Legislative Council of the Hong Kong Special Administrative Region - A Companion to the history, rules and practices of the Legislative Council of the Hong Kong Special Administrative Region ¶ Part I: An introduction to the Legislative Council, its history, organisation and procedure

Chapter 5

The Executive Authorities and the Legislature

5.1The relationship between the executive authorities and the legislature under the political structure of the HKSAR established by the Basic Law has been described as "of regulation and co-ordination".^[1] ^[2] This Chapter explains how the Chief Executive, as head of the executive authorities, and the Legislative Council interact with each other in the performance of their respective functions, and how the Chief Executive accounts to the Legislative Council for the work of the Government. Since a large part of this interaction is modelled on practices which existed before July 1997, this Chapter also provides a comprehensive account of the historical development of such practices and the reasons for some of the significant changes which have taken place in past years. It is hoped that this approach will assist in a better understanding of the rationale behind the practices.

Relationship between the Chief Executive and the Legislature under the Basic Law

5.2The relationship between the Government of the HKSAR, headed by the Chief Executive, and the Legislative Council is regulated by the Basic Law; in practice they interact with each other in the course of performing the powers and functions conferred on them respectively in Chapter IV of the Basic Law.

5.3As regards policy-making, it is the Government's function to formulate and implement policies. The Chief Executive, assisted by the Executive Council, decides on public policies. Through regular policy addresses to the Legislative Council and answering questions raised by its Members, the Chief Executive and his Government are accountable to the Legislative Council. The Legislative Council correspondingly has the power and function to receive and debate the Chief Executive's policy addresses and raise questions on the work of the Government. It also has the power and function to debate any issue concerning public interests.^[3]

5.4Regarding law-making, the Legislative Council has the power and function to enact, amend and repeal laws, while the Government has the power and function to draft bills, motions and subordinate legislation and introduce them into the Legislative Council. The Chief Executive is required to consult the Executive Council before introducing bills or making subordinate legislation. The President of the Legislative Council, who presides over meetings and decides on the agenda, must give priority to government bills for inclusion on the agenda. The Legislative Council is required to proceed with bills and subordinate legislation in accordance with the provisions of the Basic Law and legal procedures.^[4]

5.5Once a bill is passed, the Chief Executive must sign the bill and promulgate the enacted law; and the Government must implement the laws passed by the Legislative Council and already in force.^[5] However, if the Chief Executive considers that a bill passed by the Legislative Council is not compatible with the overall interests of the HKSAR, he may return it to the Legislative Council within three months for reconsideration. If the Legislative Council passes the original bill again by not less than a two-thirds majority of all its Members, the Chief Executive must sign and promulgate it within one month, and if he refuses to sign and consensus cannot be reached after consultations, the Chief Executive may dissolve the Legislative Council after consulting the Executive Council.^[6] If the original bill in dispute is passed again by the new Legislative Council by a two-thirds majority of all its Members, and the Chief Executive still refuses to sign it, the Chief Executive must resign.^[7]

5.6Also if the Legislative Council refuses to pass an "important" ^[8] bill introduced by the Government and consensus cannot be reached after consultations, the Chief Executive may dissolve the Council after consulting the Executive Council. If the new Legislative Council refuses to pass the original bill in dispute, the Chief Executive must resign.

5.7Individual Members of the Legislative Council may also introduce bills in accordance with the Basic Law and legal procedures, provided that they do not relate to public expenditure or political structure or the operation of the government.^[9] If a bill relates to government policies, the written consent of the Chief Executive must be obtained before it can be introduced. If a Member's bill is included on the agenda of the Council, the Legislative Council shall proceed with it in the same way as any government bills except as regards voting procedures and priority on the agenda being given to government bills under Article 72(2) of the Basic Law. After the bill is passed by the Legislative Council, it can only take effect if the Chief Executive signs the bill and promulgates it. Once that is done, the government must implement the newly promulgated law.^[10]

5.8Under the Basic Law, financial initiative rests with the Government. This principle has been in existence since before 1997.^[11] It is the Government's power and function to draw up and introduce budgets and final accounts. Any motions regarding revenues or expenditure must first be approved by the Chief Executive who also needs to consult the Executive Council if such motions involve legislation. Legislative Council's approval must be obtained for taxation and public expenditure. The Legislative Council has the power and function to examine and approve the budgets, taxation and public expenditure. If the Legislative Council refuses to pass a budget ^[12], and if consensus cannot be reached after consultations, the Chief Executive may dissolve the Legislative Council after consulting the Executive Council. If the new Legislative Council still refuses to pass the original budget in dispute, the Chief Executive must resign.^[13]

5.9Under the Basic Law, the power to appoint and remove judges lies with the Chief Executive, and the respective procedures are prescribed in Articles 88 and 89. In the case of appointment or removal of judges of the Court of Final Appeal and the Chief Judge of the High Court, under Article 90, the Chief Executive is required, apart from following the procedures in Articles 88 and 89, to obtain the endorsement of the Legislative Council. The Legislative Council has the power and function to endorse the appointment or removal of these judges. Once endorsed, the Chief Executive will proceed with their appointment or removal.^[14]

5.10The Chief Executive designates Government officials to attend meetings of the Council and its committees and to speak on behalf of the government. In exercising its powers and functions, the Legislative Council may summon, as required, persons concerned to testify and give evidence. These persons may include designated Government officials or other personnel in charge of government affairs. The Chief Executive may decide, in the light of security and vital public interests, whether these persons should testify or give evidence before the Legislative Council or its committees.^[15]

5.11Under Article 72, the President of the Legislative Council also has the power and function to call emergency sessions of the Legislative Council on the request of the Chief Executive.

Chief Executive's attendance at meetings of the Legislative Council

5.12To be accountable to the Legislative Council, the Chief Executive, as head of the Government of the HKSAR, has the obligation to attend meetings of the Legislative Council, including delivering his policy addresses and responding to questions from Members of the Council. For this purpose, Rule 8 of the Rules of Procedure has provided that the Chief Executive may at his discretion attend meetings of the Council, or any committee or subcommittee of the Council for the following purposes:

(a)addressing the Council at any time as he shall think fit, including during a special meeting;

(b)answering Members' questions put to him on the work of the Government; and

(c)proposing any policy, measure, bill, resolution, motion or question for debate by and in the Council or any such committee or subcommittee.

5.13The meetings attended by the Chief Executive are not subject to the normal notice requirement for Council meetings. Rule 14 of the Rules of Procedure provides that in cases of emergency and meetings held for the purpose of Rule 8 (Attendance of the Chief Executive), the President may dispense with the 14 clear days written notice to Members and in that event the longest possible notice of the meeting should be given.^[16] Rule 18 also provides flexibility for determining the order of business at a meeting attended by the Chief Executive.

5.14The Chief Executive, when present at a meeting of the Legislative Council or a committee of the Council, shall enjoy the same privileges and immunities as those provided in or conferred on the Members of the Council by sections 3, 4 and 5 of the Legislative Council (Powers and Privileges) Ordinance (Cap. 382), i.e. freedom of speech and debate, immunity from legal proceedings and freedom from arrest. The Chief Executive, when lawfully ordered to appear before the Council or a committee as a witness to give evidence, is also entitled to the same rights and privileges as in a court of law. There has been discussion between the Government and the Legislative Council on whether the Chief Executive is subject to Legislative Council's power to summon witnesses under section 9 of the Ordinance. Further details are provided in the latter part of this Chapter.

Policy Addresses

Historical background

5.15The policy addresses referred to in Articles 64 and 73(4) are historically the addresses given by the head of the Government of Hong Kong to the Legislative Council at the start of a legislative session. Prior to 1929, before a provision was made in the Standing Orders to enable the Governor to address the Council at any time, it had been the practice of the Governor, who presided at sittings of the Legislative Council, to invite an Official Member to read out messages on his behalf at the sittings. Even after 1929, the addresses or statements made by the Governors were made only when needed and were mostly in response to incidents of public concern. There was an interruption of proceedings between 1941 and 1946 due to the Second World War. When the Council resumed proceedings in May 1946, the then Governor Sir Mark Young addressed the Council on those matters of first importance in Hong Kong, and he linked his address to the Appropriation Bill to be introduced on 25 July 1946.

5.16The first "policy address" of the Governor was made by Sir Alexander Grantham on 19 March 1948. This address provided a macro view on the economic performance of Hong Kong and highlighted the pressing issues which required Government's immediate actions. Again, this address of the Governor was linked to the Appropriation Bill which was introduced by the Financial Secretary at the same sitting. This practice continued until February 1969.

