has to be made by the appointing authority, which is normally the authority responsible for the implementation of the ordinance.

Language

11.24All bills must be presented in the Chinese and English languages. However, Rule 50(4) of the Rules of Procedure provides for this requirement to be subject to a direction given by the Chief Executive in Council under section 4(3) of the Official Languages Ordinance (Cap. 5) if the Chief Executive in Council is of the opinion that a Bill is urgent and its enactment as an Ordinance in both official languages will occasion unreasonable delay. This requirement does not apply to subsidiary legislation.^[38]

Structure of a bill

11.25A bill is divided into clauses numbered consecutively. Each clause will become a section of the Ordinance after enactment, except in the case of amendment bills. To facilitate reading, Rule 50(6) of the Rules of Procedure stipulates that a descriptive section heading is required for each clause. Where subclauses are used, each subclause is referred to as subsection after enactment. A subclause may be divided into paragraphs and then subparagraphs. Grouping of clauses into Parts (and dividing a Part into Divisions) is common in the case of long and complicated bills ^[39].

11.26Where technical matters or matters of detail are to be provided, they may be set out in the form of Schedules which are placed after the main body of the bill  ^[40]. A Schedule is part of the bill but is dependent on specific provisions in the bill which give effect to the Schedule. Matters in an ordinance which are subject to amendment by a delegated authority in the form of subsidiary legislation are usually provided in Schedules  ^[41].

11.27In the case of an amendment bill, the clauses will not become sections. Each clause in the amendment bill aims to delete or add words in a specific provision in an existing ordinance. Where the bill is passed, the amendments proposed to be effected by the clauses of the passed bill are subsumed accordingly into the existing ordinance. Where new provisions are added, the next Arabic numeral in numerical sequence is used  if  the  new  provision appears at the end of a section / subsection / paragraph / subparagraph. If the new provision is between two existing provisions, alphabetical letters are used, e.g. section 23A will be inserted between section 23 and section 24.

11.28Regarding the numbering of clauses and schedules, a new numbering system was originally proposed for use in the Companies Bill in 2011. Under that system, each clause was to be identified by two sets of numbers connected by a decimal, with the first set representing the number of a part of the bill that the clause is under, and the second representing the numeric position of the clause within that part. Noting this proposed change in the numbering system, the then Secretary General of the Legislative Council Secretariat (who is also Clerk to the Legislative Council) advised that Rule 50(6) of the Rules of Procedure required that a bill "shall be divided into clauses numbered consecutively". Under the new system, the clauses would not be numbered consecutively and there would be a number gap between the last clause of a part and the first clause of the part that followed. It was therefore considered that the new numbering system did not comply with the requirement of Rule 50(6). In the light of this advice, the Government decided that the new numbering system would not be used for the Companies Bill. At the House Committee's meeting on 7 January 2011, it was considered that should the Government plan to adopt a new numbering system in future, consultation with the Legislative Council would be necessary.^[42]

Explanatory memorandum

11.29An explanatory memorandum which states the contents and objects of the bill in non-technical language must be attached to the bill.^[43] It should provide a summary of the bill including the background to its enactment and an explanation of the various provisions. The explanatory memorandum does not form part of the bill but should be read in conjunction with it. The explanatory memorandum is not published in the Gazette with the enacted Ordinance or in the loose-leaf edition of the Laws of Hong Kong.

Saving provision for "private bills"

11.30In the case of a Members' bill which falls within the definition of a "private bill" in the Private Bills Ordinance (Cap. 69), a saving provision must be included in the bill, as follows ^[44]:

"Saving

Nothing in this Ordinance shall affect or be deemed to affect the rights of the Central Authorities or the Government of the Hong Kong Special Administrative Region under the Basic Law and other laws, or the rights of any body politic or corporate or of any other person except such as are mentioned in this Ordinance and those claiming by, from or under them."

Subsidiary legislation and subordinate legislation

11.31"Subsidiary legislation" and "subordinate legislation" are treated as expressions having the same meaning.^[45] The more commonly used expression is the former, which embraces the various forms of subsidiary legislation which are made by holders of public offices or other authorities (delegates) pursuant to enabling provisions in an ordinance to do so. As explained in Chapter 7  ^[46], subsidiary legislation may take the form of a proclamation, rule, regulation, order, resolution, notice, rule of court or bylaws. It may be amended at any time by the same delegates and in the same manner by and in which it was made. ^[47] Details on the making of subsidiary legislation are provided in Part V of the Interpretation and General Clauses Ordinance (Cap. 1) which also sets out the Legislative Council's power of scrutiny and intervention through the negative and positive vetting procedures provided respectively in section 34 and section 35 of Cap. 1 and in accordance with the provisions of the Rules of Procedure.

Publication and numbering of subsidiary legislation

11.32Subsidiary legislation must be published in the Gazette.^[48] For subsidiary legislation subject to the negative vetting procedure, the publication in the Gazette normally takes place on a Friday ^[49] before the subsidiary legislation is laid on the Table of the Legislative Council at a meeting following that Friday (usually on the following Wednesday). Subsidiary legislation is published in Legal Supplement No. 2 of the Gazette. Each item is given a Legal Notice Number (L.N. No.) in accordance with the order in the year in which it was published starting with L.N. No. 1 in the beginning of a calendar year. For example, the first item of subsidiary legislation subject to negative vetting procedure in 2015 was the Employment (Amendment) Ordinance 2014 (Commencement) Notice which was published in Legal Supplement No. 2 of the Gazette issued on 2 January 2015 as L.N. 1 of 2015.

11.33It has been the practice of the Department of Justice to assign an identification reference to an item of subsidiary legislation by giving it the chapter number of its principal ordinance followed by an alphabetical letter in the upper case to indicate the order in which the item was first made in relation to other items of subsidiary legislation that were made under the same ordinance. For example, there are 19 items of subsidiary legislation made under the Public Finance Ordinance (Cap. 2); their numbering is from Cap. 2A to Cap. 2S. An item of amending subsidiary legislation is not given a separate Cap. No. with alphabetical letter as its contents will be incorporated into the existing subsidiary legislation.^[50]

11.34Subsidiary legislation that is subject to the positive vetting procedure is not published in the Gazette until after the motion to approve it is passed. A notice must be given to the Clerk not later than 12 clear days before the date of the Council meeting at which the motion is to be considered by the Council.^[51] When the motion for the approval of the subsidiary legislation is passed it becomes a resolution which will be published in the Gazette. The subsidiary legislation so approved under this procedure will have the force of law and will be incorporated into the Laws of Hong Kong in accordance with its provisions.

Commencement notice

11.35Subsidiary legislation comes into effect at the beginning of the day on which it is published in the Gazette or another day as specified in the subsidiary legislation.^[52] Where the subsidiary legislation is to commence on, or be repealed from, a date to be notified in the Gazette, a separate commencement notice is required for fixing the date of commencement or date of repeal. A notice may fix different commencement dates for different provisions. ^[53] The commencement notice is published in Legal Supplement No. 2 and, unless otherwise stated in the principal ordinance or the subsidiary legislation concerned, such notice is subject to the negative vetting procedure of the Legislative Council under section 34 of Cap. 1.

11.36The question of whether a commencement notice is subsidiary legislation was discussed in June 1996. In a ruling on a Member's proposed amendments to two commencement notices of the Sex Discrimination Ordinance (67 of 1995 and 86 of 1995), President Andrew WONG made it clear that a commencement notice is part of the legislative process because such an order brings the legislation into effect, i.e. a delegated legislative act which has legislative effect. The President also referred to Erskine May (21st Ed p.538) that "[t]he commencement of a statute may more conveniently be provided for by delegated legislation" to stress that this was to be preferred in the Hong Kong context. The President's ruling is at Appendix 11-A.

11.37Where the commencement date of an enacted ordinance is other than the date on which such ordinance is published in the Gazette, a separate commencement notice is required for appointing another date for the commencement of the ordinance. In such case, the bill is regarded to have been enacted as an ordinance but not yet coming into operation until the beginning of the day appointed by the commencement notice.

Pre-legislative scrutiny

11.38The Government is primarily responsible for proposing new legislation or amendments to existing legislation. Where a Government measure is to be enacted by statute, it is important that the proposed legislation is accepted by the general public and that any parties whose interests may be affected have the opportunity to express their opinions and seek redress before the new legislation is enacted. Owing to the limited time available for scrutiny after a bill or an item of subsidiary legislation is formally presented to the Council, it is the practice in the Hong Kong Legislature to start discussion on the principles and merits of proposed legislation and to engage the public well before a decision is made on its final form. The process of discussion should also be conducted in an open and transparent manner.

11.39As mentioned in Chapter 5  ^[54], there is an established understanding with the Government that the Legislature should be given ample time to study and scrutinize a bill or an item of subsidiary legislation. It has been a practice since the First Legislative Council that at the start of a new session, each Director of Bureau would inform the corresponding Legislative Council Panel of the major legislative proposals to be introduced to the Council within the session. This will facilitate the relevant Panel, which has a responsibility to oversee the policies of the Bureau, to plan how and when discussions on the legislative proposals should be conducted. The Government is encouraged to conduct its own public consultation in the course of drawing up a legislative proposal and to provide a summary of the views collected when it briefs the Legislative Council Panel on the proposal. This will enable Members of the Legislature to have a comprehensive understanding of its likely impact of the proposal on any sector and on the community at large.

11.40When the legislative proposal comes before the Panel, the Government normally provides a brief on the purpose and merits of the proposal with some details of the proposal but not the text of the proposed legislation. Initial discussion on the legislative proposal will take place at the Panel's regular meeting or series of meetings dedicated for the purpose,

depending on the complexity of the proposed legislation.^[55] The Panel may decide to conduct public hearings to enable all affected and interested parties to come forward with their views and suggestions on how the proposed legislation may be improved. Where public hearings are to be conducted, notice is given through the Legislative Council's website and, if appropriate, also by invitation to relevant bodies and all District Councils. All parties are invited to submit written views before the hearings and the submissions are circulated to all members. The Panel may also invite any parties who have expressed interest in appearing before the Panel to give an oral presentation.

11.41At the conclusion of public hearings, the Panel will consider the views collected before it advises the Government whether the proposed legislation is ready for formal presentation or whether further study is required. Where the proposed legislation is of a complex nature, Members may ask for a draft bill (or subsidiary legislation) to be prepared for further consultation before formal introduction. This draft bill, usually referred to as a White Bill, is normally considered by a subcommittee formed under the House Committee so that any Member who may not be a member of the Panel may take part in the study of the White Bill.^[56] However, the provision of a draft bill for pre-legislative scrutiny is no longer a common practice in recent years.

Compliance with Article 74 of the Basic Law

11.42As the same rules governing the introduction of bills applied to both Members and public officers under the Standing Orders, Members in the pre-1997 Legislature were not subject to restrictions other than those which were considered by the President to have a charging effect, in which case the written consent of the Governor was required. The principle about charging derives from the constitutional convention in the UK whereby the Crown (or Executive) requests money while the House of Commons grants it.^[57] Nevertheless, it should be noted that under the Letters Patent, it was the Governor who had the power to make laws, by and with the consent of the Legislative Council. ^[58] Article X of the Letters Patent (1991) provided that "When a Bill passed by the Legislative Council is presented to the Governor for his assent, he shall, according to his discretion, but subject to any Instructions addressed to him under Our Sign Manual and Signet or through one of Our Principal Secretaries of State, declare that he assents thereto, or refuses his assent to the same, or that he reserves the same for the signification of Our pleasure". In other words, despite the absence of restrictions in the matters contained in the bills introduced by individual Members, the final discretion of whether such bills, if passed by the Legislative Council, should be promulgated rested with the Governor; albeit that the discretion to refuse assent was very rarely exercised.

11.43Article 74 of the Basic Law provides that Members of the Legislative Council may introduce bills which do not relate to public expenditure or political structure or the operation of the government. Bills relating to government policies require the written consent of the Chief Executive. Due to the lack of precedents in this area, it had taken some years for the executive authorities and the legislature to come to an understanding of how the Article should apply. It was at one time considered by the then Solicitor-General that it should be the Chief Executive who would decide whether certain proposed motions or bills and related proposed amendments were subject to Article 48(10)  ^[59] and Article 74 of the Basic Law. ^[60] The matter was studied by the House Committee and, after deliberation  ^[61], it was of the view that since Article 75 provided the Legislative Council with the power to make its own rules of procedure, it was for the Council to draw up its own procedures which on the one hand satisfied the requirements under the Basic Law, and on the other, facilitated the conduct of business of the Council in the most effective manner. Having regard to the functions of the executive authorities and the legislature and the various articles to enable the two bodies to regulate and monitor the activities of each other under the Basic Law, the House Committee considered that the President, who was empowered to decide whether bills, motions and amendments to bills might be put on the Agenda of the Council, should be the one to decide whether any bills introduced by Members were related to the specific areas specified under Article 74.^[62] The report of the House Committee was noted by the Government.

Purpose of Article 74 of the Basic Law

11.44The restrictions under Article 74 of the Basic Law were new not only to Members of the Legislature, but also to the Government. Different interpretations of the terms in the Article were put forward by both the Government and individual Members proposing bills to the Council when the President invited them to give views on the bills as well as each other's responses. It has taken some years for certain general principles to be developed on how Article 74 should apply to Members' bills which are set out in various rulings made by the President. It is common practice that a Member who intends to present a bill would first seek a private ruling from the President before giving notice of his intention to present the bill. The President will give his opinion having regard to Rule 51(3) and (4) of the Rules of Procedure which reflect the requirements under Article 74 of the Basic Law.

11.45The principles adopted by the President for considering whether a bill is caught by Rule 51(3) and (4) of the Rules of Procedure are first seen in two rulings made by President Rita FAN in July 1999 in response to the requests for private rulings on two bills proposed by Mr Andrew CHENG Kar-foo ^[63] and Mr LEE Cheuk-yan ^[64]. In these rulings, Mrs FAN referred to various articles in the Basic Law concerning the power and function of the executive authorities to introduce bills and the budget, and examined the way checks and balances were provided between the executive and the legislature under the Basic Law. She noted that in respect of the introduction of bills, Article 62 of the Basic Law provides that the executive authorities have the powers and functions to draft and introduce bills, motions and subordinate legislation. On the other hand, while Article 74 provides that Members of the Legislative Council may introduce bills, it also states that they may do so in accordance with the provisions of the Basic Law and subject to the restrictions imposed by this article. Mrs FAN's conclusion was that Article 74 is an enabling article which enables Members of the Legislative Council to introduce bills but at the same time imposes conditions and restrictions on such introduction. In the UK Parliament, private Members in both Houses may introduce Bills (with limited time for progress in the Commons) but any charging provision in them must be supported by an enabling Government motion in the Commons known as a 'Money Resolution'. Without such a Motion on the Order Paper, the charging provisions cannot be moved and they can only be agreed to once the Resolution has been made.^[65]

Interpretation of specific terms in Article 74

11.46When the President makes a private ruling, he first invites the Government to give views on the proposed bill. He then invites the Member proposing the bill to comment on the views of the Government. Where needed, the President may further invites the Government to clarify certain points which may not have been made clear in its first response, e.g. the estimated public expenditure which may be incurred from the implementation of the statutory requirement proposed in the bill. The President at the same time invites the Counsel to the Legislature to advise on any legal and constitutional issues as well as any fundamental principles that may apply in other common law jurisdictions and are relevant, for his consideration. With the advice of the Clerk to the Legislative Council on precedent cases (if any), the President then forms his own opinion on whether the bill is caught by Rule 51(3) and (4) of the Rules of Procedure.

