Legal Adviser’s Advice

At the Panel meeting held on 11 July 1996, the Secretary for the Civil Service appeared before the Panel upon invitation to answer Members’ questions relating to the retirement of the former Director of Immigration. In summary, the SCS informed Members the Civil service Regulation stipulations relating to the giving of notice of retirement, the authority for waiving the notice requirement and factors to be considered in approving waiver of notice to retire. As regards the case of the former Director of Immigration, the SCS said, in summary, the officer tendered his notice to retire and applied for a waiver of the notice requirement at his own initiative. SCS exercised his discretion to waive the notice requirement after having satisfied that the waiver would not prejudice public interest. He did not reveal the actual reasons for granting the waiver. He said that he, as head of the Civil Service Branch, has an obligation to keep his employee’s personal information confidential.

2. In order to assist Members to decide whether or not to hold an inquiry into the circumstances surrounding the retirement of the former Director of Immigration, they have decided to seek legal advice on the following -

  1. powers available to the Panel under the Legislative Council (Powers and Privileges) Ordinance (Cap. 382);
  2. likely constraints or limitations in the exercise of these powers and;
  3. other possible options to achieve the objective of making the Administration to disclose the details.

3. Set out in the Appendix, in summary form, are the powers available to the Panel to order persons to appear before the Panel to give evidence or to produce documents.

Significant points to note are :

  1. a resolution of the Legislative Council is required to authorize the Panel to exercise the powers. This can only be obtained at a sitting of LegCo;
  2. the powers can only be exercised in respect of the matter or question specified in the LegCo resolution;
  3. the President may excuse a witness from answering a question or production of documents if the answer or the document is of a private nature and does not affect the subject of the inquiry;
  4. the witness is entitled to the same right or privilege as before a court of law, except the privilege against self-incrimination;
  5. by a resolution of LegCo passed on 25 May 1994, the authority for determining whether a claim for public interest immunity is with the chairman and deputy chairman of the Panel;
  6. if the evidence being sought relates to matters relating to the security of Hong Kong, only a public officer acting with the consent of the Governor may give such evidence;
  7. consent of the Attorney General is required for institution of prosecution for an offence under the Ordinance.

4. In terms of likely constraints or limitations, Members will note from their experience with inquiries conducted by LegCo that they vary from case to case depending on the nature of the subject matter in question. As regards cases where a witness does not wish to answer questions or produce documents, subject to provisions relating to the President’s power to excuse the witness and other rights or privileges available to the witness, the Panel’s authority is similar to that of a court of law. However, while a court has the power to punish contempt, prosecutions for contempt can only be instituted with the consent of the Attorney General. Members should also note that although a Panel does not operate under well-defined rules of evidence and practice and procedures like those applicable to a court, it may determine its own practice and procedure under LegCo Standing Order No. 60E(16).

5. Apart from the option of holding an inquiry under the Legislative Council (Powers and Privileges) Ordinance, other options, if any, would not have the force of compulsion. Rather than giving specific advice on this question, Legal Adviser would like to draw Members’ attention to the following extract from Griffith on Parliament* which describes the position in United Kingdom. The extract shows that although a Select Committee has the right to put relevant questions to a witness the sanction for refusal lies not with the Committee but with the House itself. Thus -

    “An individual including a Member of either House who refuses to supply information may be reported to the House which could order him to answer the questions or supply the requested papers. In 1986 a witness before the Trade and Industry Committee, which was examining commercial and industrial aspects of the Westland affair, gave evidence in which he made allegations of improper influence being used by two Members of the House of Lords. He refused to give their names. As this information was germane to its inquiry, the committee reported his refusal to supply information to the House. The next day the witness sent a letter giving the names. This evidence was not published but the committee severely criticised the conduct of the witness.

    From time to time Ministers and other persons or bodies resist the request to furnish select committees with particulars papers. The Procedure Committee had sought better procedures for bringing such matters before the whole House for debate and in January 1981 the then Leader of the House gave an undertaking that if there was evidence of widespread general concern in the House regarding an alleged Ministerial refusal to disclose information to a select committee he would seek to provide time to enable the House to express its view .........