5.17A major change took place in 1968. In October, the Standing Orders^[17] were amended to provide that there should be a session of the Council once in every year. Prior to that, as the then Governor Sir David Trench said in his policy address on 1 October 1969 at the start of the 1969-1970 legislative session, "our previous Standing Orders gave us a remarkably long last session. Arguably, it might be said to have started in 1844!" ^[18]

5.18Another significant change effected by the 1968 Standing Orders was the putting in place of an explicit provision that at the first sitting of the session, "[t]he Governor, if he so wishes, shall deliver a speech to the Council", and that a motion may be moved without notice for an address of thanks to the Governor for his speech. Following delivery of the first such speech on 1 October 1969, a motion of thanks was moved, debated and passed by the Council on 8 October 1969. The practice of the Governor to deliver a speech at the start of a new session and the moving of a motion of thanks on the Governor's speech then developed and became a key feature of the constitutional relationship between the head of the Government and the Legislative Council. This speech of the Governor delivered at the first sitting of a session covered a wider range of subjects and from October 1972 onwards ^[19] was known as the Governor's Address (or "Policy Address"). These policy addresses were all delivered at the first sitting of the session^[20].

Timing for the delivery of the Policy Address

5.19The arrangement for the head of the Government to deliver a policy address in the Council and for the Council to debate the address was written into the Basic Law as one of the powers and functions of the Legislative Council of the HKSAR.^[21] The First Legislative Council of the HKSAR adopted the pre-1997 arrangements for the delivery of the Policy Address in the Legislature and provided Rule 8 of the Rules of Procedure for the purpose. There is no stipulation in the Rule that the Chief Executive must address the Council at the first meeting of the session; it is a matter of discretion for him to decide when he wishes to address the Council. This was a conscious decision made by the First Legislative Council since at that time the term of office of the Legislative Council commenced on 1 July while by convention the Policy Address was delivered in October.

5.20As explained in Chapter 2, the six-week break which took place shortly after the First Legislative Council commenced office in July 1998 had prompted the Committee on Rules of Procedure to undertake a study of the best timing for the commencement of a legislative session. In the study, it was noted that the working mechanism within the Government had for a long time been designed to facilitate the Policy Address to be delivered in October, which was the starting time of a new session in the pre-1997 Legislative Council, followed by presentation of the budget in March. The Committee on Rules of Procedure recommended that a legislative session should commence in October. This recommendation had the support of all Members and was accepted by the Government.

5.21With the legislative session to commence in October, the Committee on Rules of Procedure also recommended the addition of Rule 13(1A). The new rule provided that "[t]he Chief Executive shall deliver a Policy Address to the Council, if he so wishes, at the first meeting of a session". The recommendation was made after consulting all Members. The majority of Members considered that the requirement for the delivery of the Policy Address at the first meeting of a session needed to be provided for explicitly in the Rules of Procedure. The Government maintained the view that the new rule was unnecessary and the best approach was to leave sufficient flexibility for the Chief Executive to decide when to deliver the Policy Address. Notwithstanding, the Council passed the motion to add Rule 13(1A) to its Rules of Procedure on 28 April 1999. The Policy Addresses from 1999 to 2001 were delivered in October.

5.22In July 2002, following Chief Executive TUNG Chee-hwa's commencement of his second term of office with a new team of Principal Officials appointed at the start of his new term, Mr TUNG decided to defer the delivery of his Policy Address to January 2003 and to deliver subsequent Policy Addresses in January each year. The decision was conveyed to the Chairman of the House Committee by the Chief Secretary for Administration who was invited to attend a meeting of the House Committee on 5 July 2002 to explain the reasons for the decision. The Government considered that the narrowing of the time gap between the delivery of the Policy Address and the presentation of the Budget (scheduled for March 2003) would help ensure speedy implementation of new initiatives announced in the Policy Address which required new funding, to the benefit of the community at large. The general view among Members was that the delivery of the Policy Address at the start of a session was a long standing convention which had been followed with good reasons. The implication on the operation of the Legislature of having the Policy Address deferred to January of the following year should be carefully considered before a decision was made.

5.23To address Members' concern^[22], the Government conducted a review of the future timetable for the delivery of the Policy Address and the Budget. In April 2003, it concluded that the delivery of the Policy Address and that of the Budget should not be separated by more than two months, so as to enable the Government to reflect promptly in the Budget the priorities and policies pledged in the Policy Address and Policy Agenda, thereby enhancing the overall efficiency of policy formulation and implementation. Since the timing of the Budget could not be changed, all future Policy Addresses would be delivered in January so as to keep the time gap between the two speeches to about two months. The majority of Members, however, still considered that the delivery of the Policy Address in October was a more suitable arrangement for the operation of the Legislative Council. Nevertheless, the Government maintained that on balance, the delivery of the Policy Address in January was the best arrangement and should be adopted for the coming years. The two subsequent Policy Addresses of Mr TUNG before he resigned on 10 March 2005 were delivered on 7 January 2004 and 12 January 2005.

5.24In July 2005, after Mr Donald TSANG became Chief Executive on 21 June 2005, he decided that for his two-year term of office, he would deliver his first policy Address in October 2005 and the following Address in October 2006 at the beginning of the legislative session, to respond to Members' preference. When Mr TSANG was re-elected as Chief Executive in 2007, all his five Policy Addresses in his second term were delivered in October.

5.25In July 2012, after Mr LEUNG Chun-ying became Chief Executive, he attended the second meeting of the newly elected Fifth Legislative Council to elaborate his concept of governance, review progress made in the first three months of the Fourth Term Government, and outlined his policy direction and work priorities in 2013. As for the Policy Address, he decided that his first Address would be delivered in January 2013 to allow sufficient time for his new team of Principal Officials to conduct a full-fledged consultation with Members of the new term Legislative Council so as to foster a constructive partnership with the Council. Mr LEUNG's first Policy Address was delivered on 16 January 2013.

5.26Mr LEUNG's decision to defer his first Policy Address to January 2013 met with opposition from some Members who considered that there would not be sufficient time for the public views on the Policy Address delivered in January to be taken into account by the Financial Secretary for reflection in the Budget. The Government advised the Legislative Council that the Chief Executive's intention to deliver his Policy Addresses in January for the rest of the term of the Government would not be changed. The Government reiterated the need to ensure that initiatives announced in the Policy Address which required new funding could be implemented at the earliest possible opportunity.

Special arrangements for the Policy Address

5.27To recognize the importance of the Policy Address, there was a convention during the days of the pre-1997 Legislature that no other business would be transacted by the Council at the meeting at which the Policy Address was delivered. This practice was shown in the way other business was avoided for the first sitting of the session and was reflected in the Standing Orders. Although these arrangements still exist in the current Rules of Procedure, such as no questions may be asked at the meeting when the Chief Executive delivers a Policy Address^[23], and the order of business of the Council need not follow the Agenda set out in Rule 18 of the Rules of Procedure, etc., there were occasions in recent years when some business of the Council was put on the Agenda for those meetings due to the need to comply with the legislative timetable for processing subsidiary legislation tabled in the Council in the previous session.^[24] The change of the timing for the delivery of the Policy Address from October to January has made it more difficult to avoid scheduling any other business on the day when the Policy Address is delivered. In addition, Part E of the Rules of Procedure on questions to the Government, other than Rule 25 (contents of questions) is also not applicable to questions put to the Chief Executive^[25] if he is attending the meeting of the Council under Rule 8 of the Rules of Procedure. Part E sets out the notice requirements and the manner in asking and answering questions to the Government.

Motion of Thanks

Historical background

5.28As mentioned earlier in this Chapter, in 1968 the Standing Orders were amended to provide for a motion to be moved without notice for an address of thanks to the Governor for his speech. The Standing Orders also provided the prescribed wording and that Members could move amendments to the motion only by way of adding words at the end of the motion. The convention until 1988 was that this motion was moved by the Chief Secretary; it then became the responsibility of the most senior Unofficial Member of the Legislative Council to move the Motion of Thanks. In 1992, with the setting up of the House Committee under the formal committee structure of the Legislative Council, it was decided that the Chairman of the House Committee should be responsible for moving the motion which has become the standard practice.