11.47In the course of consulting the Government and Members proposing the two bills in 1999 (referred to in paragraph 11.45 above), President Rita FAN noted the arguments between the Government and the two Members over the interpretation of the specific terms used in Rule 51(3) and (4), which included "relate to", "public expenditure", "the operation of the government" and "government policies". She took the opportunity to examine these terms and, in her ruling on 16 July 1999, she gave her views on how she had interpreted these terms when forming her opinions on the two Bills. Mrs FAN came to the view that no matter what her views might be on these terms, they should only be taken as guidelines and should be applied on a case by case basis and on their own merits.^[66] This interpretation of the terms in Rule 51(3) and (4) has been referred to in subsequent Presidents' rulings and is explained in detail below together with other examples.

"Relate to"

11.48Whether a bill is caught by Rule 51(3) and (4) of the Rules of Procedure depends largely on how restrictive or how broad the term "relate to" is interpreted. This term is adopted directly from Article 74 of the Basic Law. The Government's opinion at the time when its view was sought in 1999 was that the term "relate to" should be interpreted as having "a direct, indirect, consequential or incidental bearing on the matter". This view was disputed by the two Members seeking to introduce their respective bills. After considering the viewpoints of both sides, Mrs FAN came to the view that in order for a bill not to be caught by Rule 51(3) and (4), the implementation of the bill must not have substantive effect on one or more than one of the areas prescribed in the Rule.

"Public expenditure"

11.49The term "public expenditure" in the context of Rule 51(3) of the Rules of Procedure was held by President Mrs FAN to be wider in scope than "to dispose of or charge any part of the revenue or other public moneys of Hong Kong", i.e. the principle of "charging effect" enshrined in Rules 31 and 57(6) of the Rules of Procedure. According to the President, the "charging effect" provisions in Rules 31 and 57(6) were self-imposed restrictions which have no relation to Article 74. A bill will relate to public expenditure under Rule 51(3) if the implementation of the bill has the effect of either increasing or reducing public expenditure, and the amount so increased or reduced is substantial and is such that the President must not ignore.^[67]

11.50The above interpretation was adopted when President Rita FAN considered Mr LEE Cheuk-yan's proposed Labour Relations (Rights to Representation, Consultation and Collective Bargaining) Bill. The President noted the Government's estimated additional staff cost of $23.3 million per annum, and she considered that this amount alone was substantial and was such that she must not ignore. She considered that Mr LEE's Bill related to public expenditure and so could not be introduced. The President's ruling dated 19 July 1999 is at Appendix 11-B.

11.51Questions were then raised on whether an empowering provision which did not impose a duty or obligation on the Government to take action should be regarded as one related to public expenditure. A ruling in February 2001  ^[68] explained that even if an empowering provision provides the Government with the discretion to exercise the power or not, as in the case of the bringing of potentially costly civil actions against certain businesses was not the same as exercising the power to pardon or commute prison sentences which did not incur substantial public expenditure. If the discretion, once exercised, would give rise to a cost which is so substantial that it cannot be ignored, the bill will be regarded as relating to public expenditure.

11.52As to the extent to which the amount of additional public expenditure may be regarded as substantial and must not be ignored, President Jasper TSANG's ruling on 25 June 2010 may illustrate this point. In 2010, the President was requested to make a private ruling on the Medical Registration (Amendment) Bill 2010 proposed by Dr LEUNG Ka-lau. The proposed Bill aimed to include provisions to regulate companies carrying on the business of medical practices by requiring a majority of the directors of those companies to be registered medical practitioners. These proposed provisions were modeled on similar provisions in the Dentists Registration Ordinance (Cap. 156). In examining the financial impact on public expenditure, the President studied the assumptions made by the Government in coming up with its estimated cost and referred to the actual experience after the implementation of the similar provisions in Cap. 156. He considered the Government's assumption difficult to accept and adopted Dr LEUNG's relevant assumption instead. According to Dr LEUNG's assumption, it was estimated that the additional recurrent cost would be in the region of $21,600 per annum, which could not be regarded as significant when compared with the estimated expenditure of $4.5 billion of the Department of Health for the 2010-2011 financial year.^[69]

"Operation of the Government"

11.53Although the Government has argued that the word "government" in the context of Rule 51(3) should include all three branches of the government, i.e. the executive authorities, the legislature and the judiciary, President Rita FAN stated in her ruling on 19 July 1999 ^[70] that it was clear that "government" in this context does not include the legislature and the judiciary. She would form the opinion that a bill relates to the operation of the government if she was satisfied that the implementation of a proposed bill would have obvious effect on the structure and procedure of the executive authorities, and that the effect would not be of a temporary nature.

11.54In January 2007, President Rita FAN ruled that Ms CHOY So-yuk's proposed Forest and Countryside (Amendment) Bill 2006 related to the operation of the Government. In her ruling, Mrs FAN stated that she took Counsel's advice that when assessing the effect of the Bill on the operation of the Government, the key question she should consider was whether the proposed new statutory requirements would result in changes in the organization structure of the Government, which should include the distribution of responsibilities among government departments and their procedure or working process, in implementing the new requirements contained in the Bill. As the Bill proposed to introduce a new statutory requirement of obtaining a special permit from the Director of Agriculture, Fisheries and Conservation to carry out excavation and building works in tree protection zones, the President considered that it was an additional statutory requirement. The proposal clearly would change the present procedure for carrying out excavation or building works on Government land and the effect was not a temporary one because the additional statutory requirement, once enacted, would remain in force until it was amended or repealed.^[71]

11.55In May 2009, in considering Mr CHAN Wai-yip's proposed Smoking (Public Health) (Amendment) Bill 2009, President Jasper TSANG adopted the same principle established in the rulings of his predecessor. Mr CHAN's proposed Bill sought to defer the implementation date of the smoking ban on certain establishments (listed in Part 2 of Schedule 6 to the Ordinance) from the original implementation date of 1 July 2009 by two years to 1 July 2011. The Government argued that the extension would have an obvious or substantive impact on the procedure of the Government as it could not enforce the smoking ban during the extension period. In view of the absence of information to substantiate how any procedure of the Government would be affected, the President did not find the proposed Bill related to the operation of the Government. However, as the proposed Bill was ruled by the President to relate to Government policies, the written consent of the Chief Executive was required.^[72]

11.56A similar ruling was made by President Jasper TSANG on the Medical Registration (Amendment) Bill 2010 proposed by Dr LEUNG Ka-lau referred to in paragraph 11.51 above. Although the Government argued that certain working procedures might need to be revised to assist in enforcing the proposed Bill, the President could not find any information from the Government which might indicate an obvious effect on either the structure or procedure of the executive authorities for that purpose.^[73]

"Government policies"

11.57President Rita FAN gave an interpretation of the term "government policies" in the context of Rule 51(4) of the Rules of Procedure in her ruling on Mr Andrew CHENG Kar-far's proposed Employment (Amendment) Bill 1999. The Rule, which reflects the second part of Article 74 of the Basic Law, stipulates that the notice of presentation of any bill which, in the opinion of the President, relates to government policies must be accompanied by the written consent of the Chief Executive in respect of the bill. According to the President's ruling, government policies referred to in Article 74 are those that have been decided by the Chief Executive or Chief Executive in Council under Articles 48(4) and 56 of the Basic Law. These also include the policies decided by former Governor or Governors in Council prior to the implementation of the Basic Law which are still in force. She also considered that government policies may need to be implemented through legislation and hence policies reflected in legislation are also government policies for the purpose of Rule 51(4). In this context, policies decided by public officers under delegated authority from the Chief Executive and policies promulgated in the Legislative Council or its committees by designated public officers are also regarded as government policies, but these do not include policies which are being formulated.

11.58In the case of Mr Andrew CHENG Kar-foo's proposed Employment (Amendment) Bill 1999, the President noted that the Government had taken action to achieve the objective of encouraging negotiation between employers and employees instead of, as proposed by Mr CHENG, regulating such negotiation though legislation. As the matter had been promulgated at a meeting of the Legislative Council before Mr CHENG's submission of his proposed Bill, she considered that the Bill related to government policies and would require the written consent of the Chief Executive. The President's ruling is at Appendix 11-C.

11.59Since 2001, for the purpose of enhancing the competitiveness of the Hong Kong banking market, a number of bank merger bills have been proposed by individual Members for introduction to the Council. Although it was Government's policy to encourage mergers and acquisitions to consolidate the banking sector in Hong Kong ^[74], the bills proposed by these Members still fell within the purview of Rule 51(3) and (4) and a private ruling by the President was sought on each of these cases. The first of this series were two Bills, namely Bank of China (Hong Kong) Limited (Merger) Bill proposed by Dr David LI Kwok-po and The Bank of East Asia, Limited Bill proposed by Mr NG Leung-sing, in May 2001. The Government considered that both Bills related to its policies on bank merger, issue of legal tender notes, taxation and control of tenancies. Having considered the advice of the Counsel to the Legislature, President Rita FAN was of the opinion that both Bills related to Government's policy on the regulation of banks, the set-off of losses against profits of corporations and the control of tenancies, as reflected in the relevant legislation. She ruled that written consent from the Chief Executive was required. Both Dr LI and Mr NG subsequently obtained the written consent of the Chief Executive and introduced their Bills respectively to the Council on 13 June 2001. Both Bills were passed on 12 July 2001.^[75]

11.60As regards whether a bill which seeks to amend an existing ordinance may be related to Government policies, President Rita FAN provided further explanation in her ruling on Mr Eric LI Ka-cheung's Professional Accountants (Amendment) Bill 2004 on 4 March 2004. The proposed Bill sought to enhance regulation of the accounting profession by altering the name and membership structure of the Hong Kong Society of Accountants ("the Society") and providing for the professional development of professional accountants. In her ruling, Mrs FAN referred to the view of the Counsel to the Legislature that the test of whether a bill should be classified as one having a substantive effect on a Government policy or policies is neither as high as requiring that the bill must have an important effect nor so low that it need merely have some tenuous link with a Government policy articulated by the Administration; and that a bill does not relate to Government policies simply because it seeks to amend an ordinance in order to address an issue which is merely incidental to a Government policy. As it was Government's policy to regulate the accounting profession and Mr LI's proposed Bill sought to add lay members to be appointed by the Chief Executive to the Society's Council and its Investigation Panel, Mrs FAN ruled that the proposed Bill related to Government policies. ^[76] Mr LI subsequently obtained the written consent of the Chief Executive and introduced the Bill to the Council on 24 March 2004. The Bill was passed on 9 July 2004.^[77]

11.61In President Jasper TSANG's ruling on 22 February 2013 on Mr Kenneth LEUNG's proposed Professional Accountants (Amendment) Bill 2013, the President reiterated the view he had expressed in his ruling on an almost identical Bill proposed by Mr Paul CHAN Mo-po, the proceedings of which could not be completed before the Council stood prorogued in July 2012. The President recorded that the Professional Accountants Ordinance was introduced as a Government Bill and enacted in 1972 to regulate the accountancy profession. He further noted that the provisions sought to be amended by the proposed Bill were previously amended by the Government. It was clear to him that the whole Ordinance represented Government policies; and that what he needed to consider was whether the proposed amendments would have a substantive effect on Government policies. After examining the details of the proposed amendments in the proposed Bill, the President ruled that the Bill related to Government policies. Mr LEUNG subsequently obtained the written consent of the Chief Executive and introduced the Bill on 26 April 2013. The Bill was passed on 30 October 2013.

"Political structure"

11.62In November 1997, President Rita FAN gave a ruling on the matter of whether Mr Eric LI Ka-cheung could introduce a bill that sought to alter the composition of the Social Welfare Functional Constituency in the Legislative Council Ordinance (Cap. 542) so that only registered social workers might vote in the said Constituency. In her ruling, she opined that the proposal in the bill related to political structure. Her explanation was that whilst the amended composition of the Social Welfare Functional Constituency as proposed in the Bill was not in conflict with the decision of the Preparatory Committee for the HKSAR regarding the formation of the First Legislative Council, the proposal related to the specific method for the formation of the First Legislative Council. In her view, for a bill to be caught by the provision that it might "relate to political structure" in the Rules of Procedure, it is not necessary that the proposed bill be in conflict with Article 68 and Annex II of the Basic Law and/or the decision of the Preparatory Committee; it is sufficient that the bill relates to them and thus relates to the political structure ^[78].

Legislative procedures

11.63As regards the manner or method of enacting, amending and repealing laws, the Legislative Council is required to exercise these powers and functions in accordance with the provisions of the Basic Law and legal procedures.^[79] The Basic Law empowers the Legislative Council to makes its own rules of procedure which, according to judicial judgment^[80], are recognized as "legal procedures" governing the manner in which the Legislative Council enacts, amends or repeals laws. On 2 July 1998, the First Legislative Council of the HKSAR adopted its Rules of Procedure which have been used by the successive terms of the HKSAR Legislature. The Rules of Procedure provide for a legislative process, which is adopted from that in the pre-1997 Standing Orders and is similar to the legislative procedures commonly used by legislatures of common law jurisdictions. While modifications have been made to some of the relevant provisions to ensure compliance with the Basic Law and to cater for new developments towards greater transparency and accountability, the principles behind the various steps in the legislative process remain largely the same.

Gazettal and presentation of bills

11.64Notice may at any time be given by a Member or a designated public officer of his intention to present a bill. A standard notice form is at Appendix 11-D. The notice is to be sent to the office of the Clerk with a copy of the bill and an explanatory memorandum (which states the contents and objects of the bill in non-technical language) attached to the bill as required under Rule 50(7) of the Rules of Procedure.^[81] The bill should be presented in both the Chinese and English languages but in case only one official language is used, a certificate stating the direction of the Chief Executive in Council for the bill to be so presented should be attached to the notice.^[82] Such a direction will only be considered in cases of urgency where publication in both official languages would cause unreasonable delay.^[83]

Government bills

11.65Notice for the presentation of a Government bill is usually received after the Chief Executive in Council has approved the bill for introduction to the Legislative Council. Where a bill is of an important and urgent nature and has not been discussed by a Panel beforehand, arrangement will usually be made for the relevant Panel to be briefed on the bill as soon as practicable after the relevant meeting of the Executive Council. It is common practice for the Government to issue a Legislative Council Brief with the full text of the bill when notice is given to the Clerk for the presentation of the bill. The Legislative Council Brief is issued to all Members as soon as it is received, usually on the day of receipt of the notice of presentation of the bill.

11.66After receipt of a bill for presentation to the Council, the Clerk must arrange for the bill and its explanatory memorandum to be published in the Gazette unless the President directs that it shall not be published before it has been read the first time.^[84] Such a direction is exceptional. The bill is usually published in the Gazette on the nearest Friday after receipt of the notice.