    In the last resort the House may make such orders as it thinks fit requiring the attendance of witnesses (including Ministers), the giving of evidence, and the production of documents. If such orders were not complied with by Ministers, a constitutional crisis might arise in which the powers of the House and the prerogative of the Crown were in conflict. However the Government’s majority in the House almost inevitably ensures that no such order would be given.

    The real power of select committees to secure the evidence they require from Ministers and civil servants lies in publicity. Ministers do not wish to be seen to be refusing to comply with requests. So committees almost always get what they want. But the Westland enquiries show that some information may be refused, even when the reason for the refusal seems to be to save Ministers from embarrassment.”

6. In summary, the position with Select Committees of the House of Commons owes more to political reality than theoretical analysis of lawful powers of compulsion. The political reality has two dimensions -

  1. No Government would wish to be seen by the public to be unreasonably failing to assist a select committee; but,
  2. If the Government considers that the reasons for not disclosing information to a select committee outweigh the political need to be seen to be cooperating with the committee it will stand firm, in the knowledge that its majority in the House will ensure that a constitutional crisis will be avoided.

7. In Hong Kong the second political reality noted in para. 6 above may not apply, i.e. the Government is not assured of a majority in the Legislative Council. However, in practical terms, this Government disability in LegCo is countered by the fact that LegCo, unlike the House of Commons, has no lawful powers to enforce the disclosure of evidence. At the most, a motion of censure or no confidence could be passed by LegCo. (Theoretically, the Attorney General could prosecute the relevant Government official under section 26 of the Legislative Council (Powers and Privileges) Ordinance; but that would be a decision for him to take in a quasi-judicial capacity bearing in mind his assessment of the public interest, which could not be legally challenged.)

8. Legal Adviser shall be happy to provide further advice on questions of law at the Panel’s next meeting.

(Jimmy MA)
Legal Adviser
19 July 1996

* -- “Parliament, Functions, Practice and Procedure” Sweet & Maxwell, 1989 pp 449 - 45

Appendix

Summary of provisions in the Legislative Council (Powers and Privileges) Ordinance (Cap. 382) relating to a LegCo Panel’s power to order attendance of witnesses and production of documents

Under section 9(2) of the Legislative Council (Powers and Privileges) Ordinance (Cap. 382) (the Ordinance), a Panel of the Legislative Council may order any person to attend the Panel and to give evidence or to produce any paper, book, record or document in the possession or under the control of such person if the Panel is specially authorized by a resolution of the LegCo to exercise such powers in respect of any matter or question specified in the resolution.

2. Section 17 of the Ordinance provides for offences against contempt of proceedings of a Panel when exercising its powers under section 9(2). Any person who disobeys any lawful order made by the Panel requiring him to attend or produce any paper, book, record or document before the Panel commits an offence unless such attendance or production is excused under section 13. Similarly, unless excused under section 13, any person who refuses to be examined before the Panel or refuses to answer any lawful and relevant question put by the Panel commits an offence. The offence is punishable by a fine of $10,000 and imprisonment for 12 months. Under section 26 of the Ordinance, no prosecution for an offence under the Ordinance can be instituted except with the consent of the Attorney General.

3. Under section 13(2), where a person lawfully ordered to attend to give evidence or to produce any paper, book, record or document before a Panel refuses to answer any question that may be put to him or to produce any such paper, book, record or document on the ground that the same is of a private nature and does not affect the subject of inquiry, the chairman of the Panel may report such refusal to the President. The President may then either excuse or order the answering of such question or the production of such paper, book, record or document. However, if such question or the production of such paper, book, record or document is not relevant to the subject of inquiry the President must excuse the answering of such question or the production of such paper, book, record or document.

4. In addition to section 13, section 14(1) provides that a person lawfully order to attend the Panel to give evidence or to produce any paper, book, record or document is entitled to the same right or privilege as before a court of law; except the privilege against self-incrimination. The right or privilege includes what is commonly known as “public interest immunity”. According to a resolution of the Legislative Council passed on 25 May 1994, whether a claim of public interest immunity should be allowed is to be determined by the chairman and deputy chairman of the Panel. The resolution is at Annex.

5. Section 14(2) further provides that no person, other than a public officer acting with the consent of the Governor, can give any evidence or produce any paper, book, record or document relating to correspondence concerning any naval, military or air force matter or of any other matter relating to the security of Hong Kong.

Last Updated on 21 Aug, 1998