Format and procedures

5.29Although there is no requirement in the Basic Law that there should be a motion to thank the Chief Executive for his Policy Address, Article 73(4) of the Basic Law stipulates that it is the Legislative Council's function "to receive and debate the policy addresses of the Chief Executive". For a debate to be held in the Council, there is a need for a motion to be moved. Discussion on the subject took place in the Committee on Rules of Procedure of the First Legislative Council. Although there was a suggestion to review whether the motion to facilitate a debate on the Policy Address should be a motion to thank the Chief Executive, i.e. a Motion of Thanks, or a more neutrally worded motion or a motion not requiring any voting, the majority of Members considered that in the absence of a better alternative, it would be more appropriate to maintain the status quo.^[26]

5.30The procedure for the moving of the Motion of Thanks is provided in Rule 13 of the Rules of Procedure, which comprises the following components:

(a)At a meeting not less than 14 days after the Chief Executive has presented a Policy Address to the Council, a motion may be moved with not less than 7 clear days' notice for an address of thanks to the Chief Executive for his address;

(b)The motion in (a) above shall be in the following form: "That this Council thanks the Chief Executive for his address."

(c)Amendments may be moved to the motion only by way of adding words at the end of the motion and notice of the amendments should be given no later than 5 clear days before the meeting in question but the President may give leave to dispense with such notice.

Notice requirement

5.31The 7 clear days' notice for the Motion of Thanks is a special arrangement provided in April 2000 by amending Rule 13 of the Rules of Procedure which originally was modelled on Standing Order No. 6(3), (5) and (6) of the Pre-1997 Legislature. Under the original Rule 13, the motion and amendments could be moved without notice. Members were allowed to propose amendments at any time during the debate leading to the difficulties in the conduct of proceedings. However, it was also not practicable to adopt the normal notice period of 12 clear days for other motions as the debate on the Motion of Thanks by convention took place 2 weeks after the delivery of the Policy Address. The shorter notice period of 7 clear days was therefore adopted, while the standard notice period of 5 clear days for amendments was maintained as it was thought that there should be sufficient time for the President to consider the admissibility of the proposed amendments and for Members to consider the amendments when preparing for the debate.

5.32In January 2013, in the course of reviewing the arrangements for debating the 2013 Policy Address, concern was expressed in the House Committee that the holding of the debate just 2 weeks after the delivery of the Policy Address had not allowed sufficient time for Members, especially those returned from the new District Council (Second) Functional Constituencies, to conduct consultation at district level. In response to Members' request, the Government agreed that the debate on the Motion of Thanks be held 4 weeks after the delivery of the 2014 Policy Address taking into account the intervening public holidays to enable Members to have more time to consult their constituencies before speaking on the Motion.

Speaking time

5.33Prior to 2001, the debate on the Motion of Thanks was similar to other motion debates in the Council, in which each Member spoke for no more than 15 minutes and could speak only once, except the mover who could speak for another 15 minutes in making his reply. Where notice of amendments had been given, a joint debate would be held. Members were first invited to speak, and after all Members who wished to speak had spoken, the Council was adjourned. This part of the debate was held on two consecutive days of the same meeting. When the Council resumed at the next meeting, public officers were invited to speak, followed by the Mover's reply and voting on the amendments and on the motion or the amended motion. This second part of the debate was usually completed within one day. This two-part process was often called the "2+1" model.

5.34In the 2000-2001 session, in the course of reviewing the procedure for debating the Policy Address, the Committee on Rules of Procedure proposed to structure the debate in such a way that Members would speak on specific policy areas on specific days of the debate period with the designated public officers responsible for the respective policy areas to attend that part of the debate. During the term of the Second Legislative Council, two models had been tried out, including the "3+1" model^[27] used in the debate in October 2001 with each Member speaking for not more than 15 minutes in total, and the "3-day-5-session" model used to debate the Policy Addresses delivered in January 2003 and January 2004 with Members' speaking time increased to 20 minutes in total. The "3-day-5-session" model worked in the following manner:

(a)The Government and the House Committee should agree on the grouping of policy areas for 5 debate sessions immediately after the Policy Address is delivered;

(b)The 5 debate sessions would take place over 3 days, with each Member to speak not more than once in each session subject to not exceeding a total speaking time of 20 minutes in the entire debate;

(c)At the end of each session, public officers will each speak for 15 minutes subject to not exceeding 45 minutes in total for each session; and

(d)Voting on the amendment(s) and the Motion to take place immediately after the Mover has made his reply on the last day of the debate.

5.35In December 2004, the House Committee agreed that the total speaking time for each Member should be extended to 25 minutes. On 7 October 2005, the House Committee further extended the total speaking time for each Member to 30 minutes which is the present limit.

5.36No amendments to the Rules of Procedure have been made to reflect the changes in the total speaking time and the number of occasions a Member is allowed to speak on the Motion of Thanks. The various models which had been adopted in previous debates were given effect by the President by exercising his discretion in accordance with the specific arrangements recommended by the House Committee.

Grouping of policy areas for a debate session

5.37The debates were arranged to mirror the policy areas underpinning the Policy Agenda for the year. As the grouping neither followed the policy portfolios of the Bureaux nor the policy areas of Panels, it was noticed in the debate on the 2007 Policy Address that more Members wished to speak on subjects which straddled policy areas of various sessions or on various areas in one speech. This contradicted the original intention of having a more structured and focused debate whereby relevant public officers could immediately respond to Members' views on their policy areas at the end of each debate session. Following discussion with the Government, it was concluded that the session attended by the Chief Secretary for Administration and the Financial Secretary would be scheduled towards the end of the debate so that any issues not otherwise responded to by the relevant designated public officers in earlier sessions could still be raised and responded to by these officers.

5.38During the 10 years from 2002 to 2012. the five sessions basically covered five general areas including economy, social needs, education and culture, development and environment as well as corporate governance. From 2013 onwards, the subject matters are grouped according to the specific policy areas which correspond to the policy portfolios of the Directors of Bureaux.

5.39As to whether the President may allow a Member to speak on subjects which do not fall under the specified policy areas of the respective session, it will be for the President to exercise discretion, as he deems fit, to remind the Member that the relevant designated public officers are not present to listen to his views and to respond at the end of the session.

5.40The grouping of policy areas to facilitate a more meaningful debate on the Motion of Thanks is not prescribed in the Rules of Procedure or in the House Rules. It is given effect by the President by exercising his discretion in accordance with the recommendations of the House Committee after it has taken into account the views of the Government.

Chief Executive's Question and Answer Sessions

Historical background

5.41In his Policy Address on 7 October 1992, Governor Christopher Patten announced his proposal to create an office of Legislative Council President, to be elected from amongst Members. He, as the Governor, would no longer preside over sitting of the Legislative Council, but to be answerable to the Council in practice, he would make himself available once every month when the Council was in session to answer Members' questions and to discuss government policies and proposals, as well as to report on major official trips abroad and other important developments. The Governor was invited to attend a sitting of the Council on 8 October 1992 to answer Members' questions arising from the Policy Address. This Question and Answer Session (or "Session") lasted for one hour. Members generally considered that this kind of Session should each last for one and a half hours, but the Governor insisted on keeping each Session to one hour. From October 1992 to June 1997, a total of 36 Question and Answer Sessions were held, at about 7 per legislative session.

5.42The practice of holding Question and Answer Sessions at formal meetings of the Council has been adopted by each Chief Executive of the HKSAR with variations in respect of their frequency and duration. It has been a practice that the Chief Executive would address the Council at the start of the Session before Members are called by the President to raise questions with the Chief Executive.

Frequency and duration

5.43The logistical arrangements in respect of the holding of Question and Answer Sessions are usually discussed at the House Committee. Questions are then generally related to the frequency and duration of these Sessions. Members considered that these Question and Answer Sessions should be held more frequently and each Session should last longer. In July 1998, the Chief Executive decided that he would attend these Sessions 3 times a year: one in October after his policy address, one in February before the Budget and one in June. In July 2002, after the Chief Executive introduced the Principal Officials Accountability System, he decided, "in a bid to strengthen the relationship between the executive and the legislature" ^[28], to come to the Legislative Council 4 times a year, to meet with all Members. Since October 2002, it has been the practice that 4 Sessions are held in each legislative session, with one immediately after the Policy Address and 3 others to be scheduled at suitable intervals.

5.44Where needed, special Question and Answer Sessions may be held. In the 2011-2012 session, in response to the request of the House Committee, then Chief Executive Donald TSANG agreed to attend a special Session on 1 March 2012 to answer questions in relation to the series of events surrounding his acceptance of hospitality from friends and his renting of a residential unit in Shenzhen. This special Session was in addition to the 4 Question and Answer Sessions in that legislative session and it lasted for one hour.