Members' bills

11.67As regards a Members' bill, the Member presenting the bill would also have sought a private ruling from the President prior to giving notice of his intention to present it, and have consulted the relevant Panel on the details of the legislative proposal. It is not uncommon that approach to the President for a private ruling and consultation with the Panel take place at about the same time. Such approach and consultation, however, are not a pre-condition for presenting a bill. Any Member may at any time give notice to the Clerk of his intention to present a bill but if the bill, in the opinion of the President, contravenes Rule 51(3) or (4), it will not be included on the Agenda of the Council. If the bill, in the opinion of the President, relates to Government policies, the written consent of the Chief Executive in respect of the bill should be attached to the notice.^[85] For all Members' bills, the notice should also be accompanied by a certificate signed by the Law Draftsman to confirm conformity to the requirements of Rule 50 and the general form of Hong Kong legislation.^[86]

11.68If the bill is a "private bill" as defined in the Private Bills Ordinance (Cap. 69) ^[87], the Member is required to attach a certificate signed by the Member, stating that the bill has been published in two successive publications of the Gazette and that notice of the bill has been given by two advertisements in each of two daily newspapers published in Hong Kong, one being a Chinese language newspaper and the other being an English language newspaper.^[88] If this has been done, there is no need for the Clerk to arrange for it to be published in the Gazette.^[89] Pursuant to section 3(1) of Cap. 69, a Member presenting a "private bill" is required to pay to the Director of Accounting Services a fee specified in the Schedule to the Ordinance. Under section 3(2) of Cap. 69, the Chief Secretary for Administration may, upon an application made by the promoter of a bill, waive the fee if he is satisfied that the bill is for a charitable purpose within the meaning of section 2 of the Registered Trustees Incorporation Ordinance (Cap. 306) or facilitates a Government measure.

Member or public officer in charge of a bill

11.69The Member (or public officer) presenting a bill is known as the Member (or public officer) in charge of the bill. If a bill is introduced jointly by more than one Member, those Members who have jointly signed the notice of presentation should designate one of them as the Member in charge of the bill and this should be stated in the notice for presentation.^[90] All references to a Member in charge of a bill in the Rules of Procedure shall also apply to a public officer in charge of a bill.^[91]

Bills with substantially the same provisions

11.70Similar to motions, a bill which contains substantially the same provisions as another bill may be allowed by the President to be placed on the Agenda of the Council subject to all requirements in respect of the presentation of a bill being complied with. However, where a decision has been made by the Council on a bill at second reading, another bill with substantially the same provisions shall not be further proceeded with in the same session and shall be withdrawn.^[92] If a bill which has passed second reading is subsequently withdrawn, another bill with substantially the same provisions may be presented in the same session.^[93]

11.71Nevertheless, for implementation of certain provisions in the Basic Law, relevant provisions have been included in Rule 51 (Notice of Presentation of Bills) and Rule 66 of the Rules of Procedure to provide for a bill passed by the Council to be returned to the Council for reconsideration (Article 49 of the Basic Law) and for a budget or any other important bill that the Council refused to pass (Article 50 of the Basic Law) to be considered again within the same session. When the matter was reviewed by the Committee on Rules of Procedure of the First Legislative Council in 1999-2000, it was decided that there should be a mechanism to cater for the return of a bill for reconsideration and the re-submission of an Appropriation Bill on  which a decision had already been made in the same session. On 22 June 2000, the Council approved amendments to Rule 51 of the Rules of Procedure to facilitate the re-introduction of the relevant bills within the same session.^[94]

Three-reading process

11.72The term "three-reading process" refers to the stages through which a bill is considered by the Legislative Council. This process is adopted from the principal stages in the discussion of bills in the House of Commons in the U.K.^[95], and primarily comprises the following:

-First Reading (A formal stage with no substantive proceedings)

-Second Reading

-Committee Stage

-Report Stage & Third Reading (often taken together)

11.73In the HKSAR Legislature, the "three-reading process" generally refers to the proceedings which takes place in the Council and in the committee of the whole Council. In practice, the consideration of the proposals in a bill normally starts well before the formal introduction of the bill in the Council in Panels. After the bill is presented to the Council, it is considered by the House Committee and, if needed, by a Bills Committee, before the bill is resumed for second reading debate as illustrated in the legislative process in Appendix 11-E.

First Reading

11.74When the Clerk has sent to each Member a copy of a bill for presentation to the Council, the bill shall be deemed to have been presented to the Council.^[96] The short title of the bill shall be placed on the Agenda of the Council for first reading at the meeting as specified by the Member or public officer in charge of the bill.^[97] The bill is deemed to have been read the first time upon the Clerk reading the short title. No debate is allowed upon the first reading of the bill.^[98]

11.75A bill is deemed to have been ordered by the Council to be set down for second reading after the bill has been read the first time. This arrangement, which was first provided for in the 1968 Standing Orders  ^[99], is set out in Rule 53(3) of the current Rules of Procedure. This means that the first reading and the moving of the motion for second reading of a bill take place at the same Council meeting. No separate notice is required to be given by the Member or public officer in charge of the bill for moving the motion for second reading.

Second Reading

11.76After a bill has been read the first time, the Council proceeds to the second reading stage and the Member or public officer in charge of the bill is called to move the motion "That the bill be now read the second time". According to Rule 54(3) of the Rules of Procedure, the scope of debate is on the general merits and principles of the bill. In the case of a Members' bill which requires the signification of the written consent of the Chief Executive under Rule 51(4) of the Rules of Procedure, the President shall first invite the relevant public officer to confirm such signification before the Member in charge of the bill is allowed to move the motion for second reading.^[100] Such signification is recorded in the minutes of proceedings.^[101]

11.77No amendment can be made to the motion "That the bill be now read the second time". Under Rule 54(4) of the Rules of Procedure, the debate is adjourned after the Member or public officer in charge of the bill has spoken on the motion by explaining the purposes of the bill. The bill is then referred to the House Committee. However, any Member may move without notice that the debate shall not be adjourned. If the Council agrees to such a motion, the Council shall then proceed to debating the second reading of the bill.

11.78Though not explicitly provided for in the Rules of Procedure, the motion "That the second reading debate shall not be adjourned" in Rule 54(4) is not subject to a motion to adjourn moved under Rule 40 of the Rules of Procedure. Prior to 1992, when the provision which contained the current Rule 54(4) was not yet made in the Standing Orders, it had been the practice for a Member to move to adjourn the debate after the Member in charge of a bill had spoken at second reading so as to enable the bill to be referred to the then LegCo In-house to decide whether an ad hoc group should be formed to study the bill. During a major review of the committee system in 1991-1992, it was decided that all former OMELCO committees including the LegCo In-house (which then became the House Committee) and ad hoc groups (which then became Bills Committees) should be committees of the Legislative Council. To dispense with the need for moving a motion to adjourn the second reading debate on each occasion, a new provision was made to deem that the debate was adjourned and the bill referred to the House Committee unless the Council ordered otherwise upon a motion moved without notice. This provision was adopted in the Rules of Procedure and became the current Rule 54(4). In other words, Rule 54(4) is in itself a deeming provision for the adjournment of a debate in accordance with Rule 40 of the Rules of Procedure.

11.79The deeming provision for the second reading debate to be adjourned and the bill to be referred to the House Committee does not apply to Appropriation Bills. In the case of an Appropriation Bill, the Estimates containing details of the financial requirements for the services of the Government may be referred by the President to the Finance Committee for their examination before the consideration of the Appropriation Bill in committee of the whole Council.^[102] Details on the financial procedures of the Legislative Council are explained in Chapter 12.

Referral to House Committee

11.80After a bill is referred to the House Committee, an item is placed on the agenda for the next meeting of the House Committee which is usually held on the Friday following the Council meeting in the same week. To facilitate Members' discussion, the Legal Service Division of the Legislative Council Secretariat prepares a report on the bill which contains an introduction to the object, background, major provisions, legal effect and intended commencement of the bill together with a written account of the Government's consultation with the relevant Panel provided by the Panel Clerk.^[103] At the meeting of the House Committee, the Legal Adviser also advises Members his/her views on the legal and drafting aspects of the bill or whether any legal or drafting issues require further examination. It is for the House Committee to indicate whether to support the resumption of the second reading debate on the bill or whether a Bills Committee should be formed to study the bill. It may also decide to defer the decision to the next meeting pending a further report of the Legal Service Division on the relevant legal and drafting issues of the bill.^[104]

Forming of a Bills Committee

11.81The decision whether a Bills Committee is to be formed, the decision is made by the House Committee, although in most cases the Bills Committee is formed if no dissenting voice is heard. Where there is a dissenting voice, the chairman of the House Committee will invite Members to express views and put the question to a vote. When a Bills Committee is formed, the chairman of the House Committee will enquire which Members wish to join the Bills Committee by a show of hands and the Member who has the highest precedence among those Members will be responsible for calling the first meeting of the Bills Committee. A circular to invite membership is also issued to all Members except the President after the House Committee meeting. Any Member who wishes to join the Bills Committee may submit a return before the deadline notified by the clerk to the Bills Committee. ^[105]

11.82As a Bills Committee is required under Rule 76(3) of the Rules of Procedure to consist of not less than 3 members including the chairman, if the number of Members who signify membership after the deadline is less than three, the matter will be reported to the House Committee.

Queuing system for Bills Committees

11.83The House Committee decides on the timing and order of allocation of bills to a Bills Committee. In making its decision, the House Committee may take into account the number and relative priority of other bills currently referred to it under Rule 54(4) of the Rules of Procedure, and may at any time vary any such decision.^[106]

11.84According to Rule 21 of the House Rules, the maximum number of Bills Committee is limited to 16 at any one time.^[107] When more than 16 Bills Committees have been formed, a queuing system will automatically be activated. Under normal circumstances, the order of Bills Committees on the waiting list is in the order of the introduction of the relevant bills into the Council. Where a request is made by the Government for priority activation of a Bills Committee on a Government bill, the House Committee will take into account the information provided by the Government, advice given by the Legal Adviser, the work progress of the Bills Committees in operation and the relative urgency of the bill against other bills on the waiting list, etc. and determine if priority should be given to the Bills Committee concerned.^[108] If the House Committee has acceded to such a request, the order of the Bills Committees on Members' bills in the queue would not be affected as a result. The same principle also applies to the priority activation of a Members' bill. The order of Government bills in the queue would not be affected.^[109]

11.85On occasions, in view of the sometimes long queue of Bills Committees waiting to be activated, there may be requests from Members for a bill to be studied by a Panel or a subcommittee of the House Committee instead on the grounds that the bill is relatively simple but urgent and the matters to be resolved appear to be quite straight-forward. Whilst the House Committee has the discretion to decide how a bill referred to it should be considered,^[110] a request of this nature has never been acceded to. The House Committee has adhered strictly to the division of responsibilities among the various types of committees as set out in the Rules of Procedure. The mechanism of how a bill is referred to a Bills Committee by the House Committee and how a Bills Committee reports to the House Committee on its work is clearly laid down in the Rules of Procedure and supplemented by the House Rules. Any departure from the standing arrangement may give rise to confusion over the roles of different committees of the Council. The House Committee is nevertheless prepared to consider other alternatives, such as setting out the queries about the bill in writing and seeking information from

the Government through the Legal Service Division, before deciding on whether a Bills Committee should be formed.^[111]

11.86Upon the completion of the work of a Bills Committee, the slot is vacated for the activation of the next Bills Committee on the waiting list. If any Bills Committee decides to hold in abeyance the consideration of the bill, it should notify the House Committee which will decide whether the next Bills Committee in the queue should be activated. A Bills Committee held in abeyance will not normally be reactivated until a vacant slot arises to accommodate its reactivation.^[112][113] Under Rule 75(6) of the Rules of Procedure, the House Committee, after consulting the relevant Bills Committee, may decide the date for completion of consideration of the bill by the Bills Committee. It may at any time vary any such decision after consulting the Bills Committee. ^[114]

Consideration of a bill by a Bills Committee

11.87The procedure of a Bills Committee is provided in Rule 76 of the Rules of Procedure. The terms of reference of a Bills Committee are set out in Rule 76(7) which provides that a Bills Committee shall consider the general merits and principles, and the detailed provisions, of the bill allocated to it; and may also consider any amendments relevant to the bill. The House Committee may provide guidelines relating to the procedure of the Bills Committee, which are set out in the House Rules.^[115] In gist, a Bills Committee is required to act in the following manner:

(a)The scrutiny of a bill should be conducted quickly and, whenever possible, be completed within three months; the chairman should report to the House Committee should there be a need to work beyond 3 months ^[116];

(b)The chairman, who is elected at the first meeting, has the duty to monitor closely the progress of scrutiny and report to the House Committee if there is a need to hold the bill in abeyance  ^[117];

(c)The meetings of a Bills Committee shall be held in public unless the chairman otherwise orders in accordance with a decision of the committee.^[118] All matters for the decision of a Bills Committee shall be decided by a majority of the members voting ^[119];

(d)In the course of deliberation, the Bills Committee may come to a view that amendments should be made to certain clauses of or schedules to the bill. Such proposed amendments, if adopted by the majority of members of the Bills Committee, will be moved in the name of the chairman or any member as determined by the Bills Committee, on behalf of the Bills Committee;

(e)As soon as a Bills Committee has completed consideration of the bill allocated to it, it notifies the House Committee and advises it in writing of the Bills Committee's deliberations and where appropriate, the majority and minority views, and whether or not the Bills Committee supports the bill  ^[120]. Where there is urgency to resume the second reading debate on a bill and a written report cannot be provided to the House Committee before the deadline for giving notice of resumption, the chairman may make a verbal report to the House Committee and provide a written report at the earliest opportunity, e.g. at the following House Committee meeting;^[121]

(f)The deliberations of a Bills Committee may be discussed by the House Committee for the purpose of informing Members in preparation for resumption of the second reading debate on the bill in the Council. The deliberations of the Bills Committee, including any proposed amendments to the bill to be moved by its chairman or member on behalf of the Bills Committee, are not binding on any Member, whether in Council, or in a committee of the whole Council or in the House Committee.^[122]

(g)On occasions, some Members who are not members of the Bills Committee may raise questions about the Bill or inform the House Committee of their intention to move amendments to the bill concerned. If such amendments have not been considered by the Bills Committee and if time permits, the House Committee may suggest to the Bills Committee the holding of a further meeting to consider the proposed amendments before the second reading debate is resumed. However, Members are reminded that reopening of discussion on issues on which there has been full deliberation is not allowed.^[123] Members should have brought their proposed amendments to the Bills Committee for discussion at an early stage to facilitate due consideration of the Bill and any proposed amendments to it by the Bills Committee.

(h)After discussion at the House Committee on its deliberations, a Bills Committee shall submit a report to the Council and arrange for it to be presented at the same Council meeting at which the resumption of the second reading debate on the bill takes place.^[124] The chairman or any member of the Bills Committee may, with the permission of the President, address the Council on the report at the commencement of the resumption of the second reading debate on the bill and he will be the first Member to speak at the resumed debate.^[125] However, if the purpose of the resumption of the second reading debate on a bill is for making an announcement for the withdrawal of the bill, the chairman or any member of the Bills Committee concerned may, with the permission of the President, address the Council at the time when the report is laid on the Table of the Council.^[126] The address to the Council is not subject to the 15-minute restriction on speaking time;^[127]

(i)In the event that there is no indication that the second reading debate on a bill will resume within a reasonable time after completion of the Bills Committee's work, the Bills Committee may decide to table a written report in the Council. The chairman or any member of the Bills Committee may seek the President's permission to address the Council under Rule 21(3) of the Rules of Procedure (Presentation of Papers);^[128] and

(j)The Bills Committee will be dissolved as soon as the bill considered by it has passed through the Council or when it is so decided by the House Committee.^[129]

Notice for resumption of the second reading debate on a bill

11.88The discussion at the House Committee upon the completion of the work of a Bills Committee is on whether the bill is ready for resumption of further proceedings in the Council. The decision of the House Committee is therefore not on whether the bill is to be supported, but rather on whether there is support for the second reading debate on the bill to be resumed at a Council meeting as requested by the Member or public officer in charge of the bill. Rule 54(5) of the Rules of Procedure has provided a mechanism and timeframe to facilitate the seeking of the support of the House Committee before the notice for the resumption of the second reading debate may be given.^[130] Nevertheless, in terms of formal procedure, the Member or public officer in charge of the bill may at any time give notice to the Clerk for the resumption of the second reading debate by giving not less than 12 clear days' notice before the day on which the debate is to be resumed, or less than 12 clear days if the President in his discretion dispenses with such notice.^[131]

11.89Under Rule 54(5) of the Rules of Procedure, the resumption of second reading debate may not take place earlier than 9 clear days after the meeting of the House Committee. This stipulation should be read against the background that the Council meets on Wednesdays and the House Committee meets on Friday to consider business to be dealt with at a Council meeting. When a Bills Committee has reported its deliberations to the House Committee on a Friday, the earliest date the second reading debate on the bill can be resumed is the second Wednesday after the meeting of the House Committee. Rule 54(5)(c) does provide the flexibility for the House Committee to recommend that the second reading debate on the bill be resumed at the next meeting of the Council, i.e. the Wednesday immediately after the House Committee, provided that permission is given by the President and notice is given no later than 2 clear days after the House Committee meeting ^[132].

11.90If the decision of the House Committee is to recommend a period longer than 9 clear days for resumption of the second reading debate, Rule 54(5)(b) requires that resumption shall not take place earlier than 12 clear days after that House Committee meeting. In other words, the resumption may only take place, at the earliest, in the third week after the House Committee meeting.

11.91There is also a requirement in Rule 54(5) of the Rules of Procedure that the Member or public officer in charge of a bill should consult the chairman of the House Committee before he gives notice to the Clerk for the resumption of the second reading debate. As it is an important step to confirm that the bill is ready for further proceedings in the Council, a new Rule 54(5A) was added in 2003 to enable the Member or public officer in charge of the bill to consult the deputy chairman of the House Committee in the event that the chairman of the House Committee is not available for consultation because of his absence from Hong Kong or for other reasons.

Resumption of the second reading debate on a bill

11.92As provided in Rule 54(7) of the Rules of Procedure, the Member making a report of a Bills Committee (usually its chairman) is the first Member to be invited by the President to speak at the resumed debate, followed by other Members in the manner described in Chapter 8 ^[133]. The debate is on the general merits and principles of the bill. After all Members who wish to speak have spoken, the President will invite the Member or public officer in charge of the bill to give his reply. The President will then put the question "That the bill be read the second time" to vote. If the question is negatived, no further proceedings shall be taken on that bill.^[134] If the question on second reading is agreed to by the Council, the bill stands committed to a committee of the whole Council unless ordered otherwise by the Council or directed by the President under Rule 55 of the Rules of Procedure for the bill to be committed to a select committee.

11.93If the resumption of the second reading debate on a bill is for the withdrawal or postponement of the bill, the Member or public officer in charge of the bill should state such as the purpose in the notice for the resumption and he will be invited by the President to speak at the beginning of the resumed debate to make such an announcement and any address he may wish to make in relation to the withdrawal or postponement.^[135] No debate may arise on such an address. No other Member will be invited to speak after the Member or public officer in charge of the bill has announced the withdrawal or postponement of the bill.^[136]

Committee Stage - committal of bills to a committee of the whole Council or to a select committee

11.94It is a standing practice in the Hong Kong Legislature for a bill, after it has been read the second time, to be committed to a committee of the whole Council although there is provision in Rule 55 of the Rules of Procedure to enable the bill to be committed to a select committee. It has also been a practice since 1858 that the committee of the whole Council (which comprises the same membership of the Council) will meet immediately after a bill has been read the second time so that the committee stage of a bill takes place immediately after the second reading stage. The President, who is also the Chairman of the committee of the whole Council, will make an announcement that the Council resolves itself into a committee of whole Council or resumes as Council.

11.95There are provisions in Rule 55 of the Rules of Procedure for the Council, upon a motion moved without notice by a Member, to commit a bill to a select committee, and for the President to direct a bill to be committed to a select committee if he is of the opinion that the bill would specially benefit or affect some particular person or association or corporate body. The provisions in Rule 55 have been adopted from previous Standing Orders which reflected the position when standing committees and select committees were the only forms of committees to undertake the detailed study of a bill. ^[137] There was no longer any need for bills to be referred to a select committee after the OMELCO ad hoc groups came into existence in early 1970s and Bills Committees became formal committees of the Council in 1992. Nevertheless the flexibility to commit a bill to a select committee has been preserved to provide such an alternative in the event that the Council or the President considers it appropriate to do so.

11.96Any committee of the whole Council or select committee to which a bill is committed shall not discuss the principles of the bill but only its detailed provisions, i.e. the clauses and schedules. Such committee has the power to make amendments to the clauses and schedules including adding new clauses and new schedules provided that they are relevant to the subject matter of the bill.^[138]

Proceedings of a committee of the whole Council

11.97In a committee of the whole Council, the Chairman shall propose an ancillary motion ^[139] "That the following clauses stand part of the bill" and shall direct the Clerk to call the numbers of the clauses. When the number of any clause (or the numbers of a group of clauses) is called, the question that that clause (or group of clauses) stand part of the bill shall be deemed to have been proposed.^[140] Where an amendment is to be proposed to a clause, the mover of the amendment shall move the amendment after the motion to order that that clause to stand part of the bill has been proposed. The same also applies to amendments to schedules. Any Member, including the Member or public officer in charge of a bill, may move amendments to that bill provided that Rule 57 of the Rules of Procedure is complied with. Details on amendments to bills are further explained in paragraphs 11.112 to 11.133 below.

11.98In committee of the whole Council, the order in the consideration of the text of a bill is basically as follows:

-Clauses

-New clauses

-Schedules

-New schedules

-Preamble (if any)

-Title of the bill (if any amendment is made necessary by an amendment to the bill)

11.99Strictly speaking, each clause should be called by its number and be dealt with under a separate ancillary motion before moving to the next clause. However, the Chairman may group clauses and interdependent amendments under the ancillary motion "That the following clauses stand part of the bill" and allow a single discussion on these clauses and amendments to save time and to avoid repetition of arguments.^[141] The Chairman may also change the order of consideration of new clauses and schedules if he considers it necessary or more logical to do so. It has been a practice for those clauses to which no amendment is proposed to be dealt with before other clauses. After the number(s) of the clause(s) has been called, i.e. the question is deemed to have been proposed, Members who have given notice to amend the clause(s) are invited to move the amendments in the order set out in the Agenda, as explained below. Members and designated public officers are allowed to speak more than once on the specific clause(s) and amendments ^[142] provided that they do not persist in irrelevant or tedious repetition of their own or other Members' arguments in the discussion ^[143]. When no other Member wishes to speak or, in the case of a prolonged discussion and for which a time order has been made by the Chairman over the duration of committee stage  ^[144], at the ending time of the discussion the question on the ancillary motion is put to vote.

11.100If no amendment to the clauses under the ancillary motion "That the following clauses stand part of the bill" is passed by the committee of the whole Council, the Chairman shall put the question to vote. In the event that a clause is amended, the Clerk is then directed to call the number of the clause again with the words "as amended" added after the clause number. The question "That the clause as amended stand part of the bill" is deemed to have been proposed.^[145] If the question, whether referring to the original clause or the clause as amended, is passed, the clause (or clause as amended) will become part of the bill. If negatived, the clause is taken out of the bill and will not form part of the bill.^[146]

11.101New clauses are dealt with after all original clauses, whether amended or not, have been disposed of.^[147] Amendments may be moved to new clauses but such amendments may only be moved if the new clauses have been read a second time. In a committee of the whole Council, when the section heading of a new clause is read by the Clerk the clause is deemed to have been read a first time. The Chairman shall then propose the question "That the clause be read a second time". If this is agreed to, amendment may then be proposed to the new clause. A joint debate may be ordered by the Chairman to discuss both the new clause and the proposed amendments. The amendments, if any, are then put to vote. The final question is "That the clause (or the clause as amended) be added to the bill".^[148] A proposed new clause may be withdrawn by the mover at any time before it is proposed or, if proposed, by leave of the committee with no dissenting voice from any Member before the question on it is put to vote.

11.102Schedules are dealt with after all clauses and new clauses are disposed of unless a decision has been made by the Chairman to change the order of consideration under Rule 58(2) of the Rules of Procedure to facilitate a more efficient and effective discussion on interdependent clauses, schedules and amendments. The process for dealing with a schedule is the same as that for a clause, and the process for dealing with a new schedule is the same as that for a new clause.^[149] A proposed new schedule may be withdrawn by the mover at any time before it is proposed or, if already proposed, by leave of the committee with no dissenting voice from any Member before the question on it is put to vote.

11.103If there is a preamble to the bill, the consideration of the preamble will take place after all clauses and schedules and new clauses and new schedules have been dealt with. The question "That this be the preamble to the bill" will be proposed. Only an amendment which is necessitated by a previous amendment to the bill is allowed to be proposed to the preamble. After the amendment is disposed of, the question is then put to vote.^[150]

11.104Similar to the preamble, an amendment to the title of the bill is allowed only if it is made necessary by an amendment to the effective provisions of the bill. Such an amendment is made at the conclusion of the proceedings on the bill. There is no need to propose any question to make the title (as amended) stand part of the bill. No question is put upon the enacting formula.^[151] The Law Draftsman may make changes to reference to the year or to any number in the title by which the bill is to be cited when it becomes law.^[152]

Report of the bill to the Council

11.105When all proceedings upon the bill have been concluded in the committee of the whole Council, the Council resumes. Rule 58(12) of the Rules of Procedure provides that a Member shall report the bill to the Council with or without amendment as the case may be. Where such a report has been made Rule 59 provides that the Council shall be deemed to have ordered the bill to be set down for third reading and the order is so recorded in the minutes of proceedings. No notice for third reading is required. The long-standing practice of the Council is that where a bill is committed to a committee of the whole Council, the Chairman will make the announcement that all proceedings upon the bill have been completed. No Member is called to report on the bill. The Council then resumes, and the President, who also presides as Chairman of the committee of the whole Council, announces that the Council now proceeds to the third reading stage of the bill.

11.106In the event that a bill is committed to a select committee, the select committee should follow the procedure set out in Rule 79 of the Rules of Procedure and go through the bill in the same manner as a committee of the whole Council as provided in Rule 58 of the Rules of Procedure.^[153] Any amendment approved by the select committee should be reflected in the whole text of the bill as amended to be printed and attached to the report of the select committee.^[154] The report should be tabled in Council  ^[155] and a motion is to be moved by the chairman of the select committee that the report of the select committee on the bill be adopted.^[156] If that motion is agreed to without amendment, the Council shall be deemed to have ordered the bill to be set down for third reading and the order is so recorded in the minutes of proceedings. No notice for third reading is required.^[157] However, any Member may propose an amendment to add at the end of the motion the words "subject to the recommittal of the bill (either wholly or in part) to a committee of the whole Council. This motion, if agreed to by the Council, has the effect that the bill now stands recommitted to the committee of the whole Council, and the Council will immediately resolve itself into a committee of the whole Council to consider the bill.^[158]

Recommittal of a bill

11.107If the whole of a bill is recommitted to a committee of the whole Council after reporting by a select committee, the committee of the whole Council shall go through the bill in accordance with Rule 58 of the Rules of Procedure, i.e. the procedure described in paragraphs 11.97 to 11.104 above. If the recommittal is only for part of the bill or any proposed new clauses or schedules, the committee of the whole Council shall consider only the matter so recommitted unless the President considers it necessary or desirable for the whole bill to be recommitted to the committee of the whole Council.^[159]

11.108When all proceedings on the recommitted bill in committee of the whole Council have been completed, the Council shall resume and the Member or public officer in charge of the bill reports the bill, as amended (or as not amended) on recommittal, to the Council.^[160] The Council shall then proceed to the third reading of the bill unless the Member or public officer in charge of the bill states that he wishes the third reading to be postponed.^[161]

Third reading

11.109At the start of the third reading stage, the Member or public officer in charge of the bill is called upon to move the motion "That the bill be read the third time and do pass". The President then proposes the question on the motion and a debate will follow except in the case of an Appropriation Bill where the motion for the third reading of the Bill is voted on without amendment or debate.

11.110Whilst debate on the second reading of a bill is on the general merits and principles of the bill and debates at committee stage are on the details of the bill, debate on the motion for the third reading of a bill is confined to the contents of the bill as amended, if that is the case. No amendment may be moved to the motion.^[162] However, drafting amendments to the bill to correct errors or oversights may be permitted by the President if it is considered that such errors or oversights are not of a technical nature which can usually be rectified by the Law Draftsman after the bill is enacted.^[163] Such amendment ^[164] should be made before the question for the third reading of the bill is put by the President. No amendments of a material character shall be proposed.^[165]

11.111When a motion for the third reading of a bill has been agreed to, the Clerk will read the short title of the bill and write at the end of the bill the words "Passed by the Legislative Council of the Hong Kong Special Administrative Region this day" giving the date.^[166] If the motion is negatived no further proceedings are taken on that bill.^[167] A copy of every bill passed by the Council, certified as a true copy by the Clerk, is submitted to the Chief Executive for his signature.^[168]

Amendments to bills

Notice of amendments to bills

11.112Notice is required for proposing amendments to bills. Notice of amendments to a bill should be given not less than 7 clear days before the day on which the bill is to be considered in committee. No amendment without such notice may be moved unless with the leave of the Chairman, i.e. the President.^[169] For new clauses and new schedules, as the notice requirement is also not less than 7 clear days before they are considered in committee, the President may allow shorter notice for amendments to new clauses and schedules.^[170]

Form of amendments to bills

11.113The Hong Kong Legislature follows the general practice in parliaments of common law jurisdictions in making amendments to bills. In the notices of amendments, the proposed amendments are set out in an order that follows the order of the clauses of the bill that are proposed to be amended. Similar to making amendments to a motion ^[171], a Member may delete one or more words, insert one or more words in a clause or schedule, or both.^[172] Moreover, a Member may add new clauses and schedules to the bill.^[173] As a general rule, an amendment to leave out words in order to insert other words takes precedence over an amendment merely to leave out words; and an amendment to leave out words take precedence over an amendment to insert other words or to add new clauses or schedules.^[174] If two or more amendments are proposed to the same clause, the principle in Rule 34(5) of the Rules of Procedure is followed, i.e. in the order in which the amendments relate to the text of the clause, or in case of doubt in the order decided by the Chairman. The Chairman will also give regard to Rule 30(4) of the Rules of Procedure for determining the order of amendments which are substantially the same, i.e. the Member who gave the earliest notice which has not been withdrawn shall move the amendment, except that precedence is given to the amendment proposed by the Member or public officer in charge of the bill. Although it is the practice in some parliaments, such as UK and Canada, not to allow a proposal to delete an entire clause as the same effect can be achieved by voting against the inclusion of the clause in the bill, the practice in the Hong Kong Legislature is that such a proposed amendment is allowed.^[175] The deleting of an entire clause without substitution is given precedence over other proposed amendments that target the text of the clause.