5.45While the frequency of the Chief Executive's Question and Answer Sessions has not been laid down in the Rules of Procedure, Rule 4(a) of the House Rules provides that each Session lasts for "about one hour". Since November 2005, these Sessions have usually lasted for about one and a half hours which has remained the practice.

Date and time

5.46It has been the practice that the Chief Executive indicates the time he prefers for the Questions and Answers Sessions, with the formal decision made by the President. These Sessions were originally held on Thursday afternoon, starting at 3:00 pm. However, due to the Legislative Council's longer meetings, which on occasions have continued beyond Thursday afternoons, the President has decided that where a Question and Answer Session has been scheduled, the Council meeting which continues on the day of the Session would be suspended before the scheduled starting time of the Session and would resume afterwards. Since the commencement of the 2012-2013 legislative session, more flexibility has been exercised in determining the starting time of the Question and Answer Sessions so as to meet the needs of the Council and also of the Chief Executive himself.

Topics of questions to be asked

5.47While the Chief Executive may address the Council at the start of the Question and Answer Session on a topic of his choice, Members are also invited to suggest any specific topics on which questions would be raised at the Session. Views on the topics are invited at a meeting of the House Committee before the Session and Members' views are conveyed to the Chief Secretary for Administration by the Chairman of the House Committee after the meeting.^[29] Generally speaking, the Chief Executive will also respond to any questions put to him apart from those under the specific topics.

Manner of asking questions

5.48Rule 4(c) of the House Rules also provides that Members who have asked the least number of questions within the term of the Legislative Council are given priority to ask questions. The accumulated total number of questions asked by each Member is used in determining the priority. Where there are Members with equal priority, the President will have the discretion to decide whom to be called first. It has been the practice of the President to give regard to the order in which Members indicated their intention to ask questions and the political grouping to which the Members belong to ensure that those of different groupings would have a fair and equitable chance of asking questions. This rule was not applied to the special Question and Answer Session held on 1 March 2012.^[30]

5.49Rule 4(d) of the House Rules provides the manner in which Members are invited to raise their questions with the Chief Executive. When a Member is called by the President to ask his question, and after the Chief Executive has answered his question, he is allowed to ask a short supplementary question for the purpose of elucidation. If it is in the opinion of the President that the supplementary question infringes any of the provisions of Rule 25 (Contents of Questions), the President shall refuse to allow the supplementary question to be asked.

Other addresses and statements

Historical background

5.50In the pre-1997 Legislature, there were occasions when the Governor considered it necessary to deliver an address, other than a Policy Address, or to make a statement in the Council; mostly in response to incidents of public concern. This practice was adopted by the Chief Executive after reunification ^[31].

5.51As Rule 8(a) of the Rules of Procedure provides that the Chief Executive may address the Council at any time as he shall think fit, there were occasions when the Chief Executive addressed the Council at the start or in the course of a Council meeting, No notice is required for a Chief Executive's address; nor is it subject to Rule 19 which requires that all items of business for a meeting shall be placed on the Agenda for that meeting in the order required by Rule 18 (Order of Business at a meeting). Accordingly, the President would take into account the wish of the Chief Executive in deciding where the address is to be placed on the Agenda for the meeting concerned.

Seeking elucidation or asking questions

5.52On the question of whether Members may seek elucidation of the Chief Executive's addresses, it has been ruled ^[32] that Rule 8(a), (b) and (c) are to be dealt with separately. For the addresses delivered by the Chief Executive under Rule 8(a), they are not subject to request for elucidation or questions from Members. On 17 April 2002, the Chief Executive addressed the Council without making any specific reference to a particular rule. On that occasion, the Chief Executive took questions from Members after delivering the address^[33]. For two other addresses delivered at the Council meetings of 25 June 2008 and 17 October 2012, the Chief Executive indicated that he attended the meeting under Rule 8(a). The Presidents at the time ruled that no questions could be asked of the Chief Executive in any part of the proceedings that followed on that day on his address delivered at that meeting. As the Chief Executive is not a designated public officer, Rule 28 (which allows short and succinct questions to be put to a designated public officer making a statement) and Rule 39 (which allows interruption of a Member's speech for elucidation) do not apply to addresses delivered by the Chief Executive.

Designated public officers to make statements on behalf of the Government

5.53The Chief Executive may assign a designated public officer, such as the Chief Secretary or the relevant Policy Secretary, to make a statement in the Council on behalf of the Government for the purpose of announcing a new public policy or reporting on the progress of a major project or study.

Chief Executive's attendance at committee meetings

Historical background

5.54Although the pre-1997 Standing Orders provided that the Governor might at his discretion attend sittings of committees or subcommittees of the Council (after he was no longer President of the Council), there was no record that the Governors had attended any meetings of the committees or subcommittees of the Legislative Council.

5.55The question of whether the Chief Executive should also attend meetings of the committees of the Legislative Council other than on his own initiative has arisen from time to time since reunification. Under the Basic Law, the Chief Executive, who has the power and function to lead the HKSAR government^[34], is also accountable to the Legislative Council. It is for individual committees to decide whether the Chief Executive should be invited to the committees or subcommittees of the Council for purposes other than those provided in Rule 8(c) of the Rules of Procedure, i.e. proposing any policy, measure, bill, resolution, motion or question for debate by and in the Council or any such committee or subcommittee. Each case is dealt with on a case-by-case basis.

The SARS Inquiry

5.56In May 2004, in the course of the inquiry into the handling of the Severe Acute Respiratory Syndrome outbreak by the Government and the Hospital Authority, the Select Committee concerned considered it necessary to take evidence from the Chief Executive TUNG Chee-hwa who set up and personally chaired a steering committee to direct and coordinate the Government's response to the epidemic. Having regard to the Chief Executive's position as recognized by the Legislative Council (Powers and Privileges) Ordinance^[35], Rule 8 of the Rules of Procedure of the Legislative Council and the legal provisions relating to the power of the Legislative Council to require a witness to give evidence before it, the Select Committee was of the view that the Council had been conferred with the power to summon any person including the Chief Executive to give evidence before it. The Government however did not share this view. As more time was needed to study the question as to whether it is "constitutionally appropriate" for the head of the HKSAR to be subject to such summonses, the Select Committee subsequently requested the Chief Executive to provide written responses to its questions and had a closed door meeting with the Chief Executive in Government House on 22 May 2004 outside the formal proceedings of the Select Committee. The relevant information obtained from the Chief Executive was taken into account by the Select Committee in its deliberations and a record of the meeting was incorporated into its Report.

Inquiry on Mr LEUNG Chun-ying's involvement as a Jury member in the West Kowloon Reclamation Concept Plan Competition

5.57In another case the Legislative Council resolved on 29 February 2012 to appoint a select committee with power to summon witnesses to study Mr LEUNG Chun-ying's involvement as a member of the Jury in the West Kowloon Reclamation Concept Plan Competition and related issues. When Mr LEUNG Chun-ying was summonsed as a witness to give evidence to the Select Committee, he was a candidate in the Chief Executive Election. Mr LEUNG attended public hearings on 20 March and 21 April 2012. Although Mr LEUNG was elected as the Fourth Term Chief Executive of HKSAR on 25 March 2012^[36], no question was raised as to whether any constitutional difficulty would arise from the Chief Executive (Designate)'s attendance at the meeting on 21 April 2012 in giving evidence to the Select Committee.

Whether the Chief Executive is subject to Legislative Council's power to summon witnesses under Article 73(10)

5.58On 7 December 2012, in relation to two proposals from Members to inquire into the Government's handling of the allegedly unauthorized building works at the Chief Executive LEUNG Chun-ying's properties, the House Committee considered the issues concerning the Legislative Council's power to summon witnesses and the constitutional, legal and other related considerations for the Chief Executive to be subject to the Legislative Council's power to summon. Members took the view that the Chief Executive bears the constitutional responsibility to find the appropriate means through which the Council could properly perform its powers and functions under the Basic Law. The Committee's opinion was that Rule 8 of the Rules of Procedure was an example of such means.

5.59Article 48(11) of the Basic Law empowers the Chief Executive "to decide, in the light of security and vital public interests, whether government officials or other personnel in charge of government affairs should testify or give evidence before the Legislative Council or its committees". This power of the Chief Executive is also reflected in Section 14(2) of the Legislative Council (Powers and Privileges) Ordinance. Whether the Chief Executive's power under Article 48(11) also applies to himself is a matter to be further discussed and considered on a case-by-case basis.

Impeachment of the Chief Executive

Procedure for implementing Article 73(9)

5.60Article 73(9) of the Basic Law provides the Legislative Council with the following power and function ^[37]:

"如立法會全體議員的四分之一聯合動議，指控行政長官有嚴重違法或瀆職行為而不辭職，經立法會通過進行調查，立法會可委托終審法院首席法官負責組成獨立的調查委員會，並擔任主席。調查委員會負責進行調查，並向立法會提出報告。如該調查委員會認為有足夠證據構成上述指控，立法會以全體議員三分之二多數通過，可提出彈劾案，報請中央人民政府決定"。

(English translation)
"If a motion initiated jointly by one-fourth of all the members of the Legislative Council charges the Chief Executive with serious breach of law or dereliction of duty and if he or she refuses to resign, the Council may, after passing a motion for investigation, give a mandate to the Chief Justice of the Court of Final Appeal to form and chair an independent investigation committee. The committee shall be responsible for carrying out the investigation and reporting its findings to the Council. If the committee considers the evidence sufficient to substantiate such charges, the Council may pass a motion of impeachment by a two-thirds majority of all its members and report it to the Central People's Government for decision".

5.61In summary, Article 73(9) of the Basic Law is a provision to enable the Legislative Council to pass a motion to impeach the Chief Executive if he/she is charged with serious breach of law or dereliction of duty, and the charge is found to be substantiated by an investigation committee chaired by the Chief Justice. In 2006 the Committee on Rules of Procedure of the Third Legislative Council started deliberations on the need to provide specific rules in the Rules of Procedure to deal with the implementation of Article 73(9) given the important nature of the provision. The Committee considered that notwithstanding the specific rules to be made for the purpose, the general rules governing motions, rules of speaking, etc. should apply where appropriate. Members and the Government were consulted on the options and implementation details.

5.62In 2008, during the term of the Fourth Legislative Council, the Committee on Rules of Procedure revisited the subject and produced a proposal for a second-round consultation with Members and the Government. In this proposal, the Committee highlighted that Article 73(9) comprises three stages:

Stage I: Initiation of the impeachment procedure and motion for investigation

Not less than one-fourth of all Legislative Council Members jointly sign a notice of motion for investigation, which contains charges against the Chief Executive of serious breach of law or dereliction of duty, to give a mandate to the Chief Justice of the Court of Final Appeal to form and chair an independent investigation committee to investigate the charges.

Stage II: Investigation of charges

If the Chief Executive refuses to resign, a motion for investigation will be moved and debated in Council and if passed by a majority vote of each of the two Groups of Members present, the Legislative Council may give a mandate to the Chief Justice to investigate the charges.

When the investigation committee has completed its work, it reports its findings to the Legislative Council.

Stage III: Motion of Impeachment

A motion of impeachment may be moved in the Council if the investigation committee considers the evidence sufficient to substantiate charges.

If the motion is passed by a vote of two-thirds majority of all Legislative Council Members, the resolution so passed must be reported to the Central People's Government for decision.

5.63In the course of consultation and further discussion on the matter, the Committee considered that specific rules were only required for the two motions which concerned the Council as a whole, namely the motion for investigation (which contains the initiating step of charging the Chief Executive with the charges included as part of the motion) and the motion of impeachment. The Committee noted the Government's request for a longer notice period for the motion for investigation, to allow the Chief Executive adequate time to consider the motion and decide whether or not to resign. The Committee also noted the concerns raised by some Members about how the investigation committee set up by the Chief Justice would conduct its investigation and what would constitute "serious breach of law" and "dereliction of duty" referred to in the context of Article 73(9). Since the absence of specific rules in the Rules of Procedure would not prevent a motion of investigation being moved in accordance with Article 73(9), it was agreed that pending further discussion to deal with the issues raised and other technical arrangements, the rules in the current Rules of Procedure governing motions, rules of speaking, etc., should apply to any motions moved by Members in accordance with Article 73(9).

Actions initiated under Article 73(9)

5.64In May 2012, 23 Members jointly initiated action under Article 73(9) of the Basic Law, with one of them being named as mover of the motion for investigation, to charge the incumbent Chief Executive with serious dereliction of duty. The motion was to give a mandate to the Chief Justice for forming and chairing an investigation committee to investigate into the alleged dereliction of duty and report to the Council in accordance with the Basic Law. Details of the alleged dereliction of duty were set out in a Schedule attached to the motion. Although no rules were provided in the Rules of Procedure for motions moved under Article 73(9), the format adopted by these Members was similar to that used for moving motions under Article 79(6) and 79(7) of the Basic Law for disqualification of Legislative Council Members from office. The notice of the motion was received on 26 April 2012 for debate at the Council meeting of 16 May 2012. On 8 May 2012, the President directed that the motion be placed on the Agenda of the Council. For this debate, the general rules on motions would apply. These rules included Rule 33 on speaking order, Rule 36(5) on time and manner of speaking, and Rule 46(2) on voting on a Member's motion. However, due to the bunching of business towards the end of the 2011-2012 session, there was no chance for the Members' motion, which was placed after all Government bills and motions on the Agenda of the Council, to be moved at a meeting before the end of the term of office of the then incumbent Chief Executive on 30 June 2012.

5.65On 20 December 2012, notice was received of a motion jointly initiated by 27 Members for investigation under Article 73(9) of the Basic Law to be moved at the Council meeting of 9 January 2013. The motion, to be moved by one of the 27 Members, who was named as mover, sought to charge the incumbent Chief Executive with serious breaches of law and/or dereliction of duty, and to give a mandate to the Chief Justice to form and chair an investigation committee to investigate the alleged dereliction of duty and report to the Council. Details of the alleged dereliction of duty were set out in a Schedule attached to the motion. The motion was placed on the Agenda for the Council meeting of 9 January 2013 and was moved and debated. The general rules on speaking order, time and manner of speaking applied. The motion was put to vote in accordance with Rule 46(2). It was not passed.

5.66Under Rule 46(2), a motion moved under Article 73(9) in respect of a motion of impeachment by a Member is a motion which is exempted from the application of the voting method for the passage of a Member's motion. However, as the motion voted on at the Council meeting of 9 January 2013 was a motion for investigation and not the motion of impeachment, the voting method which requires a majority vote of each of the two groups of members from the functional constituencies and from geographical constituencies was used for this motion. It is only if the Chief Justice's investigation committee has found the evidence sufficient to substantiate the charges and a motion is moved to impeach the Chief Executive, that the voting requirement of "a two-thirds majority of all its members" as stipulated in Article 73(9) would apply.

Motions relating to the Chief Executive

5.67From time to time, motions are moved by individual Members seeking the Council's approval to set up a select committee to inquire into matters relating to an incumbent Chief Executive's performance of duty or personal conduct and/or seeking authority to order the attendance of the incumbent Chief Executive at meetings of the committees of the Council in relation to such matters. Such motions are placed on the Agenda of the Council, and are debated and voted on in the same manner as other motions^[38] , provided that the relevant notice and other requirements set out in the Rules of Procedure are complied with.

Motions of no confidence in the Chief Executive

5.68A motion to express no confidence in the Chief Executive or to call upon him to resign is different from that set out in Article 73(9) of the Basic Law. These kinds of motions have no legislative effect and are therefore an expression of opinion. The convention of the Council in debating a motion to express no confidence in the head of the Government can be dated back to July 1995 when a Member moved a motion to express no confidence in the then Governor of Hong Kong^[39]. The motion was dealt with in the same manner as other motions not intended to have legislative effect. After reunification, there were motions to call upon the Chief Executive to resign or to express no confidence in him.^[40] These motions were also dealt with in the same manner as other motions not intended to have legislative effect.

5.69Similar to bidding for a debate slot for moving a motion to express an opinion, a Member who wishes to move a motion of no confidence in the Chief Executive must first secure a slot for debate through the allocation mechanism set out in House Rules No. 13 and 14, and give not less than 12 clear days' notice in accordance with Rule 29(1) of the Rules of Procedure for the motion to be moved. This type of motion is subject to amendments. All the rules governing motions and amendments under Part G and those governing the rules of speaking under Part H of the Rules of Procedure shall apply. As this type of motion is subject to Rule 37 the House Committee would recommend a specified time limit for the President's acceptance. The times specified by the House Committee as set out in House Rules No. 17(b) also apply to motions of no confidence in the Chief Executive unless recommended otherwise by the House Committee. The motion is a Members' motion and is therefore voted on in accordance with Rule 46(2) of the Rules of Procedure, requiring a majority vote of both groups of Members present.