Restrictions

11.114Any Member may move amendments to a bill. The difference of opinion between the Legislature and the Executive Authorities over the applicability of Article 74 of the Basic Law to amendments to bills has been discussed in paragraphs 10.31 - 10.35 of Chapter 10. In gist, the position held by the Legislature is that it is inappropriate to extend the coverage of Article 74 to Members' amendments to government bills. The legislative process set out in the Rules of Procedure allows the public office in charge of a bill to withdraw the bill at the beginning of the third reading stage if he finds it difficult to accept the bill in its amended form. The procedure provides a means for the Government to decide the final form of the proposed legislation introduced by it. Nevertheless, the Legislature has adopted the restrictions which applied to amendments to bills in the pre-1977 Legislature  ^[176] in its Rules of Procedure. These restrictions, which include the upholding of the principle that the financial initiative should rest with the Government, are self-imposed restrictions and they are set out in Rule 57 of the Rules of Procedure. The President, who is also the Chairman of the committee of the whole Council, relies on this Rule as well as the principles established or evolved over the years in relation to this Rule to determine the admissibility of any proposed amendments.

Relevance to the bill and to the clause

11.115As mentioned in paragraph 11.96 above, a committee of the whole Council has the power to make amendments to a bill provided that the amendments, including new clauses and new schedules are relevant to the subject matter of the bill.^[177] Rule 57(4)(a) provides that an amendment must be relevant to the subject matter of the bill and to the subject matter of the clause to which it relates. The "subject matter" determines the scope. An amendment is out of order if it falls beyond or is outside the scope of the bill. If an amendment is within the scope of the bill but is not relevant to the clause under consideration, it may be moved as a new clause.^[178]

11.116The approach adopted by the Presidents of the HKSAR Legislature in determining the subject matter of a bill is to ascertain the purposes of the bill, by information available from relevant materials such as the long title and the explanatory memorandum of the bill, the Legislative Council Brief on the bill as well as any submissions of the Government on proposed amendments and comments on those submissions given by the Members proposing the amendments.^[179] In her ruling on the Provision of Municipal Services (Reorganization) Bill dated 29 November 1999, President Rita FAN took into account the long title of the Bill concerned and the legal effect of the relevant clauses in the Bill to decide whether the proposed amendments went to the fundamental principles of the Bill rather then its details.

11.117Another example is the approach President Rita FAN adopted in forming her view on the admissibility of the amendments proposed by three Members, namely Mr CHENG Kai-nam, Mr Albert HO and Mr LEE Wing-tat, to the Building Management (Amendment) Bill 2000. The President referred to the purpose of the Bill, which was "to amend the Building Management Ordinance to facilitate better management of buildings" as the subject matter of the Bill. In making her ruling, she took into account the views submitted by the Secretary for Home Affairs and the three Members. Her concern was a purely procedural one, i.e. if an issue raised by a proposed amendment was a substantially new issue which was not related to the purpose of the Bill, she would regard it as not relevant to the subject matter of the Bill within the meaning of Rule 57(4)(a) of the Rules of Procedure. She would not consider the merits of the proposed amendment when determining its admissibility. Her ruling is attached at Appendix 11-F.

11.118In July 2013, Ms Cyd HO sought to amend the Hong Kong Arts Development Council (Amendment) Bill 2013 by providing a meaning of the term "individual" in the proposed new section of the Bill for the purpose of prescribing certain eligibility criteria for the individuals to be specified by the Chief Executive to take part in the nomination of representatives of the respective arts interests. The relevance of the Member's proposed amendment to the bill was challenged by the Government. In his ruling made on 8 July 2013, President Jasper TSANG explained that in determining whether an amendment is relevant to the subject matter of the bill, he should consider whether the amendment would have the effect of altering the subject matter (or the fundamental principles) of the bill or merely amending its details. He considered that an amendment which seeks to impose a condition through the provision of a definition or an interpretation in the bill could not be regarded as not relevant to the subject matter of the bill. The effect of the amendment would be a matter of merits which he should not consider. As Ms HO's proposed amendment sought to provide the details on the implementation of the proposal in the Bill and would not take away or fundamentally alter the Chief Executive's power to specify the individuals under the Ordinance, the President ruled the amendment admissible.

11.119There are also a few principles which the Presidents have established for considering whether a proposed amendment is relevant to the subject matter of a bill:

(a)While the long title and explanatory memorandum of a bill provide useful reference for the President to consider the subject matter of the bill, they are not determinative. Where necessary, other relevant factors may be referred to, but the extent to which such information, such as that contained in a Legislative Council Brief, is relevant or useful would depend on the facts of each case;^{[180]  [181]}

(b)The heading of a clause does not determine the subject matter of the bill; it is the substance of the clause that should be looked at;^[182] and

(c)In considering the relevance of an amendment to the subject matter of a bill, the purported goal of the proposer of the amendment is not considered^[183].

Consistency with the clause agreed to and previous decision of the committee

11.120An amendment must not be inconsistent with any clause already agreed to or with any previous decision of the committee upon the bill.^[184] Whilst a proposed amendment may have been put on the Agenda together with other proposed amendments to the same clause, the Chairman will not allow it to be moved if another amendment has been agreed to by the committee and this amendment, if passed, will create inconsistency or become contrary to the amended clause.^[185] An amendment which is governed by or dependent upon another amendment which has already been negatived by the committee also cannot be moved.^[186]

Amendment making a clause unintelligible

11.121An amendment must not be worded in such a way that will make the clause which it proposes to amend unintelligible or ungrammatical.^[187] An example can be found in the proposed amendments to the Housing (Amendment) Bill 2007. Four Members had given notice to amend the Bill, the proposed amendments of two of them were found to be out of order under Rule 57(4)(c) of the Rules of Procedure. One was due to inconsistencies that would be created between the Chinese and English texts of the Bill; while the other was due to the adding of the proposed amendments to the wrong subsection, hence making the subsection, if amended, incomprehensible. President Rita FAN, in her ruling, noted that the inconsistencies in the former amendment were rectified by the Member in accordance with the normal practice for processing committee stage amendments by the Secretariat and so ruled the amendment admissible. As for the latter proposed amendment, the President noted that the intended effect of the proposed amendment was clear from the terms of the proposed provisions, and the problem identified was purely technical. She therefore directed the Secretariat to inform the Member and allowed him to submit a revised version, containing only textual modifications to address the problem identified, with the requisite notice waived.^[188]

Amendment considered by the Chairman frivolous or meaningless

11.122An amendment which is in the opinion of the Chairman frivolous or meaningless may not be moved.^[189] This restriction is set out in Rule 57(4)(d) of the Rules of Procedure. The application of this Rule has been evolving since May 2012 when President Jasper TSANG was required for the first time to consider the admissibility of some 720 amendments which were drafted in a sequentially varying manner ^[190]. The President noted that it was not clear in the Rules of Procedure whether Rule 57(4)(d) also applied to "a series of amendments" which when taken together could be regarded as frivolous. He noted, however, in an example of other legislatures that where a certain rule was to apply also to "a series of motions", the words "a motion" and "a series of motions" were both stated in the Standing Order. In the absence of clear indication that he could apply Rule 57(4)(d) to "a series of amendments", he ruled the 720 amendments admissible. He also did not consider it right for him to invoke the power given to him under Rule 92 of the Rules of Procedure  ^[191] to extend the application of the Rule.^[192]

11.123The matter was subsequently referred to the Committee on Rules of Procedure. In addition to studying the matter so referred to, the Committee on Rules of Procedure of the Fourth and Fifth Legislative Council also studied whether the President should be conferred with the power to select amendments for debate and voting at the committee stage on a bill. Members were asked to consult their respective parties and political groups on these matters. Up to this date, no consensus has been reached among members of the Committee on any proposals relating to these issues. The Committee concluded that there was no need to study the subject matter any further at this stage. Under the circumstances, how Rule 57(4)(d) of the Rules of Procedure is to be applied continues to be a matter for the President to decide in accordance with the existing rules and guided by principles established by the President's previous rulings.

11.124In June 2012, in relation to 167 amendments to be proposed to a government resolution to effect a proposed reorganization of the Government Secretariat, President Jasper TSANG noted that 59 of them were sequential  amendments. He expressed the view that even if each of these 59 amendments taken individually might serve a particular purpose, it was obvious that when the 59 amendments were taken together they could be regarded as frivolous and might have the effect of prolonging Council proceedings more than was necessary for providing a fair choice for Members. Nevertheless he ruled the 59 amendments admissible as it was not clear whether the restriction against a frivolous or meaningless amendments under Rule 57(4)(d) of the Rules of Procedure could also be applied to a series of amendments to motions.^[193]

11.125In April 2013, in considering the 740 proposed amendments to the Appropriation Bill 2013, President Jasper TSANG noted that a substantial number of amendments proposed by three Members fell into a series in which each sought to reduce the appropriation to a particular Head of Expenditure by a sequentially varying amount. On this occasion, the government submitted that the meaning of "an amendment" in Rule 57(4)(d) of the Rules of Procedure should include "a series of amendments" and those amendments should be ruled out as frivolous or meaningless. In his ruling made on 22  April 2013, the President explained that in determining whether amendments proposed in such a manner fall within the meaning of "frivolous" and "meaningless" under Rule 57(4)(d), he needed to consider:

(a)whether the passage of any one such amendment in a series would serve any substantive purpose; and

(b)whether the passage of one such amendment vis-à-vis another in the same series would make any material difference.

11.126As it appeared to the President that the passage of any one of the amendments in question would achieve a substantive result and an effect materially different from that of another in the same series, he could not consider them frivolous or meaningless either taken individually or collectively. As to whether the admission of these sequential amendments would have the demonstrated effect of prolonging the legislative process to the extent of preventing the Council from properly exercising and discharging its powers and functions under the Basic Law, the President was not satisfied that the admission of these sequential amendments would have such demonstrable effect. See President's ruling at Appendix 11-G.

11.127In 2014, again in the context of the Appropriation Bill, the President noted that among the 1 507 amendments proposed by Mr LEUNG Kwok-hung, 909 were grouped into 116 sequence each of which comprised 3 or more amendments seeking to reduce the appropriation to a Head of Expenditure for specific purpose by sequentially varying amounts. He also noted the experience of the Council in debating the sequential amendments to the 2013 Appropriation Bill, for which 31 hours of the Council's time were used. The President considered that there was hardly any explanation on the difference between the successive proposals in each group of sequential amendments or any exchange of views among Members on the sequential amendments. He was therefore convinced that sequential amendments did not serve the purpose of providing fair and genuine choices for Members, but would have the demonstrable effect of prolonging the legislative process to the extent of preventing the Council from properly exercising and discharging its powers and functions under the Basic Law.

11.128In his ruling dated 17 April 2014, the President stated that sequential amendments infringed Rule 57(4)(d) of the Rules of Procedure for being frivolous or meaningless when each of them was considered in the context of the other amendments also being proposed by the same Member in respect of the same head or subhead of expenditure. He therefore ruled the 909 amendments in 116 sequences proposed by Mr LEUNG Kwok-hung inadmissible. However, he noted the material difference in the proposed amounts to be reduced in 26 pairs of amendments proposed by Mr LEUNG and opined that these amendments might plausibly be considered as providing fair and genuine choices for Members and so allowed these amendments to be moved. The President also agreed to allow no more than two out of each of the 116 sequences to be moved in committee. See President's ruling at Appendix 11-H.

11.129In 2015, the number of amendments to the Appropriation Bill 2015 rose to 3 904 with 3 280 coming in 1 640 pairs also proposed by Mr LEUNG Kwok-hung seeking to reduce the appropriation to a Head of Expenditure by a certain amount (as represented by using the number of months as the multiplier). In his ruling on 20 April 2015, President Jasper TSANG pointed out that Mr LEUNG had evidently taken advantage of his admission of the amendments in pair to the 2014 Appropriation Bill and proposed voluminous amendments of the same form to the 2015 Appropriation Bill with the avowed intent to filibuster. Mr TSANG reiterated that as President, one of his constitutional powers and functions was to exercise and discharge under Article 72 of the Basic Law to preside over meetings to ensure the orderly, efficient and fair disposition of the Council's business. From the experience of the Council in 2014 and his assessment of the considerable time to complete the proceedings of the 3 280 amendments, he had to strike a proper balance between respecting the right of individual Members to propose amendments and ensuring efficient conduct of the Council as a law-making institution. He therefore ruled that the 3 280 proposed amendments failed to comply with Rule 57(4)(d) for being frivolous and meaningless, and could not be moved. See President's ruling at Appendix 11-I.

Language of amendments

11.130Where an amendment is proposed to be moved to a bill presented in both official languages the amendment shall be made to the text in each language unless it is an amendment that clearly affects the text in one language only. But an amendment which creates a conflict or discrepancy between the text in one language and the text in the other may not be moved.^[194]

Amendment dependent on another amendment

11.131If an amendment refers to, or is not intelligible without, a subsequent amendment or schedule, it is not allowed to be moved unless the notice of the subsequent amendment or schedule has been given. It is only when the notices of both the first and subsequent amendments or schedule are given that the series of amendments are intelligible as a whole.^[195] One example is the amendments proposed by Mr Ambrose CHEUNG to the Provision of Municipal Services (Reorganization) Bill. Mr CHEUNG's amendments aimed to put in place a one-Council-one-Department arrangement and they included provisions relating to the composition, functions and powers of the Council as well as the operation of the certain institutions which, in the opinion of Mr CHEUNG, could separately be dealt with even if the one-Council-one-Department was ruled to be outside the scope of the Bill. In her ruling on 29 November 1999, the President noted that some of the proposed amendments were considered by the Government as unintelligible or meaningless due to the lack of definitions. She also noted the Member's explanation that these gaps in the Bill could be dealt with by the Chief Executive in Council making consequential, transitional and saving provisions under the Bill. The President did not accept this explanation and therefore ruled some of the amendment unintelligible under Rule 57(4)(c).^[196]

Amendment with charging effect

11.132The restriction in Rule 57(6) of the Rules of Procedure is the same as that governs the moving of motions or amendments in Rule 31(1), i.e. for motions and amendments with charging effect. Rule 57(6) reads as follows:

"An amendment, the object or effect of which may, in the opinion of the President or Chairman, be to dispose of or charge any part of the revenue or other public moneys of Hong Kong shall be proposed only by –

(a)the Chief Executive; or

(b)a designated public officer; or

(c)a Member, if the Chief executive consents in writing to the proposal."