Rules relating to the making of references to the Chief Executive's conduct

5.70In the current Rules of Procedure, there are two provisions, namely Rule 41(7) and Rule 25(1)(j), which restrict the raising of the conduct and/or character of the Chief Executive. The two rules are as follows:

Rule 41 (Contents of Speeches)

(7)Except where his conduct is the subject of a motion to which Part JA (Procedures for Particular Motions) applies, the conduct of the Chief Executive, a Member of the Executive Council or a Member of the Legislative Council otherwise than in the performance of his official duties shall not be raised.

Rule 25 (Contents of Questions)

(1)A question shall conform to the following rules:

(j)A Question shall not be asked about the character or conduct of any person mentioned in Rule 41(7) (Contents of Speeches) and a question shall not be asked about the character or conduct of any other person except in his official or public capacity.

5.71The intention of Rule 41(7) ^[41] is that unless the conduct of the Chief Executive is the subject of a motion moved for the purpose of impeachment, Members may not raise in Council speeches the conduct of the Chief Executive other than in the performance of his official duties. This rule is referred to by the President when considering the acceptability of a proposed motion or amendment.

5.72Rule 25(1)(j) of the Rules of Procedure has imposed a more stringent restriction on Members when asking a question in the Council. Strictly speaking, no question can be asked about the character or conduct of the Chief Executive, not even in relation to the performance of his official duties. The next paragraphs illustrate the practical application of Rules 25(1)(j) and 41(7).

5.73In February 2012, following a spate of media reports containing allegations against the then Chief Executive regarding acceptance of entertainment and hospitality, the President allowed 8 urgent questions to be raised at the Council meeting of 29 February 2012 under Rule 24(4) of the Rules of Procedure in relation to those allegations. The questions were allowed to be moved on the ground that they were of an urgent character and related to a matter of public importance.^[42] At the same meeting, the President had also allowed an adjournment motion to be moved without notice under Rule 16(2) of the Rules of Procedure on the following issue: "The integrity and probity of the Chief Executive and his responsibility for upholding the fairness and impartiality of the next Chief Executive Election to be held on 25 March". Rule 16(2) deals with adjournment motions for the purpose of discussing a specific issue of urgent public importance. In considering whether this motion might cause difficulty in respect of compliance with Rule 41(7), the President's Deputy^[43] accepted that the motion itself did not target the Chief Executive's personal conduct, but rather the expectation of the public over the integrity and probity of the person occupying the post of Chief Executive, and his responsibility to uphold the fairness and impartiality of the upcoming election. The scope of debate could therefore be wide-ranging. Approval was accordingly given for the motion to be placed on the Agenda of the Council. Nevertheless, Members were reminded during the debate to note the restrictions under Rule 41(7) when speaking on the motion.

5.74At the same meeting of 29 February 2012, for which 8 urgent oral questions and an adjournment debate were scheduled, the President allowed the meeting to be suspended on the second day to enable the holding of a Special Question and Answer Session upon the Chief Executive's request. The Chief Executive had responded to the request of the House Committee and considered it an opportunity for him to address the Council on those allegations which, according to the Chief Executive, had cast doubts on his integrity and character, and to answer Members' questions. Before suspending the Council meeting for the special Session, the President took the opportunity to state his views on how Rule 41(7) applied to Members' speeches at the adjournment motion debate and how Rule 25(1)(j) applied to the questions to be raised at the Special Question and Answer Session. His views are summarized as follows:

(a)Rule 41(7) provides that "the conduct of the Chief Executive … other than in the performance of his official duties shall not be raised". The President, in presiding over the debate on "the integrity and probity of the Chief Executive and his responsibility for upholding the fairness and impartiality of the next Chief Executive Election", was mindful of whether those acts of the Chief Executive mentioned by Members in their speeches were related to the topic being debated. As he noted that no Member had referred to acts not related to the topic of the debate or acts of the Chief Executive when he was not performing his official duties, he considered that the Council had struck a reasonable balance between enforcing the Rules of Procedure and permitting Members to engage in a meaningful debate;

(b)Rule 25(1)(j) applies to the content of questions asked and it provides that Members shall not ask questions about the character or conduct of the Chief Executive. The President considered that since the Chief Executive had agreed to attend this Question and Answer Session to enable Members to raise questions regarding his acceptance of hospitality from friends and the residential flat leased to him in Shenzhen, Members were not bound by the restrictions imposed on them by virtue of Rule 25(1)(j), as the purpose of the Question and Answer Session would otherwise be defeated.

Reconsideration of returned bill

5.75As briefly described in paragraph 5.5, under Article 49 of the Basic Law, if the Chief Executive considers that a bill passed by the Legislative Council is not compatible with the overall interests of the Region, he may return it to the Legislative Council within three months for reconsideration. If the returned bill is passed again by not less than a two-thirds majority of all the Members, the Chief Executive must sign and promulgate it within one month. If he refuses to do so, and if consensus cannot be reached after consultation, under Article 50, the Chief Executive may dissolve the Legislative Council. If the new Legislative Council again passes by a two-thirds majority of all the Members the original bill in dispute, but the Chief Executive still refuses to sign it, under Article 52, the Chief Executive must resign.

Provisional Legislative Council's views on the procedure

5.76The provision of a mechanism to cater for the situation set out in Articles 49 and 50 of the Basic Law was studied by the Committee on Rules of Procedure of the Provisional Legislative Council. The Committee came to the following view, which was recorded in its report on 1 April 1998 and referred to the First Legislative Council through the Secretariat:

(a)The returned bill and the Chief Executive's reasons for the return of the bill should be carefully examined by a committee unless the majority of Members decide otherwise;

(b)The procedure should allow the returned bill to be amended after taking into account the views from all parties concerned, including the Government, the Member (who could be a public officer) in charge of the bill and other interested parties;

(c)Members should be allowed to debate the bill in the Council and amend it in committee of the whole Council if considered necessary; and

(d)The bill, irrespective of its being amended or not, should be voted on upon a motion "That the bill do pass after reconsideration". If the bill is passed in its original form by a two-thirds majority of all the Members of the Council, Article 50 shall be triggered off.

Rule 66 of the Rules of Procedure

5.77When Members-elect of the First Legislative Council considered the matter in June 1998, they agreed to provide for the time being a procedural framework in the Rules of Procedure, which would require detailed discussion at a later stage. The procedural framework was reflected in Rule 66 of the Rules of Procedure passed by the Council on 2 July 1998. From May 1999 to June 2000, the Committee on Rules of Procedure continued to examine the technical aspects of Rule 66 with particular emphasis on the process of "reconsideration", the mechanism to "reach consensus" and how amendments could be made to the returned bill. The Committee considered that procedural arrangement should be provided to enable Members to consider any new proposal from the Government and, if such proposal was found acceptable, to be able to amend the original bill. The Government accepted this arrangement as a way to facilitate compromises and to reach consensus.

5.78On 9 June 2000, the Committee on Rules of Procedure put forward its proposed mechanism to the House Committee for consultation and its proposal was agreed. A motion was moved and passed at the Council meeting of 21 June 2000 to amend Rule 66. In gist, the approved mechanism is as follows:

(a)Upon receipt of a bill certified by the Chief Executive to be returned to the Council for reconsideration (which should be done within 3 months of the passage of the bill), the Clerk shall send a copy of the returned bill to every Member and arrange to publish the text of the bill in the Gazette;

(b)The short title of the bill shall be placed on the Agenda of a Council meeting and read in the Council. A designated public officer may speak on the return of the bill, whereupon the bill shall be referred to the House Committee unless the Council, on a motion which may be moved without notice, otherwise orders. If such a motion is passed, a motion to vote on the returned bill is deemed to have been ordered to be moved, and the Council shall proceed to debate and vote on the motion;

(c)The Government may at the time introduce another bill to the Council for the purpose of amending the returned bill. Where the returned bill is referred to the House Committee, the Committee may arrange for the bill to be considered in whatever manner it deems appropriate, and where a parallel bill has been introduced, may order that the returned bill be considered in conjunction with that other bill;

(d)After deliberation of the returned bill is completed in House Committee and if no parallel bill to amend the returned bill is passed, a motion may be moved in the Council for the returned bill to be passed. No amendment may be moved to the motion;

(e)If the motion to pass the returned bill is moved and supported by not less than a two-thirds majority of all the Members, a true copy of the bill passed for a second time by the Council shall be certified by the Clerk and submitted to the Chief Executive.