11.133As explained in Chapter 10 ^[197], the retention of this rule in the Rules of Procedure is to uphold the constitutional principle that any proposal with charging effect should only be introduced on the initiative or with the authorization of the Government. The principles which apply to Rule 31(1) of the Rules of Procedure in determining whether there is a charging effect have in fact been developed through the application of Rule 57(6). The guiding factors to which the President often referred include: whether the proposed amendment will impose a new and distinct statutory function which is not provided for in the existing law; whether the proposal will require the spending of an amount of public money that is not nominal or negligible; and whether the proposal will have the effect of forgoing revenue which may be collected under statutory authority. Detailed explanations on these guiding factors and examples to illustrate the application of the principles are given in Chapter 10.^[198]

Withdrawal or postponement of bills

11.134The Member or public officer in charge of a bill may withdraw or postpone the bill at any time before the bill is presented to the Council. It should be noted that when the copy of the bill with its explanatory memorandum is issued by the Clerk to every Member, the bill is deemed to have been presented to the Council.^[199] After a bill has been presented to the Council, the Member or public officer in charge of the bill may withdraw or postpone the bill by an announcement made in the Council at the beginning of the proceedings for its second or third reading.^[200]

11.135In the event that the decision to withdraw the bill is made after the motion for the second reading of the bill has been moved and the debate on it has been adjourned, the Member or public officer in charge of the bill may give notice to the Clerk stating that the purpose of resumption of the second reading debate is for making such an announcement. He may address the Council on matters relevant to the withdrawal when he makes the announcement.^[201]

11.136Another occasion when the Member or public officer in charge of the bill may withdraw or postpone the bill is at the beginning of the proceedings for third reading. When the committee of the whole Council has completed its proceedings on the bill, the Council resumes and proceeds to third reading stage. In the event that the Member or public officer in charge of the bill decides to withdraw or postpone the bill, the announcement should be made when he is called to speak. As no notice for third reading is needed, the Member or public officer should inform the President in advance of such an intention.^[202]

11.137One example of the withdrawal of a bill at third reading is the Employment (Amendment) Bill 1994 withdrawn by the Secretary for Education and Manpower at the Council sitting on 14 December 1994, following the passage of an amendment moved by Mr LAU Chin-shek during the committee stage of the Bill. ^[203] Another example of withdrawal at third reading is the Legal Practitioners (Amendment) Bill 1996 considered at the Council sitting on 25 June 1997. Ms Margaret NG gave notice to move amendments to clause 3 of the Bill to stipulate mandatory membership for all notaries public in the Hong Kong Society of Notaries in order to enable the Society to continue to monitor the professional standards of notaries public and for its position to be in line with those of the Bar and the Law Society in Hong Kong, and the Scriveners Company in England. The Attorney General, who was the public officer in charge of the Bill, objected to Ms NG's amendments as the Government considered them unjustified and unnecessary since the Society had no regulatory role under the Bill and the requirement would be vulnerable to legal challenge as restricting the freedom of association protected by the International Covenant on Civil and Political Rights. At Committee Stage, Ms NG's amendments were passed and became part of the Bill. When the Council resumed after committee stage, the Attorney General announced that the Government could not accept the amendments on membership requirement and therefore considered that it had no option but to withdraw the Bill. The President announced that no further proceedings on the Bill would be taken following Government's withdrawal of it.^[204]

Signing of the bill by the Chief Executive and Promulgation

11.138When a bill has been passed by the Council, the Clerk will arrange for a certified true copy of the bill to be forwarded to the Chief Executive for his signature. Under Article 48(3) of the Basic Law, the Chief Executive shall exercise the power and function to sign the bills passed by the Legislative Council and promulgate laws. Under Article 64 of the Basic Law, the Government of the HKSAR must implement the laws passed by the Council and already in force. Under Article 49 of the Basic Law if the Chief Executive considers that a bill passed by the Council is not compatible with the overall interests of the Region, he may return it to the Council within three months for reconsideration. Details of the procedure for the reconsideration of bills are provided in Chapter 5.^[205]

Subsidiary legislation

Nature of subsidiary legislation

11.139The supporting technical details of a piece of legislation are often set out in subsidiary legislation in the form of proclamation, rule, regulation, order, resolution, notice, rule of court, bylaw or other instruments. Subsidiary legislation is made under or by virtue of an ordinance and is generally subject to the scrutiny of the Council. The procedures governing the making of subsidiary legislation are set out in Part V of the Interpretation and General Clauses Ordinance (Cap. 1). For subsidiary legislation made under section 34 of Cap.1, the authority which has been given the power to make such subsidiary legislation under an Ordinance is required to publish the subsidiary legislation in the Gazette and table it at a meeting of the Council. If the subsidiary legislation is not amended (which by definition provided by section 3 of Cap. 1 includes repealed) by the Legislative Council within the scrutiny period specified in section 34(2) of Cap. 1^[206], the subsidiary legislation will continue to operate in accordance with its content as published in the Gazette. This is generally known as the negative vetting procedure. For subsidiary legislation made under section 35 of Cap.1, which requires the Council's approval in the form of a proposed resolution, the Council may amend the whole or any part of the subsidiary legislation. This is generally known as the positive vetting procedure. Details on how subsidiary legislation is handled in Council have been explained in previous chapters.^[207]

Consultation with Panels

11.140Subsidiary legislation may contain details which are controversial, e.g. fees and charges which are usually set out in the schedule to an ordinance and which may be amended in the form of subsidiary legislation. Where it is considered that an item of proposed subsidiary legislation may attract public interest, it is common practice that the legislative proposal is first brought to the relevant Panel for an initial discussion. Public hearings may be conducted on it. The Panel, having considered public views, will put forward its views to the Government or relevant authorities including whether the proposed subsidiary legislation is ready for presentation to the Council.

11.141If the Panel considers that the details of the proposed subsidiary legislation are complex in nature or the subject matter is highly controversial, it may make a report to the House Committee and recommend that a subcommittee of the House Committee should be formed to study the proposed subsidiary legislation before it is published in the Gazette or debated under a motion to approve in the Council.^[208] Under Rule 75(10)(c) of the Rules of Procedure, the House Committee shall decide the manner of consideration of any draft of subsidiary legislation or instrument. If the recommendation is accepted by the House Committee and a subcommittee is formed, any Member (except the President) may join the subcommittee. As a matter of convention, the Government will not present any proposed subsidiary legislation for consideration by the Council until the subcommittee has completed its work and has reported back to the House Committee. The deliberations of the subcommittee are discussed by the House Committee which may follow up with the Government on any recommendation the subcommittee has made in its report.

Consideration by the House Committee

11.142Rule 75(10) of the Rules of Procedure provides the House Committee with the function to decide how subsidiary legislation or an instrument is to be considered. Where a detailed study of an item of subsidiary legislation is required, a subcommittee under the House Committee is usually formed. This arrangement applies to subsidiary legislation subject to the positive or negative vetting procedure. On occasions, a subcommittee may be considered necessary to study an item of subsidiary legislation before it is published in the Gazette or presented to the Council. The proposal to set up a subcommittee may be made by a Panel, a Bills Committee ^[209] or an individual Member ^[210], in response to the Government's request ^[211].

11.143For subsidiary legislation made under section 35 of Cap. 1 and subject to the positive vetting procedure, the House Committee may request the Government to withdraw the notice of the proposed resolution on the relevant subsidiary legislation to allow more time for the detailed study of the resolution.^[212] For subsidiary legislation made under section 34 of Cap. 1 and subject to the negative vetting procedure, the subcommittee concerned needs to work within the scrutiny period but may seek extension of the period if more time is required for the study.^[213] There is no limit on the number of subcommittees that may be formed by the House Committee at any one time to study subsidiary legislation.^[214]

11.144The subcommittees appointed by the House Committee to study subsidiary legislation are subcommittees of the House Committee. Any member of the House Committee may join the subcommittee and take part in the scrutiny of the subsidiary legislation. In addition to examining the merits of the subsidiary legislation, matters studied by the subcommittees include the propriety of the authorities making the subsidiary legislation ^[215] and the proper scope of the exercise of the law-making power. The subcommittees also study the extent of power of the Legislative Council to amend the subsidiary legislation which is subject to section 34 of Cap. 1.^[216]

11.145After the subcommittee has completed the consideration of the subsidiary legislation assigned to it, it may present a report to the House Committee.^[217] As the notice period for amendments to subsidiary legislation is not later than 5 clear days before the day on which it is to be considered by the Council ^[218], it has become necessary for subcommittees on subsidiary legislation to report back to the House Committee on the second Friday before the relevant Council meetings. This will allow time for individual Members to consider whether they wish to amend the relevant subsidiary legislation before the notice period is due. Sometimes, a subcommittee may make a verbal report at the House Committee, followed by a written report.

Proceedings in the Council for consideration of subsidiary legislation

11.146Where notice is given by a public officer for a proposed resolution on subsidiary legislation to be considered by the Council under section 35 of Cap. 1, the proposed resolution will be placed on the Agenda after "Government bills" and "Government motions" in accordance with Rule 18 of the Rules of Procedure. If there is more than one such proposed resolution, their order should follow the seniority of the relevant public officers unless advised otherwise by the Government and with the consent of the President.^[219] If more than one amendment is to be moved to the same proposed resolution, these amendments will be dealt with in the order in which the respective amendments relate to the text of the proposed resolution. A joint debate is usually ordered to enable Members to speak on both the proposed resolution and the amendments thereto. After all Members who wish to speak have spoken, the amendments are first disposed of before the Council decides on the proposed resolution.

11.147Any amendment to subsidiary legislation made under section 34 of Cap. 1 must be moved in the form of a proposed resolution within the scrutiny period. If there is more than one proposed resolution to amend the same subsidiary legislation, they will be dealt with in the order in which the respective resolutions relate to the text of the subsidiary legislation. A joint debate is usually ordered to enable Members to speak on both the subsidiary legislation and the proposed resolutions to amend it. Under normal circumstances, the chairman of the subcommittee formed to study the subsidiary legislation is the first person called on by the President to speak in the debate after the mover(s) of the proposed resolution(s) has spoken, if he is not the mover himself. His speech is limited to the usual speaking time of 15 minutes even though part of his speech is to report on the work of the subcommittee.

Withdrawal of subsidiary legislation

11.148The steps to withdraw subsidiary legislation made under section 34 and section 35 of Cap. 1 are different. For the withdrawal of a proposed resolution under 35 of Cap. 1, the notice is usually withdrawn when the House Committee decides to set up a subcommittee to study the subsidiary legislation in detail. ^[220] If it is subsequently decided by the Government that the subsidiary legislation should not be proceeded with for the time being, no further procedure on the part of the Government is required as the notice has already been withdrawn. The subcommittee however needs to submit a report to the House Committee in the same manner as other subcommittees which have completed their work. There is nevertheless one occasion where a resolution was to be moved under section 54A of Cap. 1 in 2009 for the transfer of statutory functions from one official office to another. During the scrutiny of the proposed resolution, the Government's attention was drawn to the certain functions in the resolution which did not exist in the Ordinance concerned. The Government subsequently withdrew the original resolution and put forward a revised resolution which was passed by the Council on 9 July 2009.

11.149As regards subsidiary legislation made and published in the Gazette under an ordinance followed by the procedure of tabling before the Legislative Council pursuant to section 34 of Cap. 1, there is no procedure for its withdrawal from the Agenda of the Legislative Council. Should there be a reason that an item of subsidiary legislation so made and tabled in the Council should not commence operation either on the date of its publication in the Gazette or at a later date pursuant to a commencement mechanism provided in the subsidiary legislation, the Legislative Council may by resolution repeal it.

Matters to be recorded in the minutes of proceedings

11.150It is stipulated in the Rules of Procedure that the following procedure relating to the legislative process should be recorded in the minutes of proceedings:

(a)the order of the Council for a bill after first reading to be set down for second reading (Rule 53(3));

(b)the signification of the Chief Executive's written consent by a designated public officer for the presentation of a Members' bill which relates to Government policies (Rule 54(1) and (2));

(c)the order of the Council for a bill after reporting from a committee of the whole Council to be set down for third reading (Rule 59);

(d)the order of the Council for a bill after reporting from a select committee to be set down for third reading (Rule 61(2)); and

(e)the order of the Council for a bill returned by the Chief Executive for reconsideration to be set down for a motion "That the …. Bill returned by the Chief Executive in accordance with Article 49 of the Basic Law do pass after reconsideration", which may be moved by any Member without notice (Rule 66(5)).

[1]

Article 66 of the Basic Law provides that "[t]he Legislative Council of the Hong Kong Special Administrative Region shall be the legislature of the Region."

[2]

Chapter 2, para. 2.4 - 2.5.

[3]

Laws (Loose-leaf Publication) Ordinance 1990, section 3; and legislative provisions for the legal status of an electronic database of legislation of Hong Kong have been made in the Legislation Publication Ordinance (Cap. 614) but have not yet been brought into effect.

[4]

Articles 56, 62(5) and 74 of the Basic Law.

[5]

Chapter 7, para. 7.81 - 7.83.

[6]

Chapter 10, para. 10.36 - 10.44.

[7]

Erskine May (24th edition), p. 525.

[8]

In the 1884 Standing Orders, before any Private Bill, whereby the property of any private person might be affected, was introduced, notification of the intention of the parties to apply for such Private Bill had to be given by the parties, by advertisements in the Gazette, and by circulation of the proposed bill, once at least in the Gazette (Rule 49 of the Rules of Procedure). The provision was changed in the 1912 Standing Orders where publication in Chinese newspaper was also required if the parties affected were Chinese. No Private Ordinance was allowed to be passed without a saving provision to safeguard the rights of the Crown and all bodies politic or corporate and all other persons except those mentioned in the Ordinance (Rule 50 of the Rules of Procedure).

[9]

Standing Order No. 38(8) of the 1968 Standing Orders.

[10]

Article 160 of the Basic Law provides that "… the laws previously in force in Hong Kong shall be adopted as laws of the Region except for those which the Standing Committee of the National People's Congress declares to be in contravention of this Law [the Basic Law] …".

[11]

Ordinances that were enacted through the passage of private bills are given a chapter number beginning from 1002 in the Laws of Hong Kong, e.g. Basel Evangelical Missionary Society Incorporation Ordinance (Cap. 1002) and Citibank (Hong Kong) Limited (Merger) Ordinance (Cap. 1177).

[12]

Standing Order No. 39(2) required that in the case of a bill having any object or effect, in the opinion of the President or Chairman, of disposing of or charging any part of the revenue or other public moneys of Hong Kong, a certificate stating the Governor's authorization or signification should be provided when giving notice of the presentation of the bill.