Refusal to pass a budget or other important bills

5.79Article 50 also provides for the situation where the Legislative Council refuses to pass a budget or other important bill introduced by the Government. A study of the procedural arrangements for dealing with the situation was also conducted by the Committee on Rules of Procedure of the First Legislative Council in the 1999-2000 legislative session. The question of interpretation of the term "budget" and "important bill" was referred to the Panel on Constitutional Affairs for discussion with the Government. The Panel agreed with the Government's view that in the context of Articles 50 and 51, "budget" refers to the Appropriation Bill introduced by the Government for approval of the annual estimates of expenditure, while "important bills" are bills which are specified by the Government as important bills at the time when they are introduced into the Council. The Committee noted the view of the Panel.

5.80On the consultation process for reconsidering the "budget" (the Appropriation Bill), if the bill is rejected in the Council, the Committee on Rules of Procedure considered that the mechanism for dealing with a returned bill was also applicable to a new Appropriation Bill to be submitted for the Council's consideration. However the introduction of a new Appropriation Bill in the same legislative session would be caught by Rule 51(7)(a) of the Rules of Procedure which provides that a bill which contains substantially the same provisions as another bill on which the Council has taken a decision at second reading shall not be further proceeded with in the same session. To enable a new Appropriation Bill to be presented to the Council in the same session, the Committee proposed to amend Rule 51 to provide specifically that where the motion for second or third reading of an Appropriation Bill is negatived another Appropriation Bill containing the same or substantially the same provisions may be presented within the same session. This amendment was approved at the Council meeting of 21 June 2000.

Designation of public officers for attending meetings of the Legislative Council

5.81To be accountable to the Legislative Council, the Government designates officials to attend meetings of the Council and to speak on behalf of the Government in accordance with Article 62(6) of the Basic Law. This includes responding to Members' oral questions^[44] on the work of the Government and participating in the motion debates initiated by Members during Council meetings. By virtue of the power provided by this Article, the Chief Executive, being the Head of the Government, designates officials to attend meetings of the Council or of any committee or subcommittee of the Council. The list of the officials designated by the Chief Executive is set out in the Schedule under Appendix 5-A.

5.82The designations are applicable to officials who from time to time either substantively occupy or act in the posts specified. They are usually made at the start of the term of office of the Chief Executive or following major changes in the organisational structure of the Government, and continue in force unless revoked by the Chief Executive. Under Section 8A of the Legislative Council (Powers and Privileges) Ordinance (Cap. 382), a designated public officer enjoys the same privileges and immunities enjoyed by Legislative Council Members by virtue of sections 3, 4 and 5 of the Ordinance, i.e. freedom of speech and debate, immunity from legal proceedings and freedom from arrest. For those public officers who are not designated public officers but are invited to attend meetings of any committee or subcommittee of the Legislative Council, the usual practice is that the public officers concerned would seek designation from the Chief Executive on a case-by-case basis.^[45]

Relevant rules in the Rules of Procedure

5.83In order to give effect to Article 62(6) of the Basic Law, Rule 9(1) of the Rules of Procedure provides that designated public officers may attend meetings of the Council, committees of the whole Council, the Finance Committee or subcommittees of the Finance Committee and to speak on behalf of the Government. In addition, Rule 9(2) provides that a designated public officer may give notice to the Clerk to the Legislative Council of items of business to be included in the Agenda of the Council. Such items of business include the introduction of Government bills and resumption of Second Reading debates, tabling of papers and addressing the Council thereon, making of statements and moving of Government motions. Where an item of business has been placed on the Agenda, after obtaining the President's approval, the name of the office of the public officer attending for that item will be shown on the Agenda. In practice, the Director of Administration informs the Clerk of the name of the office of the public officer attending for the item.

5.84Under Rule 10(2) of the Rules of Procedure, in attending meetings of the Legislative Council, designated public officers are treated as Members of the Legislative Council, although the following rules do not apply to them:

—Rule 1 (Oath or Affirmation)

—Rule 3 (Presiding in Council and in Committee of the Whole Council)

—Rule 8 (Attendance of the Chief Executive)

—Rule 17 (Quorum)

—Rule 20 (Presentation of Petitions)

—Rules in Part J (Voting)

—Rule 71(2), (5A), (5B) and (5C) (Finance Committee)

5.85In addition to the designated public officers attending a Council meeting for specific items of business on the Agenda, Rule 10(3) provides that the Chief Secretary for Administration, the Financial Secretary and the Secretary for Justice, who are also designated public officers, may attend any meeting of the Council, committees of the whole Council and all other committees and subcommittees, unless directed otherwise by the Chief Executive.

Temporary absence of a Principal Official

5.86In April 2002, Chief Executive TUNG Chee-hwa introduced the Principal Officials Accountability System. Under this System, Principal Officials are not civil servants and they are appointed on contract. These Principal Officials are appointed to attend full Council meetings to speak on behalf of the Government, and to respond to Members' questions, initiate bills and motions, and carry out other related duties. In April 2002, the Principal Officials included 3 Secretaries of Departments and 11 Directors of Bureaux. The number of Directors of Bureaux was increased to 12 in July 2007. As the Directors of Bureaux are underpinned by the Permanent Secretaries who are not Principal Officials, in the temporary absence of a Director of Bureau, arrangements were made at that time for another Director of Bureau to attend the Council meeting and speak on behalf of the Government on established policies under the portfolio of the absent Bureau Director. These arrangements were considered not satisfactory especially during the question time at Council meetings.

5.87In 2007, Chief Executive Donald TSANG introduced under the Political Appointments System a new layer of officials to underpin the Directors of Bureaux, named Under-Secretaries, to assist the Directors of Bureaux in handling a full range of political responsibilities (including the Legislative Council business). From May 2008 onwards, during the temporary absence of a Director of Bureau and where an Under Secretary has been appointed, the Under Secretary of the relevant Bureau acts for the Director of Bureau during the latter's absence. For any bureau in which the position of the Under Secretary is vacant, if the attendance of the Director of Bureau is required at any meeting, the practice has been for another Director of Bureau to speak on behalf of the absent Director of Bureau. An exception is the stand-in arrangement for the Secretary for the Civil Service who is not provided with a politically appointed Under Secretary or a Political Assistant. The Permanent Secretary for the Civil Service will attend meetings of the Council or committees during the absence of the Secretary for the Civil Service.

Means to enhance communication between the executive authorities and the Legislature

5.88Since 1997 and even before reunification, many changes have taken place to open up discussion with the executive authorities to keep the public informed of new policies and legislative or financial proposals that may cause concern either generally or to any sector of the population. More public hearings are conducted by individual committees so that public views on any legislative proposals or new public policies can be channeled to the policy-makers in a timely manner. In this respect, the Government and the Legislature have from time to time agreed on standing arrangements to enhance communication and co-operation, some of which are highlighted below.

Consultation with the Legislative Council on public policies

5.89There is an established understanding between the Government and the Legislature that where practicable the Government should announce its important policies at the Legislative Council, either at meetings of the Council or its committees, at the earliest opportunity and should consult Members when formulating such policies.

5.90Discussion of policy issues usually takes place at meetings of the 18 Panels of the Legislative Council. All important legislative and financial proposals should be brought to the relevant Panels for initial discussion before they are formally presented to the Council or the Finance Committee respectively. Papers should be provided well in advance. The corresponding Bureau Secretary and/or his or her Under-Secretary are expected to be present at each meeting of the relevant Panel to respond to Members' questions and requests for information relating to items on the agenda.

5.91For the Policy Address and the annual budget the Government consults Members of the Legislative Council before making its decisions on new policy initiatives, proposed taxation and public expenditure.

Sufficient time for detailed scrutiny of legislative proposals

5.92There is also an established understanding between the Government and the Legislature that ample time should be allowed for the Legislative Council to study and scrutinize a bill or item of subsidiary legislation. A legislative programme setting out the timetable of the legislation to be presented to the Council should be published at the start of a new session and an updated programme be provided within the session. A meeting between the chairman of a Panel and the corresponding Bureau Secretary is held at the start of a session to consider the best timing for consultation with the Panel on the legislative proposals. A Legislative Council brief is expected to be provided by the Government on every bill and item of subsidiary legislation to be presented to or laid before the Council.

5.93For subsidiary legislation which requires a motion to be moved in the Council for approval, the Government will normally withdraw the notice of motion if it is decided that the proposed subsidiary legislation should be studied in detail by a subcommittee of the House Committee. For subsidiary legislation subject to amendment by the Legislative Council within the 28-day scrutiny period after the tabling of the subsidiary legislation (plus extension of 21 days ^[46] by resolution of the Legislative Council), the commencement date should be set after the extended scrutiny period unless there are urgent and exceptional grounds for not doing so.