[13]

For example, the Sex and Disability Discrimination (Miscellaneous Provisions) Bill 1996, which was a Members' Bill, was passed by the pre-1997 Legislature on 11 June 1997. It was enacted as the Sex and Disability Discrimination (Miscellaneous Provisions) Ordinance 1997 (Ord. No. 71 of 1997).

[14]

Rule 12(3) of the Standing Orders of the pre-1997 Legislature.

[15]

See "Drafting Legislation in Hong Kong - A Guide to Styles & Practice" (2012), published by Law Drafting Division, Department of Justice, para. 1.2.4.

[16]

Paragraphs 11.44 - 11.65.

[17]

Article 48(3) of the Basic Law; Rule 65 of the Rules of Procedure.

[18]

See "Drafting Legislation in Hong Kong - A Guide to Styles & Practice" (2012), published by Law Drafting Division, Department of Justice, para. 1.2.1 - 1.2.2.

[19]

These requirements follow those set out in the pre-1997 Legislative Council Standing Orders, some of which were requirements provided by the Royal Instructions, e.g. the requirements of a savings provision. The saving provision for private bills was mentioned in para. 27(XXVII) of the Hong Kong Royal Instructions 1917 (as amended to 17 February 1993). The numbering and internal arrangement of ordinances were mentioned in para. 25 (XXV) subpara. 2 of the Royal Instructions.

[20]

Rule 51(2) of the Rules of Procedure.

[21]

Rule 51(1) of the Rules of Procedure.

[22]

Rule 50(2) of the Rules of Procedure.

[23]

Rule 50(2) of the Rules of Procedure.

[24]

Rule 58(9) of the Rules of Procedure.

[25]

Under section 2(2) of the Laws (Loose-leaf Publication) Ordinance 1990, Instrument A603, the Secretary for Justice may, in the loose-leaf edition, give a chapter number to an Ordinance and alter the title, short title or citation of the Ordinance; and arrange the grouping and sequence of legislation.

[26]

All principal Ordinances and subsidiary legislation are accessible in electronic form on the Bilingual Laws Information System operated by the Government although the texts in electronic form do not yet have legal status.

[27]

Under Rule 58(10) of the Rules of Procedure, it is not necessary to amend the reference to the year or to any number in the title by which the bill is to be cited if it becomes law. Any such reference may be changed by the Law Draftsman to refer to the year, or to reflect the order, in which the bill becomes law.

[28]

For example, according to the long title of the Statute Law (Miscellaneous Provisions) Bill 2008, the Bill provides for miscellaneous amendments to various Ordinances and for connected purposes. The Bill was passed on 2 July 2008.

[29]

See "Drafting Legislation in Hong Kong - A Guide to Styles & Practice" (2012), published by Law Drafting Division, Department of Justice, para. 1.2.15.

[30]

Rule 50(3) of the Rules of Procedure.

[31]

See "Drafting Legislation in Hong Kong - A Guide to Styles & Practice" (2012), published by Law Drafting Division, Department of Justice, para. 2.1.7.

[32]

Rule 58(9) of the Rules of Procedure.

[33]

See the deliberation on long titles by the Bills Committee on Mainland Judgments (Reciprocal Enforcement) Bill (see Report of the Bills Committee to the Council at http://www.legco.gov.hk/yr06-07/english/bc/bc56/reports/bc560423cb2-1666-e.pdf). The long title of Pesticides (Amendment) Bill 2013 was amended due to amendments made to the content of the Bill.

[34]

Erskine May (24th Edition) p. 528.

[35]

http://www.legco.gov.hk/yr06-07/english/bills/b0702061.pdf

[36]

See section 20 of Interpretation and General Clauses Ordinance (Cap. 1).

[37]

See paragraph 11.36.

[38]

Section 4(5) of the Official Languages Ordinance (Cap. 5) provides that this section does not extend to subsidiary legislation. Rule 30(2) of the Rules of Procedure also provides that a notice of an amendment to a motion (which may include a motion to approve or amend an item of subsidiary legislation) shall be in Chinese if the motion is in Chinese and in English if the motion is in English.

[39]

Typical examples are those relating to financial and companies matters. The Securities and Futures Ordinance (Cap. 571) contains 409 sections grouped under 17 Parts. Some Parts are divided up to 13 Divisions. The new Companies Ordinance (Cap. 622) re-written in 2013 contains 921 sections grouped under 21 Parts. Most Parts are divided into Divisions and Subdivisions.

[40]

See "Drafting Legislation in Hong Kong - A Guide to Styles & Practice" (2012), published by Law Drafting Division, Department of Justice, para. 4.1.5.

[41]

See "Drafting Legislation in Hong Kong - A Guide to Styles & Practice" (2012), published by Law Drafting Division, Department of Justice, para. 4.1.6.

[42]

See minutes of the meeting of the House Committee on 7 January 2011, para. 4 - 9.

[43]

Rule 50(7) of the Rules of Procedure.

[44]

Rule 50(8) of the Rules of Procedure. "Private bill" is one which provides primarily for the particular interest or benefit of any individual association or body corporate rather than the interest or benefit of the public; and is not a government bill (section 2 of Private Bills Ordinance Cap.69).

[45]

Section 3 of the Interpretation and General Clauses Ordinance (Cap. 1).

[46]

Chapter 7, para. 7.81 - 7.83.

[47]

Section 28(1)(c) of the Interpretation and General Clauses Ordinance (Cap. 1).

[48]

Section 28(2) of the Interpretation and General Clauses Ordinance (Cap. 1).

[49]

There may be extraordinary issues of the Gazette published on other days of the week: for example, orders made under the Public Revenue Protection Ordinance (Cap. 120) are published on the Wednesday and at the time when the Financial Secretary delivers his budget speech at the start of the second reading debate on an Appropriation Bill at a meeting of the Legislative Council.

[50]

See "Drafting Legislation in Hong Kong - A Guide to Styles & Practice" (2012), published by Law Drafting Division, Department of Justice, para. 1.3.4 - 1.3.6.

[51]

Rule 29(1) of the Rules of Procedure.

[52]

Section 28(3) of the Interpretation and General Clauses Ordinance (Cap. 1).

[53]

Section 28(5) of the Interpretation and General Clauses Ordinance (Cap. 1).

[54]

Chapter 5, para. 5.88 - 5.93.

[55]

For example, the discussion on the proposed legislative framework to regulate the conduct of interception of communications and covert surveillance by law enforcement agencies at 5 meetings of the Panel on Security before the relevant bill was presented to the Council in March 2006. Another example is the proposal for establishing an independent Insurance Authority, which involved substantial legislative amendments to the Insurance Companies Ordinance (Cap. 41), and was discussed by the Panel on Financial Affairs at a series of meetings from 2010 to 2013 before the relevant bill was first read in Council on 30 April 2014.

[56]

An example is the Urban Renewal Authority White Bill gazetted on 22 October 1999, which sought to provide a legislative framework for the establishment of the Urban Renewal Authority. A subcommittee was formed under the House Committee to study the White Bill in detail. Another example is the setting up of a subcommittee under the House Committee in February 2015, in response to the request of the Panel on Administration of Justice and Legal Services, to study four proposed items of subsidiary legislation on the procedures to be adopted by the Competition Tribunal, so as to allow more time for scrutiny before they were gazetted and laid on the table of the Council.

[57]

Erskine May, 24th Edition, p. 711.

[58]

Article VII (1) of the Letters Patent, 1991.

[59]

Article 48(10) provides that the Chief Executive of the HKSAR shall have the power and function to approve the introduction of motions regarding revenues or expenditure to the Legislative Council.

[60]

See Chapter 10, para. 10.32.

[61]

Meeting of the House Committee of the First Legislative Council on 24 July 1998.

[62]

See Appendix 10-B, para. 16 - 22.

[63]

Employment (Amendment) Bill 1999 proposed by Mr Andrew CHENG Kar-foo.

[64]

Labour Relations (Rights to Representation, Consultation and Collective Bargaining) Bill proposed by Mr LEE Cheuk-yan.

[65]

Erskine May, 24th Edition, p. 755.

[66]

Mrs FAN made reference to Lord Bridge's remark made in the case of Re Smalley [1985] AC 622 on the determination of whether a certain matter was related to a trial on indictment in the context of section 29(3) of the UK Supreme Court Act 1981: "If the statutory language is, as here, imprecise, it may well be impossible to prescribe in the abstract a precise test to determine on which side of the line any case should fall, and therefore, necessary, to proceed on a case by case basis.".

[67]

President's ruling on Employment (Amendment) (No. 2) Bill 1998 proposed by Hon LEE Cheuk-yan on 19 July 1999, para. 21.

[68]

See President's ruling on Fair Competition Bill proposed by Mr Fred LI and Mr SIN Ching-kai on 12 February 2001 paras. 15(b) and 21 at http://www.legco.gov.hk/yr00-01/english/pre_rul/e010212.pdf

[69]

See President's ruling on 25 June 2010, paras. 12 - 16 at http://www.legco.gov.hk/yr09-10/english/pre_rul/pre0625-ref-e.pdf. The President ruled that the proposed Medical Registration (Amendment) Bill 2010 did not relate to public expenditure or the operation of the Government. However, at paras. 29 ( 32 he ruled that the bill related to Government policies within the meaning of Rule 51(4) of the Rules of Procedure, and it could only be introduced if there was written consent of the Chief Executive.

[70]

See Appendix 11-B. (para. 24).

[71]

President's ruling on 18 January 2007 (paras. 35 & 36, 44 ( 47) is at http://www.legco.gov.hk/yr06-07/english/pre_rul/pre0118-ref-e.pdf

[72]

President's ruling on 11 May 2009 is at http://www.legco.gov.hk/yr08-09/english/pre_rul/pre0511-ref-e.pdf

[73]

President's ruling on 25 June 2010 is at http://www.legco.gov.hk/yr09-10/english/pre_rul/pre0625-ref-e.pdf

[74]

Refer to Briefing by the Chief Executive of the Hong Kong Monetary Authority to the Panel on Financial Affairs on 3 January 2000 at http://www.legco.gov.hk/yr99-00/english/panels/fa/minutes/fa030100.pdf

[75]

Presidents rulings on 25 May 2001 at http://www.legco.gov.hk/yr00-01/english/pre_rul/r010525ae.pdf and http://www.legco.gov.hk/yr00-01/english/pre_rul/r010525be.pdf

[76]

President's ruling at http://www.legco.gov.hk/yr03-04/english/pre_rul/pre0304cb3-ref-e.pdf

[77]

Examples of other Members' Bills which were also considered by the President to relate to Government policies on appointments of the institutions' Council members are City University of Hong Kong (Amendment) Bill 2006, The Hong Kong University of Science and Technology (Amendment) Bill 2008 and The Hong Kong Polytechnic University (Amendment) Bill 2010. See President's rulings at  http://www.legco.gov.hk/yr05-06/english/pre_rul/pre0502cb3-ref-e.pdf, http://www.legco.gov.hk/yr07-08/english/pre_rul/pre0529-ref-e.pdf and http://www.legco.gov.hk/yr10-11/english/pre_rul/pre1215-ref-e.pdf respectively. These Bills were all passed by the Council.

[78]

See President's ruling contained in the letter to Mr Eric LI Ka-cheung dated 11 November 1997 at http://www.legco.gov.hk/yr97-98/english/pre_rul/971114.pdf

[79]

Article 73(1) of the Basic Law.

[80]

See, for example, the High Court's judgment in LEUNG Kwok-hung v The President of the Legislative Council of the Hong Kong Special Administrative Region [2007] 1 HKLRD 387, para. 7.

[81]

Rule 51(1) of the Rules of Procedure.

[82]

Rule 51(5) of the Rules of Procedure.

[83]

Section 4(3) of Official Languages Ordinance (Cap. 5).

[84]

Rule 52(1) of the Rules of Procedure.

[85]

Rule 51(4) of the Rules of Procedure.

[86]

Rule 51(1) and (2) of the Rules of Procedure.

[87]

"Private bill" is one which provides primarily for the particular interest or benefit of any individual association or body corporate rather than the interest or benefit of the public; and is not a government bill (section 2 Private Bills Ordinance Cap.69).

[88]

Rule 51(6) of the Rules of Procedure.

[89]

Rule 52(1)(b) of the Rules of Procedure.

[90]

Rule 51(8) of the Rules of Procedure.

[91]

Rule 51(9) of the Rules of Procedure.

[92]

Rule 51(7)(a) of the Rules of Procedure.

[93]

Rule 51(7)(b) of the Rules of Procedure.

[94]

Rule 51(7)(a) and Rule 51(7A) of the Rules of Procedure. Also see Progress report of the Committee on Rules of Procedure for the period May 1999 to June 2000, para. 2.1 - 2.19.

[95]

In the 14th Century, it was already the usual practice of the House of Commons to read a Bill three times. "All bills be thrice, in three divers days, read and disputed upon, before they come to the question .." quoted from Sir Gilbert Campion (1950), An Introduction to the Procedure of the House of Commons, p. 22.

[96]

Rule 52(2) of the Rules of Procedure.

[97]

Rule 53(1) of the Rules of Procedure.

[98]

Rule 53(2) of the Rules of Procedure.

[99]

Standing Order 41(3) of the Standing Orders of pre-1997 Legislature.

[100]

Rule 54(1) of the Rules of Procedure.

[101]

Rule 54(2) of the Rules of Procedure.

[102]

Rule 54(4) and Rule 71(11) of the Rules of Procedure.

[103]

It has been a standing practice that all major legislative proposals should first be discussed by the relevant policy Panels before they are formally introduced to the Council.

[104]

See Rule 20(g) of the House Rules.

[105]

Rule 21(c) of the House Rules.

[106]

Rule 75(5) of the Rules of Procedure and Rule 20(g) of the House Rules.

[107]

The setting of a quota for the number of Bills Committee that may be operating at the same time was made by the House Committee in 1994.

[108]

Rule 21(f) and Rule 20(g) of the House Rules.

[109]

Rule 21(f) of the House Rules.

[110]

Rule 75(4) of the Rules of Procedure.

[111]

In the case of the Banking (Amendment) Bill 2011, a Member raised concern after the House Committee had decided that it was not necessary to form a Bills Committee to study the Bill and raised no objection to the resumption of the second reading debate on the Bill. The Member concerned was asked to follow up his concerns with the Government through the Legal Service Division and express his concern during the second reading debate on the Bill. The House Committee subsequently noted that the Government had given its reply to the Legal Service Division regarding the Member's concern about the Bill.

[112]

Rule 21(g) of the House Rules.

[113]

On 2 March 2001, the House Committee agreed that the Bills Committee on Inland Revenue (Amendment) Bill 2000 would hold in abeyance the consideration of the Bill pending the Government's response to the issues identified by the Bills Committee, and that the slot would be allocated to another Bills Committee on the waiting list. On 24 October 2003, noting the Government's confirmation that it was ready to resume discussion with the Bills Committee, the House Committee agreed to allocate an available slot for the re-activation of the Bills Committee.

[114]

Rule 75(6) of the Rules of Procedure.

[115]

Rule 75(8) of the Rules of Procedure.

[116]

Rule 21(h) of the House Rules.

[117]

Subrule (iv) of Rule 21(i) of the House Rules.

[118]

Rule 76(6) of the Rules of Procedure.

[119]

Rule 76(8) of the Rules of Procedure.

[120]

Rule 76(9) of the Rules of Procedure and Rule 21(j) of the House Rules.

[121]

Para. 8.18 of the Handbook for Chairmen of Bills Committee.

[122]

Rule 76(10) of the Rules of Procedure.

[123]

Rule 21(i)(iii) of the House Rules.

[124]

Rule 76(9) of the Rules of Procedure and Rule 21(l) of the House Rules.

[125]

Rule 21(k), (m) and (o) of the House Rules.

[126]

Rule 21(n) of the House Rules.

[127]

Rule 21(p) of the House Rules.

[128]

Rule 21(q) of the House Rules.

[129]

Rule 21(r) of the House Rules.

[130]

Also refer to Note in Appendix 10-A.

[131]

Rule 54(5)(d) of the Rules of Procedure.

[132]

Rule 54(5)(e) of the Rules of Procedure.

[133]

Chapter 8, para. 8.9 – 8.10 (on speaking order), 8.16 (on speaking time).

[134]

Rule 54(8) of the Rules of Procedure.

[135]

Rule 64 of the Rules of Procedure.

[136]

An example is the withdrawal of the Legislative Council (Amendment) Bill 2011 at the Council meeting of 22 February 2012 after it introduced the Legislative Council (Amendment) Bill 2012 on 8 February 2015 to address the concerns expressed by the community in respect of the proposals in the earlier Bill. Hansard, pp. 6118 ( 6120.

[137]

The last occasion when a bill was referred to a select committee was in the case of the Appropriation (1968-69) Bill which was reported to the Council on 27 March 1968. In 1985 the principles and issues raised by the Trial of Commercial Crimes Bill 1985 were referred to a select committee (under what is now Rule 78(1)). Whilst the Bill itself was deferred and subsequently withdrawn upon introduction of the Complex Commercial Crimes Bill 1988 which followed the select committee's recommendations. The original bill was not committed to the select committee for the important reason, also applicable to date under Rule 56(1) of the Rules of Procedure that only the details and no the principles of a committee bill may be discussed by a select committee.

[138]

Rule 56 of the Rules of Procedure.

[139]

See ancillary motion in Chapter 10, paragraph 10.11 – 10.13. The ancillary motion "That the following clauses stand part of the bill" is dependent on a motion on the bill which is a substantive proposal.

[140]

Rule 58(1) of the Rules of Procedure.

[141]

Rule 58(2) of the Rules of Procedure.

[142]

Rule 38(1)(a) of the Rules of Procedure.

[143]

Rule 45(1) of the Rules of Procedure.

[144]

See Chapter 8, para. 8.34 – 8.36.

[145]

Rule 58(1) of the Rules of Procedure.

[146]

Examples are clause 58 of the Race Discrimination Bill negatived at the Council meeting of 9 July 2008, Hansard, pp. 10827 ( 10848; and the heading of Part 5 and clause 18 of the Minimum Wage Bill negatived at the Council meeting of 15 July 2010, Hansard, pp. 11824 ( 11826 and p. 11960.

[147]

Rule 58(5) of the Rules of Procedure.

[148]

Rule 58(6) of the Rules of Procedure.

[149]

Rule 58(7) of the Rules of Procedure.

[150]

Rule 58(8) of the Rules of Procedure.

[151]

Rule 58(9) of the Rules of Procedure.

[152]

Rule 58(10) of the Rules of Procedure.

[153]

Rule 60(1) of the Rules of Procedure.

[154]

Rule 60(2) of the Rules of Procedure.

[155]

Rule 60(3) of the Rules of Procedure.

[156]

Rule 61(1) of the Rules of Procedure.

[157]

Rule 61(2) of the Rules of Procedure.

[158]

Rule 61(3) and (4) of the Rules of Procedure.

[159]

Rule 62(1) and (2) of the Rules of Procedure.

[160]

Rule 62(3) of the Rules of Procedure.

[161]

Rule 62(4) of the Rules of Procedure.

[162]

Rule 63(1) of the Rules of Procedure.

[163]

Sections 11 to 14 (Part 4 of the Ordinance) and 17 of the Legislation Publication Ordinance (Cap. 614) provide for the editorial and revision powers of the Secretary for Justice over legislation of Hong Kong.

[164]

According to Erskine May (2011)(24th Edition), in the House of Commons only verbal amendments may be made to a bill on the third reading. p. 595.

[165]

Rule 63(2) of the Rules of Procedure.

[166]

Rule 63(3) of the Rules of Procedure.

[167]

Rule 63(4) of the Rules of Procedure.

[168]

Rule 65 of the Rules of Procedure.

[169]

Rule 57(2) of the Rules of Procedure.

[170]

In respect of the Appropriation Bill 2014, the President ruled the 909 sequential amendments proposed by Ms LEUNG Kwok-hung out of order but gave leave to waive the notice of 232 amendments selected by Mr LEUNG out of the 909 rejected amendments. In another case, the President waived the required notice for the public officer in charge of the Stamp Duty (Amendment) Bill 2013 to move consequential amendments to the Bill following the passage of the amendments proposed by a Member in committee of the whole Council.

[171]

Chapter 10, para. 10.63.

[172]

Rule 34(2) of the Rules of Procedure.

[173]

Rule 58 of the Rules of Procedure.

[174]

See Erskine May (2011)(24th edition) pp. 572 - 573; and House of Commons Procedure and Practice (Canada)(2nd Edition) p.765.

[175]

Examples of permission being given by the President for the Secretary for Security to delete an entire clause from a bill can be found in the Marriage (Introduction of Civil Celebrants of Marriages and General Amendments) Bill passed by the Council at its meeting of 16 November 2005 (clause 7, Hansard, p.1981) and the Electronic Health Record Sharing System Bill passed by the Council at its meeting of 8 July 2015 (clause 16, Hansard, pp. 14579 - 14585).

[176]

Standing Order No. 45.

[177]

Rule 56(2) of the Rules of Procedure.

[178]

Erskine May (2011) (24th Edition), p. 576.

[179]

In an information paper provided by the Legal Service Division to the Bills Committee on the Rail Merger Bill, the factors which are taken into consideration by the President to consider the relevance of a proposed amendment are explained. See http://www.legco.gov.hk/yr05-06/english/bc/bc03/papers/bc03ls-71-e.pdf, para. 9 - 12.

[180]

In the case of the Mass Transit Railway Bill ("MTR Bill"), the President took into account the summary of the principal headings of the operating agreement between Government and the Mass Transit Railway Corporation which was annexed to the Legislative Council Brief on the MTR Bill. That summary was information available outside of the MTR Bill, but was considered relevant by the President.

[181]

President's ruling on 10 July 2006 at http://www.legco.gov.hk/yr05-06/english/pre_rul/pre0710cb3-ref-e.pdf

[182]

President's ruling on 10 July 2006 at http://www.legco.gov.hk/yr05-06/english/pre_rul/pre0710cb3-ref-e.pdf.

[183]

President's ruling on 20 April 2015 in relation to the Appropriation Bill 2015.

[184]

Rule 57(4)(b) of the Rules of Procedure.

[185]

An example is in relation to the amendments proposed to the Personal Data (Privacy)(Amendment) Bill 2011 which was dealt with at the Council meeting of 27 June 2012. Both Secretary for Constitutional and Mainland Affairs who was in charge of the Bill and Mr James TO gave notice to move amendments to clause 21 of the Bill. After the committee of the whole Council passed the Secretary's amendment, Mr James TO was not allowed to move his amendments. Hansard, pp. 16583 – 16654.

[186]

An example is in relation to Ms Cyd HO's amendments to the Hong Kong Arts Development Council (Amendment) Bill 2013 which was dealt with at the Council meeting of 10 July 2013. Ms HO's proposal was to add a new clause 4 to the Bill and amend clauses 2 and 3 which were dependent on the passage of the new clause 4. After the proposal to add clause 4 was negatived, Ms HO was not allowed to move amendment to clauses 2 and 3. Hansard, p. 241.

[187]

Rule 57(4)(c) of the Rules of Procedure.

[188]

See President's ruling at http://www.legco.gov.hk/yr06-07/english/pre_rul/pre0611-ref-e.pdf.

[189]

Rule 57(4)(d) of the Rules of Procedure.

[190]

The proposed amendments sought to disqualify a person who had resigned as a Member of the Legislative Council from standing for a by-election. Each of the amendments specified a factor for the disqualification and the factor was presented in a sequentially varying degree in a series of amendments.

[191]

Rule 92 of the Rules of Procedure provides that in any matter not provided for in the Rules of Procedure, the practice and procedure to be followed in the Council shall be such as may be decided by the President who may, if he thinks fit, be guided by the practice and procedure of other legislatures.

[192]

See President Jasper TSANG's ruling at Appendix 8-A.

[193]

See President Jasper TSANG's ruling at http://www.legco.gov.hk/yr11-12/english/pre_rul/pre0618-ref-e.pdf

[194]

In a ruling made by President Jasper TSANG on 10 July 2008, Mr James TO's proposed amendment was found out of order because of a discrepancy between the Chinese and English texts of the term "Commissioner of the Independent Commission Against Corruption". See http://www.legco.gov.hk/yr07-08/english/pre_rul/pre0710-ref-e.pdf.

[195]

Rule 57(5) of the Rules of Procedure.

[196]

President's ruling at http://www.legco.gov.hk/yr99-00/english/pre_rul/991129.pdf

[197]

Chapter 10, para. 10.45.

[198]

Chapter 10, para. 10.45 - 10.56.

[199]

Rule 52(2) of the Rules of Procedure.

[200]

Rule 64(1) of the Rules of Procedure.

[201]

Rule 64(2) and (3) of the Rules of Procedure: see, for example, withdrawal of the Legislative Council (Amendment ) Bill 2011 at the Council meeting of 22 February 2012, Hansard, pp. 6118 - 6120.

[202]

Rule 64(1) of the Rules of Procedure.

[203]

Mr LAU Chin-shek resigned from the office of a Legislative Council Member in protest of the withdrawal of the Employment (Amendment) Bill 1994 at third reading stage. The explanation given by the Secretary for Education and Manpower for the withdrawal of the Bill is provided in the Hansard of the sitting at http://www.legco.gov.hk/yr94-95/english/lc_sitg/hansard/h941214.pdf.

[204]

Council meeting on 25 June 1997, Hansard, pp. 829 ( 838.

[205]

Chapter 5, para. 5.75 - 5.78.

[206]

Under section 34(2) of Cap.1, amendments to the subsidiary legislation may be made by resolution in the Council not later than 28 days after the tabling of the subsidiary legislation in the Council. This 28-day scrutiny period may be extended by resolution in the Council before the expiry of the scrutiny period to the first sitting of the Council held not earlier than the 21st day after the 28-day period.

[207]

Chapter 6, para. 6.24 - 6.27; Chapter 7, para 7.81 - 7.87; Chapter 10, para 10.23 - 10.26.

[208]

At its meeting on 16 February 2015, the Panel on Administration of Justice and Legal Services was consulted on the draft Rules to be adopted by the Competition Panel following the enactment of the Competition Ordinance. Given the volume of the draft Rules, which were subsidiary legislation subject to the negative vetting procedure, the Panel proposed to the House Committee at its meeting on 27 February 2015 for the appointment of a subcommittee under the House Committee to study the proposed subsidiary legislation before it was gazetted and tabled in the Council. The House Committee agreed to the proposal.

[209]

The Bills Committee on Civil Justice (Miscellaneous Amendments) Bill 2007, when reporting on its work at the House Committee meeting on 18 January 2008, proposed the setting up of a subcommittee to scrutinize the large number of complex proposed amendments to three sets of subsidiary legislation relating to civil proceedings. See http://www.legco.gov.hk/yr07-08/english/hc/papers/hc0118cb2-834-e.pdf.

[210]

On 18 May 2007, the House Committee decided to form a subcommittee to study the legislative amendments relating to the proposed re-organization of policy bureaux of the Government Secretariat. See minutes of House Committee meeting at http://www.legco.gov.hk/yr06-07/english/hc/minutes/hc070518.pdf.

[211]

Another example is the draft subsidiary legislation relating to rail merger. See minutes of House Committee meeting on 25 May 2007 at http://www.legco.gov.hk/yr06-07/english/hc/minutes/hc070525.pdf.

[212]

An exception was in the case of the proposed resolution under the Mandatory Provident Fund Scheme Ordinance. Members agreed at the House Committee meeting on 17 June 2011 not to request the Government to withdraw its notice for moving the proposed resolution even though a subcommittee was formed to study the proposed resolution.

[213]

Rule 29(3) of the Rules of Procedure. Also see Chapter 10, para. 10.25.

[214]

At the House Committee meeting on 6 October 2006, it was decided that Rule 21(a) of the House Rules should be amended to make it clear that the quota system that applied to Bills Committee did not apply to subcommittees on subsidiary legislation, as work on most items of subsidiary legislation was required to be completed within a statutory time limit.

[215]

There have been cases where the appropriateness of the authorities making the subsidiary legislation came under question. An example is the Solicitors (General) Costs (Amendment) Rules 2013. A fresh set of amendment rules was subsequently published by the Costs Committee of the Law Society of Hong Kong in the Gazette known as Solicitors (General) Costs (Amendment) Rules 2014.

[216]

Where a question is raised on the admissibility of a motion to amend a piece of subsidiary legislation on grounds of ultra vires, it is the practice of the President to refer to the power given to the authorities which make the subsidiary legislation under the relevant provisions in Cap. 1 and the relevant ordinance. See Chapter 10, para. 10.36 – 10.44. On 21 January 2011, the House Committee appointed a subcommittee to study the power of the Legislative Council to amend subsidiary legislation. The report of the Subcommittee, which contains the views of the two legal professional bodies and legal academics from three universities, is at http://www.legco.gov.hk/yr11-12/english/hc/papers/hc0210cb2-975-appi-e.pdf.

[217]

Rule 75(10A) of the Rules of Procedure.

[218]

Rule 29(2) of the Rules of Procedure. Also see Chapter 10, para. 10.24. Under this rule, the President may in his discretion dispense with such notice.

[219]

See Chapter 7, para. 7.86 - 7.87.

[220]

The notice of a proposed resolution to be moved under section 5(4) of the Motor Vehicles (First Registration Tax) Ordinance at the Council meeting of 4 March 2014 was withdrawn upon the request of the House Committee after a decision was made on 28 February 2014 to form a subcommittee to study the proposed resolution. The Secretary for the Environment wrote to the Clerk to the Council on 4 March 2014 to withdraw the notice so that the subcommittee would have sufficient time to examine the proposed resolution. The proposed resolution was subsequently passed at the Council meeting of 26 March 2014. See report of the relevant subcommittee at http://www.legco.gov.hk/yr13-14/english/hc/papers/hc0314cb1-1078-e.pdf.