House Committee's role

5.94In addition to its formal terms of reference as stipulated in the Rules of Procedure House Committee provides a forum for Members to exchange views on matters which concern the relationship between the Legislature and the Government. Following each regular meeting of the House Committee, the Chairman and Deputy Chairman of the House Committee normally meet with the Chief Secretary for Administration to follow up issues raised by Members at the House Committee meeting. The Chairman of the House Committee reports back to the Committee at its next meeting.

Communication with the Chief Secretary for Administration and the Financial Secretary

5.95It has also been the practice for the Chief Secretary for Administration to attend meetings of the House Committee periodically to explain important policies and to respond to questions from Members, and for the Financial Secretary to attend meetings of the Panel on Financial Affairs^[47] at least twice each year to provide an update on Hong Kong's economic situation and macro economic issues. The Financial Secretary also briefs the Finance Committee on the annual budget and attends the regular meetings of the Finance Committee as required.

[1]: The Address by Mr Ji Pengfei, Chairman of the Drafting Committee for the Basic Law of the HKSAR, at the Third Session of the Seventh NPC on 28 March 1990.
[2]: Secretary for Constitutional Affairs' response to a Member's question at the Council meeting on 27 January 2010. Hansard.
[3]: Articles 64 and 73(4), (5) and (6) of the Basic Law.
[4]: According to LEUNG Kwok Hung v The President of the Legislative Council of the HKSAR, CACV 123/2012, the court ruled that "legal procedures" are interpreted as the Rules of Procedure of the Legislative Council.
[5]: Articles 48(3), 64 and 76 of the Basic Law.
[6]: Articles 73(1), 56, 62(5), 72(1), 48(3), 64, 49 and 50 of the Basic Law.
[7]: Article 52(2) of the Basic Law.
[8]: Articles 50 and 52(3) of the Basic Law.
[9]: Article 74 of the Basic Law.
[10]: Articles 48(3) and 64 of the Basic Law.
[11]: LEUNG Kwok-hung v The President of the Legislative Council of the Hong Kong Special Administrative Region [2007] 1 HKLRD 387, Judgment, para. 87-88. The practice reflects a long standing convention in the UK House of Commons that financial initiative rests with the Government.
[12]: In the context of Articles 50, 51 and 52, "budgets" is interpreted as the Appropriation Bill.
[13]: Articles 62, 48(10), 64, 73(2) and (3), 48(3), 50, and 52 of the Basic Law.
[14]: Articles 73(7) and 48(6) of the Basic Law.
[15]: Articles 62, 73(10) and 48(11) of the Basic Law.
[16]: Rule 14(2) of the Rules of Procedure.
[17]: Standing Order No. 6(3) of the 1968 Standing Orders of Hong Kong.
[18]: Though not explicitly provided in the Standing Orders, sessions were at one time adopted during the office of Governor Bowen from 1884 and before Governor Des Vouex took over in 1887. Governor Bowen did give an opening address at the start of each session.
[19]: Standing Order No. 6(3): the Governor to "deliver a speech" was amended on 3 November 1971 to "address" the Council.
[20]: In the 1995-1996 legislative session, as there was a need to elect the President at the first sitting of the Council, the delivery of the Policy Address took place in the afternoon after the Council suspended in the morning after election of the President which took place after oath-taking.
[21]: Article 73(4) of the Basic Law.
[22]: A special House committee meeting was held on 5 July 2002 to discuss the Government's decision to change the delivery of Chief Executive's Policy Addresses to January each year. Discussions on the future timetable of delivery of Policy Address and Budget continued to take place in the Committee on Rules of Procedure and the House Committee between September 2002 and June 2003.
[23]: Rule 23(1) of the Rules of Procedure.
[24]: Examples are the resolution to respectively amend the Air Pollution Control (Volatile Organic Compounds) (Amendment) Regulation 2009 on 14 October 2009 and the resolutions to amend the Country Parks (Designation) (Consolidation) (Amendment) Order 2010 and extend the scrutiny period of two pieces of subsidiary legislation on 13 October 2010.
[25]: Rule 27 of the Rules of Procedure provides that Part E of the Rules of Procedure, other than Rule 25 (Contents of Questions) does not apply to questions put to the Chief Executive under Rule 8 (Attendance of the Chief Executive).
[26]: Progress report (October 2000 to June 2001) of the Committee on Rules of Procedure.
[27]: In the "3+1" model, the meeting at which Members spoke was extended from two days to three days, with a total of six sessions on specific policy areas held over three days and a general debate on general policies on the last day. Members could speak not more than once in each session and in the general debate, up to not more than 7 minutes in each speech and a total speaking time of 15 minutes. Public officers were invited to respond at the end of each session.
[28]: Address by the Chief Executive at the Question and Answer Session on 8 July 2002.
[29]: Rule 4(b) of the House Rules.
[30]: For the Special Question and Answer Session on 1 March 2012, the President considered it fair to allow Members from all political parties and groupings to raise questions and so did not use the accumulative number of questions asked by individual Members in the legislative term to decide the priority of asking questions.
[31]: Examples are Mr TUNG Chee-hwa's address on the new Principal Officials Accountability System on 17 April 2002; Mr Donald TSANG's address on the Political Appointment System on 26 June 2008; and Mr LEUNG Chun-ying's address on his concept of governance, work progress and policy direction on 17 October 2012.
[32]: President's Ruling on address by the Chief Executive under Rule 8(a) of the Rules of Procedure in respect of the Address on 17 October 2012. (22 October 2012).
[33]: Total time for address and questions was kept within 45 minutes.
[34]: Article 48(1) of the Basic Law.
[35]: Under section 8A of the Legislative Council (Powers and Privileges) Ordinance, the Chief Executive when present at a sitting of the Legislative Council or a committee shall enjoy the same privileges or immunities as those provided in or conferred on the members [Members of the Council] by section 3, 4 or 5 of the Ordinance, i.e. freedom of speech and debate, immunity from legal proceedings and freedom from arrest.
[36]: Mr Leung Chun-ying was appointed by the Central People's Government as Chief Executive of the HKSAR on 28 March 2012.
[37]: Both the Chinese and English versions of Article 73(9) are provided as it has been considered by the Committee on Rules of Procedure that the original version, i.e. the Chinese version, ought to be referred to when discussing any issues relating to the implementation of this Article.
[38]: Council meetings on 22 November 2000, 21 March 2012, 11 July 2012, 19 December 2012 and 20 February 2013. The relevant motions moved at these Council meetings were all negatived.
[39]: Council sitting on 12 July 1995. The motion was negatived.
[40]: Council meetings on 14 May 2003, 8 October 2003, 18 April 2012 and 12 December 2012.
[41]: Part JA (Procedures for Particular Motions) is mentioned in Rule 41(7) as this Part is intended to cover motions moved in accordance with provisions in the Basic Law, such as a motion for the disqualification of a Member from office under Article 79(6) or Article 79(7), as well as other motions for which the general rules on motions may not apply. Should a procedure be devised for the moving of a motion of impeachment under Article 73(9), the procedure would be likely to be included under this Part.
[42]: With the consent of the Members concerned, the House Committee decided that if the Chief Executive agreed to attend a Question and Answer Session, the urgent questions to be raised on 29 February 2012 could be changed to written questions. The 8 urgent questions subsequently became written questions after the Chief Executive agreed to attend a special Question and Answer Session on 1 March 2012.
[43]: The President's Deputy was requested in accordance with Rule 3(2) and (3) to rule on the admissibility of the motion which related to the election of the Chief Executive as the President had announced earlier that he was considering whether he would stand as a candidate for the election and had decided that he was unable to act, i.e. to make the ruling.
[44]: Rules 22 and 23 of the Rules of Procedure provide that no more than 22 questions may be asked at any one meeting and no more than 6 questions of which shall require an oral reply unless there is no debate on a motion not intended to have legislative effect at a meeting, in which case no more than 10 oral questions may be asked.
[45]: An example is the designation of Ms Elsie LEUNG Oi-sie, Member of the Constitutional Development Task Force, to attend meetings of the committees and subcommittees from 20 October to 31 December 2005.
[46]: The Legislative Council may by resolution extend the scrutiny period to the first Council meeting held not earlier than 21 days after the expiry of the scrutiny period.
[47]: Following a decision of the House Committee on 23 October 1998, the Panel on Financial Affairs has been given the duty to invite the Financial Secretary to its meetings on a regular basis. All Members of the Legislative Council are invited to attend the meetings.

Chapter 5 The Executive Authorities and the Legislature

Chapter 5

The Executive Authorities and the Legislature